Responsibility for late issuance of a work book for a dismissed employee in 2021

Features of issuance by the employer of labor

During his working life, an employee may encounter a considerable number of violations on the part of the organization that infringe on his rights upon dismissal. This shows up:

1. Unreasonable termination of an employment agreement.
2. Illegality of the grounds for dismissal.
3. Failure to meet deadlines for final payment.
4. Lack of dismissal order.
5. Refusal to issue a work permit or delay in receiving a document.
6. Mistakes in records, or entering false information into the work record.

Other violations of the dismissal procedure are also possible. According to the law (Article 84.1 of the Labor Code), the employer is obliged to issue a work certificate on the day of dismissal. But he will not be able to do this if the employee:

• refuses to receive it;
• absent.

If such circumstances exist, the employer must do the following:

1. Immediately send the dismissed employee a notice that he needs to appear for the document. Or offer the recipient the second option - agree to send the work by post.
2. Register sending a message.

If such an algorithm is followed, the employer completely protects himself from negative consequences arising from the issuance of a document in violation of the established deadlines, and is released from liability.

Important! If sent by labor mail, it is sent in a valuable letter, which includes an inventory of the contents.

How is compensation for delay calculated?

It can be difficult for workers to independently make an accurate calculation of compensation for the delay in issuing a work book, since this requires knowing:

• average daily earnings - its calculation is carried out in the manner prescribed by Government Decree No. 922 of December 24, 2007;
• the number of days of forced absence when a person could not find a job due to lack of documents on work experience.

Read more: Calculator for calculating average daily earnings upon dismissal

If these data are known, the formula for calculation is simple:

Using the formula, we will try to calculate compensation for the delay of the work book for a week - 5 working days. To simplify the calculations, let’s assume that the average employee’s earnings were 404 rubles. (approximately this amount will be obtained if the employee receives a minimum salary equal to the federal minimum wage without regional coefficients and allowances).

We substitute all the values ​​into the formula and get:

404 x 5 = 2,020 rub.

This amount should be paid as compensation for the inability to find a job.

IMPORTANT!

Before paying the calculated amount for the delay, withhold personal income tax and charge insurance premiums on it (see Article 217 of the Tax Code of the Russian Federation, letter of the Ministry of Finance No. 03-04-05/36473 dated July 24, 2014), since this is compensation for forced absence .

Refusal of the employer to issue a work permit. What to do?

An employee who is deliberately not issued a work permit in a timely manner must:

What to do if there is a delay in issuing a work book?

The employer's performance of actions indicating a refusal to issue personal documentation in a timely manner allows the person whose right has been violated:

• submit a statement to the offender about the need to stop carrying out illegal actions. Such an application should be sent through the office or by mail in order to have appropriate marks about its direction;
• prepare and submit:
  a complaint to the State Labor Inspectorate. The received complaint must be considered within a month, after which a written response is provided to the applicant;
• a complaint to the district prosecutor's office;
• a statement of claim to impose on the person who violated the right the obligation to transfer labor, as well as payment of compensation for the entire period of unlawful retention of the document, during which its owner could not perform his professional functions in another manner.

Important

When choosing a judicial type of defense, you must meet the three-month deadline for filing a claim, the beginning of which is determined by the date of dismissal.

In the absence of special knowledge with which a citizen could independently file a claim, it is worth contacting specialists for its preparation.

Important

Funds spent on providing legal assistance, judicial representation, other expenses incurred in connection with the consideration of the case, as well as compensation for moral suffering that occurred in connection with the violation of rights, are subject to recovery from the guilty party along with satisfaction of the main requirement for the issuance of a document.

Administrative liability of the employer for the delay in issuing a work book

If it is discovered that the work permit was not issued on time, the employer will have to incur material costs. And it doesn’t matter what the reason is for his failure to comply with the requirements of the law. Penalties are what will inevitably follow a violation of labor standards. Their dimensions are established by Art. 5.27 Code of Administrative Offenses:

The amounts are transferred to the state treasury.

Important! An official of the organization through whose fault a violation of the Labor Code occurred may get off with a warning if such a situation occurred for the first time.

