Calculation and payment of compensation for delayed work records

The work book must certainly be issued to the dismissed employee on the last day of work when making the final payment. There are only two exceptions - when the employee is simply not at work on the day of dismissal, and when the employee refuses to receive the book. It follows from this that in all other cases, the delay of the document is not legal - the work book cannot be kept at home until the inventory is taken, until the bypass sheet is issued, until the entrusted material assets are handed over, and so on. If the employer nevertheless violated the law and for any reason did not issue the work book on time, compensation for the delay in the employee’s work book is collected from him.

Compensation for delayed work record: payment for absenteeism due to the fault of the employer

If the head of the company for some reason did not issue a work book on the day of dismissal, the employee receives the right to payment of earnings for each day the document is delayed.

All days that lie between the day of dismissal of the employee and the actual issuance of the work book are recognized as forced absence time, which is paid at the expense of the employer. During the entire period of waiting for the document to be issued, the employee will receive an average salary.

If time is recorded by day, to calculate the average salary, the average daily earnings will be multiplied by the number of working days that were counted as absenteeism due to a work book not issued on time.

If time tracking is summarized, the accountant will use data on the employee's average hourly earnings. In order to find out its size, you need to divide the amount of salary that was actually paid for the hours spent at the workplace in the billing period (including bonuses and cash incentives) by the number of hours actually worked in the period. And the average salary will already be calculated as the product of the average hourly earnings by the number of working hours according to the schedule in the period for which payment is calculated.

When an employer is obliged to issue a work book upon dismissal

Based on Art. 35 of Section IV of Government Decree No. 225 of March 16, 2003, upon termination of an employment contract, the employer on the day of dismissal of the employee is obliged to:

• make the necessary entries in the work book (grounds for dismissal, date, order number);
• certify the entry with the signature of the employee responsible for maintaining work records and affix it with the seal of the organization;
• hand out the completed book to the resigning employee in person.

In accordance with the Resolution, the employee must receive a work book on his last working day, which is also considered the day of dismissal based on the order and in accordance with the entry in the work book.

An example of how compensation for a delayed work record is calculated

Ivanov V.V. was fired on his own initiative on December 9, 2013. On the last day of work, he was not given a work book. Ivanov V.V. Works 5 day work week . As a result, the book was given to the employee on February 27, 2014. The employee’s average daily earnings were 1,230 rubles 55 kopecks .

First, the accountant must determine the number of working days that need to be paid. Compensation will be paid for the period from December 10, 2013 to February 27, 2014 , that is, 52 days .

Compensation to V.V. Ivanov will be: 1230.55 rub. x 52 days = 63,988 rubles 60 kopecks .

Calculation upon dismissal: will the employer be punished if he does not give back the money he earns?

Before dismissal, employees are interested in a number of questions. When will the money earned be paid? What to do if you didn’t give your work book when you quit? Can an employer not immediately pay an employee? Is there liability for the delay in issuing a work book?

So, the situation: you quit, and the employer is obliged to pay you back. When exactly should you be paid the due amount?

Currently, the Labor Code of the Republic of Belarus answers this unequivocally: payment must be made to the employee no later than the day of dismissal. Moreover, if you did not work on the day of dismissal, then the corresponding payments must be made no later than the next day after you submit a request for payment (Article 77 of the Labor Code).

But several days have passed since the dismissal, and still no salary from the previous employer. What should I do?

It turns out that if the employer does not pay you off within the period established by the Labor Code, the employee can recover from the employer the average salary for each day of delay. In this case, you can recover funds even if only part of the amount has not been paid. Then payments will be proportional to the money that you did not receive during settlement.

Violation of the terms of calculation upon dismissal, in accordance with Part 1 of Article 9.19 of the Code of the Republic of Belarus on Administrative Offenses, entails a fine on an official in the amount of 4 to 20 basic units, and on a legal entity - up to 100 basic units.

Another interesting situation is when an employer, for some reason, delays issuing a work book.

After all, he is obliged to hand it over to the employee personally on the day of dismissal (on the last day of work).

