Application to the prosecutor's office against the employer for not issuing a work book. Statement of claim for the recovery of compensation for the delay in the work book. The duty of the boss to give the work book to the dismissed employee. Violation of labor rights

B (indicate the name of the court to which the application is submitted)

Plaintiff / Representative of the Plaintiff: (indicate name, place of residence, other information may be indicated: phone numbers, fax numbers, e-mail addresses)

Defendant: (indicate the name of the defendant, location, other information may be indicated: phone numbers, fax numbers, e-mail addresses)

Claim price: (amount in rubles)

Statement of claim

I, (indicate your full name), in the period from "__" ________ 20__ to "__" ________ 20__ worked (indicate the full name of your employer) (hereinafter - the Respondent) in the position of (indicate the position or positions in which you worked during the specified period of time). Copy employment contract from "___" ________ 20__ year No. (indicate the number and date of the employment contract under which you worked, if any), a copy of the work book and the order for appointment to the position from "___" _______ 20__ are attached (do not forget to attach copies of the work book to the statement of claim and the order of appointment, if any).

I applied (s) to the Respondent on "___" ________ ___ year with a statement to terminate a fixed-term employment contract with me from "___" ________ ___.

After the expiry of the term of the notice of dismissal, I stopped work and filed a request to issue me a work book, a copy of the order to terminate the termination of the employment contract, a certificate of the amount wages, (may indicate other documents related to the work), as well as the final settlement with me. On the last day of work work book and the defendant did not give the indicated documents to me, he did not make a final settlement with me.

Due to the delay in issuing a work book and documents related to work with the Respondent, I was unable to get a job at new job(or other circumstances).

In accordance with article 165 of the Labor Code of the Russian Federation, the Defendant is obliged to pay me compensation for the delay through his fault in issuing a work book to me upon dismissal. The size of my average salary is (indicate the size of the average salary) rubles per day. Compensation payable is calculated for the time from "___" ________ ___ (to calculate after three days from the date of filing with a written request) and until the date of actual issue. At the time of filing the claim, the amount of compensation is (indicate the amount) rubles.

Based on the foregoing and in accordance with Articles 84.1, 165, 234, 237, 391, 392 Labor Code Russian Federation, guided by the provisions of Articles 22, 24, 131, 132 of the Civil Procedure Code of the Russian Federation,

Request from the Respondent my work book, a copy of the order to terminate the employment contract with me, a certificate of the amount of my salary (other documents related to work).

To collect from the Respondent in my favor the salary not paid to me upon dismissal for (indicate the period) in the amount of (indicate the amount to be recovered) rubles.

Due to the delay in issuing me a work book, to collect compensation from the employer in the amount of (indicate the amount to be recovered) rubles.

Appendix: (attach to the statement of claim all available documents in your case, listing them and briefly describing them):

1. A copy of the statement of claim on ___ sheets in ___ copies (indicate the number of sheets of the statement of claim, the number of copies by the number of defendants and third parties);

2. A copy of the employment contract dated "_" _______ 20__ year No.__ on __ sheets (indicate the number of sheets of the contract, the number of copies by the number of defendants and third parties if they do not have the specified document);

3. A copy of the order on appointment to the position on ___ sheets in ___ copies (indicate the number of sheets, the number of copies by the number of defendants and third parties if they do not have the specified document);

6. Calculation of the amount recovered (signed by the plaintiff, his representative) on ___ sheets in ___ copies (indicate the number of sheets, the number of copies by the number of defendants and third parties).

7. Documents confirming the circumstances on which the plaintiff bases his claims, copies of these documents for the defendants and third parties, if they do not have copies.

8. Power of attorney or other document certifying the authority of the plaintiff's representative.

"___" __________ 20__.

Plaintiff / Representative of the plaintiff (if he has the authority to sign the application and submit it to the court): _________ (full name and signature).

A sample, a form for filling out an application to the court of the Russian Federation if they do not issue a work book. In accordance with article 165 of the Labor Code of the Russian Federation.

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The question "what to do if the employer does not give the work book?" common. First of all, you need to try to resolve the issue with your boss in an amicable way. If this method did not solve the problem, then you need to go to court to defend your labor rights.

The duty of the boss to give the work book to the dismissed employee. Violation of labor rights

The legal relations that arise in this area are governed by the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation). regulates the employer's obligation to return the work book of an employee who leaves:

“On the day of termination of the employment contract, the employer is obliged to give the employee a work book and make payments with him in accordance with Article 140 of this Code. At the written request of the employee, the employer is also obliged to provide him with duly certified copies of documents related to the work. "

Refunds must be made on the last day, which is considered to be a working day on the basis of a letter of resignation or for other reasons.

Important: the employer may incur administrative responsibility in the event that they are indicated in the work book.

The legislation of the Russian Federation identifies several cases in which the employer has the opportunity not to issue a document to the employee and not be punished:

1. On the day when it is planned to terminate the employment contract, the employee is absent from the organization.
2. The employee himself refuses to take the book.

In this case, the boss needs to send a notification to the employee that he must pick up all his documents. If after that he is not, then the papers are sent by registered mail.

By law, the organization issues a document on the last working day or within three days after an application is received from a resigning citizen.

How to pick up a work book from an employer

The most effective way to resolve this issue is to draw up a statement of claim and submit it to the court. It is best to fill out this paper with the help of a lawyer, since important points can be missed when drafting.

Attention: you must first notify your superior and send him a regular extradition request.

If the boss ignores the request, it is necessary to go to court. The employee's action algorithm is as follows:

1. Drawing up a statement of claim (the rules below must be observed). You can submit an application to the district court at the location of the enterprise.
2. You can file a lawsuit in court within a month from the date of dismissal. That is why you should not delay the process.
3. After filing, the trial begins. After the decision of the court, the employer is obliged to pay compensation for the delay and return the book.

Lawyers highlight the main points that must be observed when writing a claim on this issue:

1. The legal action provides for a special structure. It must be observed.
2. Each fact and offense is indicated to accurately describe the tort.
3. The general content of the claim should be placed in a volume equal to three sheets.

The application itself, which is addressed to the employer, may look as follows:

In addition, the person has the right to write a complaint against the manager and address it to Rostrud. Rostrud is a special inspectorate that supervises labor and employment. The complaint is filed as follows:

The term of a citizen's appeal is not limited. The inspectorate allocates 30 days for the consideration of his application.

Responsibility for keeping the work record book with the chief

Delaying a work book is an offense. The Labor Code of the Russian Federation establishes the provisions that the official heading the organization undertakes to compensate the damage caused to the employee (as well as):

"The party to the employment contract (employer or employee) that caused damage to the other party shall compensate this damage in accordance with this Code and other federal laws. " (Labor Code of the Russian Federation Article 232)

"The employer is obliged to reimburse the employee for the earnings not received by him in all cases." (Labor Code of the Russian Federation Art.234)

“Violation of labor legislation and other normative legal acts containing labor law norms, unless otherwise provided by parts 3, 4 and 6 of this article and article 5.27.1 of this Code,

- entails a warning or the imposition of an administrative fine on officials in the amount of one thousand to five thousand rubles; on persons carrying out entrepreneurial activity without education legal entity, - from one thousand to five thousand rubles; for legal entities - from thirty thousand to fifty thousand rubles. "

It is noteworthy that the size of the fine for legal entities and individual entrepreneurs differ. The legal entity must pay from 30 to 50 thousand rubles. In turn, the individual entrepreneur pays from one to five thousand rubles.

The institution of moral compensation in the Russian Federation is rather poorly developed. That is why in this case everything is individual. The court considers each specific case and makes different decisions.

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Topical issues

Does the employer have the right not to give the work book without a work-around sheet?

According to the legislation in force on the territory of the Russian Federation, the head is obliged to return the citizen's document (in this case, the book), even if there is no bypass sheet. Labor legislation does not regulate the mandatory presence of a work-around sheet.

The employer didn’t return the book, didn’t make the payment and disappeared. What to do?

In order to decide this problem, a person must first apply to Rostrud with a complaint and point out the violation of his rights.

If the situation is not resolved, you should file a statement of claim directly with the court.

The employer did not formalize the employee, and he does not give the employee. What to do?

In this case, you must contact law enforcement... This is a serious offense. It is worth noting that there is no specific norm in the legislation that can regulate the procedure in this case.

The boss does not return the work book and does not fire - what to do?

This case is a violation of the employee's rights. There are two ways to get out of the situation:

1. Hold the head of the organization accountable. The attraction will take place according to the Code of Administrative Offenses of the Russian Federation, namely, according to. By law, the organization will pay a fine.
2. Submit a statement of claim to the court with a request to recover funds from the organization. The resigning person also has the right to compensation for moral damage.

Is the new work book legal?

It is possible to get a new work book, but there must be a reason for this. In case of its loss, a statement is written to the name of the new chief, after which such a possibility is confirmed and a new book is started. If a person indicates false reasons for the establishment of a new document, then he is threatened with several types of liability (disciplinary - dismissal, administrative - a fine, in extreme cases, criminal).

Where to restore labor?