According to the law, if there is a delay in issuing a work book due to the fault of the employer, the employee is paid the average salary for the entire period of forced absence, and the date of dismissal is changed to the day the work book is issued.

Average earnings during forced absence are determined based on 2 calendar months of work preceding the month of dismissal.

But is the employer always responsible for the delay in issuing a work book to a quit employee?

Such liability arises only if the work book was not issued to the employee in a timely manner due to the fault of the employer. If the employee did not pick up the work book because he was absent from work on the day of dismissal, or refused to pick up the document, then the employer will not be held liable. But only on condition that he performs the actions prescribed by law.

So, if an employee avoids obtaining a work book, the employer must:

• draw up an act of refusal of the employee to receive a work book;
• send written notice to the employee.

If an employee was absent from work on the last working day, the employer must send him a written notice on the same day of the need to appear for a work book. This notice is sent by registered mail with acknowledgment of receipt, indicating that the employee can receive a work book by mail if he provides written consent.

No later than the next day after receiving the employee’s written application for consent to forward the work book, the employer is obliged to send it to the address specified in this application. If such a day falls on a non-working day (weekend, holiday), you can send the work book on the day the application is received or the first working day following the non-working day. If he sends it later or does not send it at all, he will violate the law.

Having completed these actions, the employer will not be held liable for the delay in issuing the work book, and from the moment the written notice is sent, the employer will not be at fault for the delay in issuing the work book either in the first or second cases.

Kristina Smolyanova,
official website of the Federation of Trade Unions of Belarus

When compensation for delayed work records is not paid

In some situations, the head of the company is exempt from paying compensation for late work records. Compensation is not paid if:

• a woman was fired, the period of validity of the employment agreement with whom was extended until the end of pregnancy and the birth of the baby;
• the last working day did not coincide with the date of registration of dismissal (this happens when an employee loses his job due to absence from work for more than 4 hours in a row or absenteeism without good reason, and when continuation of the employment relationship is impossible due to the employee’s conviction);
• the dismissed employee did not show up for work on the day of dismissal or refused to receive a work book.

How to make a payment

The employee’s application has a free form and the following required information:

• date of dismissal in accordance with the order;
• an indication of the actual date of receipt of the document;
• reference to the regulatory basis for receiving compensation - Art. 35 Resolution No. 225, art. 234 TK).

If the employer admits guilt and decides to pay, an order is issued. Compensation for moral damages (if paid) should be included in the order. The form of the document is not regulated by law and is drawn up in the usual manner. An order to change the date of dismissal and payment of compensation can be combined:

• the order confirms the new day of dismissal of the employee;
• the previously made entry about the day of dismissal is invalid;
• an order is made to make a new entry in the Labor Code;
• compensation is awarded.

A separate order on voluntary payment of compensation for the delay in issuing a work book looks shorter.

Legislative acts on the topic

What is the liability for delay?

After a written request, the book must be issued within three working days. Responsibility for violation of deadlines and delays is as follows:

• material - Art. 234 Labor Code and clause 35 of the Rules;
• moral - Art. 237 Labor Code and Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 20, 1994 No. 10).

If the form is not issued due to the fault of the employer, the employee is compensated for earnings for the entire delay (Article 234 of the Labor Code). Moral damage, as a result of unlawful actions or inaction of the employer, is compensated in monetary form. The amount of compensation is determined by agreement of the parties to the contract.

IMPORTANT!

All disagreements between the parties are resolved in court if the party refuses to voluntarily compensate for the delay.

Common mistakes

Error: The company's accountant did not withhold personal income tax from the amount of compensation for the delay of the work book.

Comment: The manager is obliged to withhold personal income tax from compensation for the delay of the work book, since the Tax Code does not mention the exemption of this payment from tax withholding. Moreover, insurance premiums must be charged for compensation.

Error: The employer did not give the work book to the representative of the former employee and does not believe that he should pay compensation for the delay in the work book.

Comment: If the employee's representative has a duly certified power of attorney, the employer is obliged to issue him a work book, otherwise he will have to pay compensation for the delay in the document.