The work book is restored at the current workplace by means of an employee's application. A new document is approved within 15 days. It is noteworthy that after accepting the application, the boss sends a request for data to the previous workplace.

In what cases the employer's liability is excluded

Chapter 38 of the Labor Code of the Russian Federation regulates financial responsibility employer. It is noteworthy that it does not establish certain circumstances in which the boss has the right not to pay compensation for the harm caused.

It only establishes the obligation of payments.

Watch a video on what to do if the former employer does not give the work book

July 3, 2018, 13:47 Jul 30, 2018 23:46

A worker, if he does not have one, can be a serious obstacle to resolve the issue of employment, significantly reducing the opportunity to negotiate with the employer.

Labor legislation, as well as civil proceedings, closely monitor the observance of the employee's rights by the employer and hold him liable for the timely return of the Labor Code after dismissal. The law is binding.

Terms of issue upon dismissal

Labor legislation provides for the dismissal of an employee in compliance with certain sequential actions:

1. Submitting an application for resignation and signing it with the manager knowingly, 15 days before the termination of the employment contract.
2. Obviously, 3 days in advance, warning the employee upon dismissal for disciplinary action.
3. Issuance of an order by the employer.
4. Making an entry in the "information about the work" in the labor. What kind of seal is put in the work book upon dismissal - read.

Based on Art. 84.1 of the Labor Code of the Russian Federation, laborer must be issued at his request on the last working day. On this day, an appropriate record of dismissal must be made in the document, based on:

• on the corresponding article of the Labor Code of the Russian Federation;
• on the issued order of dismissal.

In addition to making an entry, the employer or an authorized person prepares documents where the signatures of the person receiving the book will be entered. These include:

1. Personal account card of employees of the organization (enterprise).

If it is withheld or not issued within the specified period due to the fault of the employer, he is obliged to in good faith postpone the day of dismissal to the date when the employee is duly transferred to him.

For the additional period required to organize the issuance of the Labor Code, the employer is obliged to pay an allowance based on the average wage of a retired employee.

If the resigned person could not receive it within the next three days, such a delay can be considered a gross violation of the legal rights and freedoms of a citizen of the Russian Federation.

In particular, the right to free labor, which is an inalienable constitutional right of every citizen of the Russian Federation.

Does the employer have the right not to give?

The employer does not and cannot have such a right. Not only does he not have the right to detain the document, he is obliged to show activity and initiative if the employee is negligent in receiving his own book.

On the last working day of the resigning person, the authorized employee, is obliged to call him or otherwise contact him and remind him of the need to pick up the TC.

If the employee is not present at the workplace on the last day, the employer is obliged to notify him in writing, by registered mail, of the need to pick up his book.

The documents of the sent notification must be kept in the personal file of the former employee. The TC must be returned even if the employee is outside the village and cannot personally receive his book.

In this case, you can use the following options:

1. With the written consent of the dismissed employee, it is sent by the Russian Post.
2. Transfer it through an intermediary on the basis of a power of attorney certified by a notary.

In no case should you:

1. Withhold the TC if the employer has imposed material responsibility on the employee.
2. Force him to sign a detour sheet or otherwise delay the issuance of the TC.
3. To force a specialist to perform (complete) the work necessary for the employer.
4. Blackmail him and threaten him, for example, with dismissal "under the article" in case of refusal to comply with the employer's condition.

Knowing about the impending labor liability for non-issuance, the employer, who does not want to let go of the employee he needs, usually acts in a different way - does not accept his letter of resignation.

An employee's ability to receive (establish) a TC, instead of a book not issued by the manager?

A work book is a special accounting document that must be kept in conditions of increased protection, which does not allow:

• damage;
• theft;
• lose.

The storage rules for the TC are indicated by the Decree of the Government of the Russian Federation of April 16, 2003 N 225 "On work books".

On their basis, it is determined that a new book, instead of a lost one, can be issued only on the basis of a document stating that it must be replaced. However, the issue of loss or damage to labor will become a burden of responsibility for the person authorized to keep it.

If, instead of a work one, you are issued a certificate stating that it is damaged, as well as an act that confirms this, you can count on the fact that at your new workplace you will be provided with a new book. If you consider the issue of replacing a labor in court, the perpetrator will compensate for the losses for its restoration.

Where to go if you do not give your work book - read.

If replacement documents are not provided, a new booklet will not be issued to replace the lost one. In this case, you have the following options:

1. Wait for the solution of the issue through the court, on the basis of which a new book can be entered. In this case, the entire previous work experience can be restored.
2. Inform the employer that the book has been lost. He will start a new one, but the responsibility for its absence will be assigned to you, and not to the former employer who did not return it.
3. Start a shopping mall at a new job, without the possibility of restoring the old one. Work experience will not be restored, but you will not miss out on a new employer's offer.

The latter method does not rely on the legal basis, however, in none of the instructions or provisions on the use of the TC, there is no indication of the illegality of such actions.

If the employer does not give the work book, what to do

The following cases are most common when the employer avoids issuing a labor certificate or outright refuses to issue it:

1. Does not want to let the employee go, as he needs him for the production process.
2. Demonstrates his power among the members of the work collective, realizing the degree of the violation.
3. He is incompetent in matters of labor law and is poorly aware of his responsibility.
4. The employee is lost or damaged, and the authorized person is trying to avoid responsibility.

Knowing the motives for the detention of labor, you will be able to orient yourself most adequately in the ongoing process. If they are not clear to you, you need to cover them with a single algorithm of actions.

They do not give the work book after dismissal - where to go?

Act with confidence, the protection of the employee's rights in labor disputes can be considered in various instances, where to go if they do not give the work book upon dismissal:

1. The Commission on labor disputes(CCC) at the enterprise from which you are leaving.
2. Labor Inspectorate of your area.
3. By the District Court at the location of the organization.
4. The prosecutor's office.

Terms of application

Keep in mind that the solution to the question has 1 month limitation period on all issues concerning labor relations... By a court decision, he can be extended up to 3 months, subject to your active attempts to return the TC from the employer.

Framework the deadline motivated by the fact that for the forced time of your absence, while you could not receive your book from the employer, you are entitled to compensation in the amount of the average salary paid to you in your last position. Accordingly, the terms of the provided payment are limited.

This period is counted from the last day of work at the enterprise, in accordance with the order of dismissal. But if the order is not issued, and your application disappeared for unknown reasons, you will have to act from the very beginning, submitting an application in accordance with all the rules.

Write a statement in duplicate, submit it to the head, explaining that he must sign the first statement as the person in charge, and the second copy is a copy. A copy is needed for safety net, in order to avoid the precedent of losing the submitted application.

After signing both copies, leave one of them for production, checking that it was correctly registered in the journal of incoming correspondence. Leave the second copy for safekeeping.

After that, after 15 days, you have the right to demand the issue of labor. In this case or in other situations, when the employer has already issued a dismissal order, the book is issued without delay. If it is not issued within three days after dismissal, you have the right to apply to the CCC, if it is available in your division or at the enterprise.

In other cases or at your discretion, you can contact the labor inspectorate... According to the resolution issued by these organizations, which defend the interests of workers, it is possible to obtain a detained book.

If you are denied consideration of the issue or the decision is not in your favor, after the received refusal or negative decision, you can submit documents to the district court at the location of the defendant's organization (Article 35 of the Arbitration Procedure Code of the Russian Federation). Without preliminary consideration of the issue by the CCC or the labor inspectorate, the court will not accept documents for production.

However, pay attention to the reason for the refusal to consider your question. In some cases, the employer is relieved of responsibility for the late issuance of the TC. These may include situations:

1. If the date of dismissal does not coincide with the last day of work of the dismissed on the basis of clause 6 of part 1 of article 81 or clause 4. Part 1 of Article 83 of the Labor Code of the Russian Federation (Part 6 of Article 84.1 of the Labor Code of the Russian Federation).
2. Upon dismissal of a woman, the term of the contract with which was extended on the basis of pregnancy (part 2 of article 261).
3. After the employer has taken appropriate steps to transfer to the labor owner.

In these cases, the employee can apply with a request to issue or send a document, there should be no obstacles in terms of receipt.

Sometimes not issuing a book is associated with serious problems, which comprehensively affect several aspects of labor legislation. For this reason, many employees immediately apply to the prosecutor's office.

It is necessary to apply to the district prosecutor's office of the region where the organization against which the complaint is being filed is located. The employee writes a statement to the prosecutor.

One small nuance is needed to apply - the employer really did something wrong to you, and you did everything in the right way.

In this case, the appeal will be as effective as possible, and the presumptuous leader will answer for all violations at once, which will be revealed by the prosecutor's check. Based on the results of the prosecutor's check, you will be given a document and paid for the forced absenteeism.

, unlike a claim, is written in free form, without references to articles and other grounds. Here you just need to state the circumstances of the case in a laconic form, indicating:

• dismissal dates;
• organization name;
• your personal data;
• personal data of the responsible person.