Delay in issuing a work book: employer's responsibility

If on the day of dismissal the employee is not issued a work book, the employer is held liable on the basis of Art. 35 of Resolution No. 225. At the same time, penalties are applied in cases where the employer is found guilty of the employee’s failure to receive a work book within the prescribed period. If there is a delay in issuing a work book, the day of dismissal of the employee is considered the day when the employee actually received the work book (taking into account the delay). The original date of termination of the employment contract in this case is considered invalid.

In addition, the employer may be held liable if, when filling out the work book, the responsible employee entered an incorrect reason for dismissal, as well as if the work book is filled out with wording that does not comply with federal legislation.

Where should I go?

Often, when parting with an employee, the employer does not return his work book. One can come up with many explanations for this. Maybe the employer simply forgot that he was breaking up with a colleague, got bogged down in worries, and the like.

And it happens that the former boss seeks by all means to postpone the moment of dismissal of a subordinate, or, even worse, seeks to make trouble for him for such a sudden step. Be that as it may, the result of all such actions is the same - the employee is deprived of his work book, which means that the new management does not sign an agreement with him and does not register him for work.

If they don’t give you your work book, it makes sense to go to the HR department of the organization. Then you need to convince competent workers to ensure that the employee’s work is returned in a timely manner - otherwise, the quitter will have the right to appeal to the appropriate authorities, as a result of which some penalties will be imposed on the institution.

ATTENTION !!! If the work was carried out in a large company, a labor conflict committee can be assembled in it; it will force the boss to give the employee his document. If it is impossible to send an appeal to a similar body within the institution, you can go to the judicial authority or the labor inspectorate. In such a situation, measures on behalf of government authorities are much stricter.

Letter of the law

Often, an employee deals with a boss who is far from a respectable and honest citizen. And if, moreover, the relationship was tense, then there are situations when the employee’s work book is not returned after payment, either on the initiative of the employee or due to staff reduction. Without a doubt, in such situations, the legislator protects the rights of the employee, and he does not need to worry, since he can stand up for himself. After all, the boss becomes a lawbreaker if he does not intend to give the employee his labor pay. In this regard, he will be required to compensate the employee for harm.

ATTENTION !!! The rights of participants in labor relations were regulated by the Labor Code of the Russian Federation, which states what to do when a document is not issued upon dismissal. Thus, Article 84.1 states that the powers of management include making a final settlement with the resigning employee and issuing the required certified copies and a document containing data on his work history.

There are only two grounds upon which the manager has the right not to issue a work book:

• If the employee is not at work;
• If he did not consent to the issuance of documents.

If, nevertheless, the manager refuses to issue this document, the person resigning should not be at a loss, but should immediately send an appeal to the appropriate authorities.

Legal proceedings when retaining a work record book

The practice of judicial authorities is practically filled with examples of consideration of such cases. Often, managers and employees of personnel departments, due to their own lack of experience and negligence, lose the work book and spend a lot of time on its new issue, and in the meantime, the volume of compensation increases daily.

ATTENTION !!! In most cases, in the practice of judicial authorities, one can encounter situations in which a manager, trying to get even with an employee, tries to hide his document far away and for a long time, without giving it back. However, unfortunately, in most cases such managers worsen their situation. By the fact that they do not issue the employee with a work book, they are simply increasing the amount that they will need to contribute towards compensation, but most careless bosses do not think about this until they appear in court at the request of their employee.

Unfortunately, such cases are not uncommon, and it will be useful to learn how to combat them and, ultimately, convince managers to respect the rights of their employees. But besides this, situations often arise in practice when a subordinate seeks to make money with the help of an honest leader. To do this, the employee deliberately destroys the document and then, after waiting for the allotted period of time to expire, files a claim with a judicial authority demanding compensation for damages.

And, it should be noted that from time to time they pay attention to such episodes, and in fact significant sums are withheld from the management for nothing. This happens because the manager, out of his own simplicity, did not require a receipt from the employee that the work was received.