Application to the prosecutor's office for non-issuance of a work book - sample:

The standard in this application should be only the "header", which is drawn up in the upper right corner of the A4 sheet. In it, in strict sequence, the following should be indicated:

1. To the prosecutor (indicate the name) of the district, city (name).
2. Surname, name, patronymic of the prosecutor.
3. From whom, indicating the surname, name, patronymic, home address of the applicant.
4. Applicant's contact phone number.

After the name of the document, the text itself is drawn up, with a request for a prosecutor's check in order to protect your rights. Indicate that the work book was not issued to you illegally. Expect the results, which will certainly be presented to you in writing.

Employer responsibility for storage and production of TC is imposed on the basis of Article 45 of the Rules (No. 225), which declare the need to organize conditions in production, where the degree of protection of these documents will be extremely high.

In addition, responsibility can be imputed to a specially authorized person on the basis of job descriptions or the order of the head.

The responsibility in this case will turn out to be considerable. In accordance with Art. 5.27 of the APC RF, he can be held liable in the form of an administrative fine from 30,000 rubles to 50,000 rubles. The authorized person can be fined in the amount of from 1,000 rubles to 5,000.

If, through his negligence or abuse, a worker or several persons have been lost, which entailed unpleasant consequences for them - responsibility can go to the level of criminal:

1. On the basis of Article 140 of the Criminal Code of the Russian Federation - not providing information.
2. On the basis of Article 293 of the Criminal Code of the Russian Federation - negligence.
3. Art. 324, 325 or 292 of the Criminal Code of the Russian Federation are imputed in the case of a deliberate self-serving order of a worker.

In addition, in a civil suit in court, an employee who has suffered from a work book not issued on time has the right to recover compensation for moral damage from the employer.

Recovery takes place by filing a statement of claim with the district court at the location of the employer. There are more than enough legal grounds for this - these are Article 151 of the Civil Code of the Russian Federation. Also articles of the Labor Code of the Russian Federation: 3, 21, 22, 237, 294.

Usually, moral damage is recovered along with material damage, which in this case will be the payment of a forced absence. You can recover moral harm for the suffering caused to you, related to the violation of your rights, for discrimination, humiliation that you have suffered from the employer who did not want to give out labor.

It is very appropriate to recover non-pecuniary damage in case of an offensive, derogatory form of behavior towards you in the presence of third parties.

If there are facts of a difficult life situation in which you were very difficult and morally uncomfortable- indicate this in the application. For example:

1. You got upset nervous system and you went to the doctor (provide a certificate).
2. You started to feel depressed and needed the help of a psychologist or psychotherapist.
3. You suffered from powerlessness and resentment that you were treated unfairly.

All your claims expressed in the lawsuit must be confirmed by certificates or testimony and ask the court to recover for moral damage a specific amount of money determined by you.

Conclusion

If after your dismissal your book has not been issued to you, act in complete confidence, demanding its issuance, regardless of the motivation for keeping the work book by your former boss or the person authorized to issue it. The employer does not have this right.

In this case the employee has every right to enforce his claims and support from higher authorized organizations, regardless of the reason why the work book was not returned.

For the loss of this document, the manager and the employee responsible for storage will be charged with administrative, and in some cases, more serious liability.

The Labor Code defines the obligations of the parties to the employment contract, including the actions of the employer upon dismissal of an employee. In particular, he must pay for the hours actually worked and issue Required documents... If the employer for some reason does not give the work book, he violates the provisions of the law, may be held liable and forced to pay compensation for the employee’s downtime.

Legal framework

Issuing a work book upon dismissal is one of the main duties of an employer. It is directly indicated in Art. 84.1 of the Labor Code of the Russian Federation. There are also described cases when he is released from liability for failure to comply with this prescription:

• the quitting employee is not present, and he did not appear to receive documents;
• the employee explicitly refused to take the documents.

Only two these grounds may serve as a reason for not issuing a work book. Others are considered illegal, among them:

• lack of a bypass sheet;
• when leaving, the employee did not pay off the debt for the damage caused;
• material values ​​and equipment have not been handed over.

To rule out abuse by a former employee, the organization can send him a written notice or telegram demanding to appear for documents. From the moment of dispatch, the employer is released from liability for non-issuance.

Legislatively, the procedure for issuing labor upon dismissal is not defined. The TC contains only an indication of such a need. Certain situations may be regulated by local acts, for example, prescribing to sign for receiving documents.

The term for issuing a book upon dismissal is determined by the day of termination of the contract or by three days when the retired employee wrote an application for issuance.

The Administrative Code contains article 5.27, which provides for liability for violation of labor laws, including a situation when an employee is not given a work book. The sanction depends on the repetition: the first time the company will pay from 30,000 to 50,000 rubles, the second from 50,000 to 70,000.

In this area, the Government's Decree "On work books", clarifications of the Supreme Court of the Russian Federation, and judicial practice have been developed.

Employee actions

Faced with a situation where the employer does not give the work book to the dismissed employee, it is necessary:

1. Write an application requesting the issuance of a document. It should be sent through official channels of communication (through the office, mail, courier). The second copy must contain a mark of delivery, or there must be an inventory and a receipt confirming the sending of the application by letter. The application must indicate contact number and the desired method of receipt in person or by mail.
2. Going to court or labor inspectorate. Both of these instances can oblige the employer to fulfill his obligations to the former employee.

Labour Inspectorate

This body examines disputes arising in the field of employment. It is to him that you can apply if the terms for issuing labor are violated. The peculiarity of the appeal lies in the possibility of initiating a full check in relation to the company. If a complaint is received about a violation of labor rights, the head of the unit has the right to make a decision to verify compliance with other legislative norms. A full-scale audit is fraught with the identification of numerous violations and, as a result, large fines for the company.

In addition to the organization as a legal entity, the manager will also be punished for the untimely issuance of the book. If the employer is an entrepreneur, then he will be held accountable.

The imposition of a fine does not release from the obligation to issue a document to a retired employee.

Judicial authorities

If the employer does not give the work book upon dismissal, he actually deprives the employee of the opportunity to work and earn money - this is a recognized judicial position. Therefore, for all the time of downtime caused by the actions of the organization, its former employee will receive compensation. The possibility of receiving money makes a judicial option for resolving a dispute the most acceptable.

Application to court

In case of violation of the terms and procedure for the issuance of labor claims are drawn up according to general rules... Indicate the court, name of the plaintiff, name and address of the defendant. The main text describes the situation in detail, provides links to the norms of labor legislation. The sample can be downloaded here:

Evidence is attached to the document: orders for employment and dismissal, a copy of the contract, refusal to issue. These documents may not exist, the applicant may indicate the impossibility of obtaining them and ask the court to help collect evidence. Failure to comply with a request from this body is fraught with punishment.

According to Art. 292 of the Labor Code, the following terms of appeal are set for leaving employees: one month after dismissal and three months from the date of violation of rights.

Dismissal under article

In case of violation of discipline, internal acts, when an employee is dismissed under a "bad" article, a dramatization of violation of rights occurs and a subsequent statement that they refuse to give him the document.

In court, all the nuances will be clarified - the employer will not be punished and such an employee is not obliged to transfer payments for idle time. It is important that the former employee signs or otherwise confirms receipt of the book.

The employer cannot be found

If the employer does not issue a work book to the employee, does not make a calculation and in every possible way avoids terminating the contract, there are few options:

1. go to the labor inspectorate or court;
2. if the company or the entrepreneur is liquidated, take up the restoration of documents.

To confirm the length of service, it is permissible to contact the authorities that accepted the mandatory payments: the Pension Fund and the tax office.

The employer did not formalize

It is possible to prove the existence of an employment relationship only in court. It is difficult to do this due to the lack of proper evidence. If you manage to attract colleagues or contractors of the employer to your side, the business will be completed successfully. In all other cases, it is recommended to negotiate with the manager. Additionally, the employee has the opportunity to receive assistance in the labor inspection.

Failure to issue a work book upon dismissal is a gross violation of the legal rights of an employee. But few people know that an employee can not only bring a former manager to justice, but also receive moral and material compensation from an unscrupulous employer.

Often, the reason that a dismissed employee did not receive this document on time may be not only the negligence of the personnel department, but also a tense relationship with the manager. An attempt to harm or manipulate an employee by keeping one of the main labor documents, leads to especially unpleasant consequences if the resigning person does not just leave, but plans to get a new job in the near future.

In most cases, it is pointless to sort things out with the former leadership, ask or make a scandal, all this can only worsen the situation. It is entirely possible to protect yourself by staying calm and acting in accordance with labor laws. Where should a dismissed employee go? What should you do if, after dismissal, the employer does not give the work book? What can you do to compensate yourself for the losses associated with these misconduct?

The obligation to issue a work book to a dismissed employee. When an employer violates

The Labor Code of the Russian Federation, namely Art. 80 and 84.1 of the Labor Code of the Russian Federation, obliges any employer to issue a completed work book no later than on the last day of work, which will also be the day of dismissal of the employee. The work record book, as well as other documents confirming information about labor activity, are issued personally to the employee. In exceptional circumstances, for example, if a former employee is convicted and is in the place of serving a sentence, his relatives can receive a work book by proxy.

But if, under any pretext, the employer does not give the work book, what should be done first of all? Having received a refusal to issue this document, the dismissed employee has the right on the same day to transfer to the employer's representative or to the personnel department a written application (application) for the issuance of a work book after dismissal. The term for considering such an application is three days, during which the employer is obliged to satisfy the legal requirement of the employee by handing out the work book to the resigning person.

A trade-union organization, if there is one, can contribute to a conflict-free resolution of the situation to a large extent. A representative of the trade union committee can not only explain the rights of the employee or help to draw up a written appeal, but also act as an intermediary in negotiations between the dismissed employee (group of employees) and representatives of the employer.

Application (appeal to the employer): how to write?

The application is written in free form on a standard A4 sheet. It contains the following information:

• Full name and contact details of the applicant (employee).
• The requirement to give the applicant a work book in connection with the dismissal in person.
• Date of compilation of the appeal.
• Signature and transcript of the signature of the applicant.

If, for some reason, the employee is not able to personally appear later for his work book, consent to send the document by mail can be attached to the application. The consent should indicate the address to which the work book of the dismissed employee should be sent.

The application or written appeal should be made in two copies, one of them is sent to the employer. On the second copy, the employer's representative puts a note on the receipt of the application with his signature, the employee retains this document. If the employer's representative refuses to accept the application or leave a signature on the second copy, the written request should be sent to the employer's organization with notification by registered mail.

Of course, if the failure to issue a work book by the employer was the result of an error in the work of the personnel service, an ordinary written appeal will be enough to correct the situation. It's another matter if, by keeping the documents, the employer deliberately prevents the former employee from finding employment. In such a situation, it will not be possible to solve the problem without contacting the regulatory authorities or the court. What should an employee do if they do not give out a work book on purpose?

Application to the department of labor and employment inspectorate. What are the consequences of contacting Rostrud?

If they do not give the work book or refuse to send the document by mail, the next step of the employee will be to contact the territorial office (Rostrud). An employee who is deprived of the opportunity to work and earn money can write to the head of the local branch of Rostrud a complaint (statement) about the failure to issue a work book with a request to check and bring the former employer to administrative responsibility.

An application to the labor inspectorate is drawn up in writing in two copies or filled out in a special section of the Rostrud website via the Internet. The application will need to detail the following:

• Information about the employer: name, TIN, OGRN of the organization, legal and actual address, full name. and the position of the head.
• An offense in respect of which a check should be carried out, with reference to the articles of the Labor Code of the Russian Federation. In the case under consideration, this is the retention of the work book by the employer after the termination of the employment contract with the citizen.
• Request to take action: conduct an audit of Rostrud, bring the former head to administrative responsibility, oblige personnel service return the work book to the dismissed citizen.
• Copies of supporting documents, for example, an employment contract with an employer (list of attachments and copies).

In addition, if you initiate a visit of a labor inspector to an organization, then not only the fact of unlawful retention of a work book will be checked, but all the activities of the employer within the competence of Rostrud. Based on the results of the inspection, the employer will be given an order indicating all violations identified in the organization and the time frame for correcting them. Including the period set aside for the issuance of all required documents to the dismissed employee.

Along with the application to the Labor and Employment Inspectorate, the former employee has the right to submit a written complaint about illegal actions to the prosecutor's office at the location of the former employer. In this case, on the fact of violation of the legislation in terms of labor rights, a prosecutor's check will also be carried out.

Administrative responsibility of the employer. Fines, sanctions

Failure to comply with the issued order, including violation of the deadlines for handing out or timely issuing a work book, gives the Federal Labor and Employment Inspectorate the right to bring an employer who has violated the law to administrative responsibility. The fine for not issuing a work book upon dismissal for a legal entity can range from 30 to 50 thousand rubles. Executive, that is, the manager, or who did not issue the work book on time, may receive a punishment in the form of disqualification for up to three years or a fine of 1,000 to 5,000 rubles.

But if, despite the inspection of Rostrud and the issued order, the employer does not give the work book, what should the employee do?

How to oblige a former employer to issue a work book through the court

How else can you act if you do not give your work book? Go to court. It is not worth delaying the appeal to the court. The limitation period for failure to issue a work book and other documents on the day of dismissal is limited to 3 months from the date of termination of the employment contract.

Litigation is the most common and effective method restoration of violated rights if the employer does not give the work book. What to do to legally oblige the former boss to issue a completed work book?

To begin with, the employee must correctly draw up a statement of claim. You can write it yourself or seek help from legal advice. You will need to provide the following information:

• Information about the plaintiff (applicant).
• Periods of work and position of the applicant, date of dismissal.
• Information about the employer.
• The offense committed against the applicant, with reference to the articles of the Labor Code of the Russian Federation.
• The applicant's request: issue a work book, make changes to existing records, and so on. The claim for non-issuance of a work book also includes requirements for moral compensation and compensation for material damage, if any.
• Attachments: copies of supporting documents.

A copy of the statement of claim is handed over against signature or sent with a registered letter to the defendant, that is, to the employer.

Moral compensation for the employee

Compensation for moral damage caused by the former boss by his actions is made in accordance with the procedure established by Art. 237 of the Labor Code of the Russian Federation. The amount of payments for a dismissed employee is established by the court taking into account all the circumstances of violation of laws and labor rights committed by the former employer.

Material compensation to the employee

Failure to issue (withhold) a work book at a previous job deprives a citizen of the opportunity to find a job in a new place or apply for temporary support to the Employment Center. Thus, the employee is left without the opportunity to receive or wages. What to do? Do they not give the work book or deliberately delay the issuance of this document? This is primarily a reason to demand compensation for wages through the court for the period when the employee could not find a job due to the fault of the former employer. For each day of forced inaction, the court will oblige the employee to pay compensation in the amount of at least the average earnings in the organization of the former employer.

Length of service and day of dismissal

Another violation of the rights of a dismissed employee concerns work experience, which the employee lost due to the fault of the former employer. By a court decision, the employee is reinstated at work for the entire period when the work book was with the unscrupulous employer. The day of dismissal will be recognized as the day when the employee was actually issued a work book and other documents confirming information about work and length of service. After the entry into force of the court decision, the employer is obliged:

• Issue an order to reinstate the dismissed employee at work, in the position he held at the time of dismissal.
• Make an entry in the work book of the reinstated employee on the invalidation of the previously made entry on the termination of the employment contract with the employee.
• Issue a new one dated on the day of issue of the work book.
• Make a corresponding entry in the work book.

Important! Reinstatement does not entail an employee's obligation to complete this period.

Circumstances and Measures Precluding the Employer's Liability

But is the law always on the side of the worker? Failure to issue a work book on the day of dismissal does not entail liability for the employer if the head (representative) of the organization did not have the opportunity to hand over the document to the employee in a timely manner, but he took all the necessary measures.

Perhaps the most common situation when the employer does not give the work book through no fault of his own is the absence of the dismissed employee on the last day of work or shift (day of dismissal). The reasons for this may be absenteeism, temporary disability, vacation followed by dismissal and other circumstances. The employer can take the following steps:

• Draw up an act confirming the absence on that day at the workplace of the dismissed employee with the entry of an appropriate mark in the timesheet.
• In a timely manner, send the employee a letter with official notification of the need to appear in person to receive a work book. As a rule, such a document is sent by registered mail to the place of registration (registration) of the employee, as well as to all the employee's addresses that are known to the employer. From the date of dispatch, the employer is relieved of responsibility for the late issuance of the document.

In a situation where the failure to issue a work book upon dismissal occurred due to a refusal to receive a document, the employer, in accordance with the law, must act as follows:

• On the day of dismissal, an act is drawn up on the refusal of a citizen to receive a work book. The employee must be familiarized with the act by signing.
• Ensure the storage of an unclaimed work book until it is handed over to the employee personally or within 75 years from the date of dismissal.

Where to restore labor?

But there are also very difficult cases. For example, the employer does not give the work book, and the organization in which the employee worked ceases to exist, that is, is liquidated. Difficulties arise if it is impossible to establish the whereabouts of the former leader. Over time, it may be possible to find an unscrupulous employer and return the lost document. But for employment for a new job or for calculating the length of service, the employee will need to issue and receive a duplicate of the work book. How to confirm the existing experience and who has the right to issue a duplicate of the document?

First of all, the employee will have to obtain documents confirming the existing and general. Such documents can be:

• Inquiries from the Foundation Social insurance and branches The Pension Fund confirming the existence of social contributions and pension contributions during these periods.
• References, copies of personnel administrative documents (orders) from previous jobs, including information from archival organizations.

On the basis of supporting documents, information about the employee's past labor activity is entered into the duplicate. Who has the right to issue such a duplicate? According to the currently existing Rules, an employee must apply for a duplicate at the last place of work. But what to do when it is the last employer who is guilty of losing his employee's documents, and it is not possible to find him?

If the employee plans to find a job at a new place of work, then the new employer has the right to issue, issue a new work book and indicate information about the length of service on the basis of supporting documents. In the new work book, issued to replace the lost one, the total length of service of the previous labor activity is entered in total, but without specifying the periods of work, indicating the positions of the employee and previous employers.