Compensation for moral damage

In addition to financial liability, the employer who delays the issuance of a work book may be required to compensate for moral damage, which refers to the moral or physical suffering suffered.

The Labor Code establishes that the employer is obliged to compensate for moral damage caused by the employee’s performance of his official duties (Article 22). In this case, moral damage is compensated in the amount established by agreement of the parties, and if it is impossible to achieve it, by a court decision.

For your information

In accordance with the Civil Code, compensation for moral damage is recovered regardless of liability for property damage.

When establishing the amount of such compensation, the degree of guilt of the employer, the personal characteristics of the victim, which affects the degree of suffering, as well as the principle of reasonableness and fairness are taken into account.

Responsibility for repeated violation

When the employer commits the same violation again, he will have to pay more (clause 2 of Article 5.27 of the Administrative Code). The extent of responsibility is as follows:

Important! The manager will no longer get off with a warning. Cash payments can be replaced by disqualification for a considerable period - a minimum of a year, a maximum of 3.

Example. Individual entrepreneur Molotov refused to issue a work certificate to his seller after his dismissal. Motivation - he did not provide an act of write-off of products. Molotov turned to the labor inspectorate. Experts discovered that the individual entrepreneur had already committed a similar violation and got off with a fine of 1,000 rubles. For repeated failure to comply with legal norms, he was fined 10 thousand rubles. fine and ordered to return the document to Molotov within 3 days. Otherwise, the inspection will help the employee file a claim in court.

The employer does not return the work book

The former employee's first task is to try to resolve the problem peacefully. Claims take longer and often require additional material costs. Drastic measures are necessary if management ignores the legal rights of a former employee.

The reason why the employee did not pick up the documents in a timely manner is unimportant. The employer is obliged to hand over the documents.

Refusal is a violation of Russian legislation. It entails administrative punishment. The material equivalent of punishment is also the norm of court practice if, due to refusal to issue documents, a former employee was unable to get another job.

An ignored request is the reason for an urgent appeal to Rostrud. A written appeal becomes the reason for considering the case and conducting certain checks. The legality of the organization’s activities is primarily checked in accordance with the Labor Code of the Russian Federation.

Financial liability to a dismissed employee

Late issuance of work permits creates considerable difficulties for the dismissed employee. First of all, he cannot present the document to the new employer, which is a mandatory condition for hiring. As a result, the employee will have to remain without a livelihood indefinitely. We should not forget about moral damage.

Therefore, it is quite fair that the employer, in addition to fines to the treasury for ignoring the instructions of the Labor Code, will have to make payments to the dismissed employee (Article 234 of the Labor Code). The amount of compensation is determined:

• the amount of lost earnings for the period of time that passed from the moment of dismissal to the date of issue to the employee of his work permit;
• moral damage caused to the dismissed employee.

Important! Negative consequences for the employer also occur when he did not send the notice described above to the dismissed person.

How to make a payment

If the parties have resolved the issue amicably, the employee writes an application for payment of compensation. Based on such a request, the employer issues an order and pays the due amount. A similar order will be needed if the court has ordered compensation to be paid.

Among other things, the personnel officer additionally enters a new date of dismissal into the book, indicating in the last column (reason) the details of the court decision or order on the new day of dismissal. The previous record of dismissal is declared invalid. This is stated in government decree No. 225 of April 16, 2003.

Read more: Rules for filling out a work book

We will show you what each of the documents needed by the HR officer to process the payment looks like.

Sample letter from an employee

Sample order for payment of compensation

Sample of making changes to the work book:

IMPORTANT!

Do not forget to include data on the employee in the SZV-M report up to the month in which he received the documents on his experience.

Read more: Filling out SZV-M upon dismissal of an employee

Judicial practice: retention of work record upon dismissal

Judicial practice is literally replete with examples of calculations of such situations

Very often, employers and personnel officers, due to their inexperience and carelessness, lose a work book and spend a long time on its restoration, and meanwhile the amount for compensation grows every day.

Most often in judicial practice there is a case where an employer, trying to take revenge on his employee, tries to hide his book as far as possible and not hand it over for as long as possible. But, unfortunately, most often such employers only make matters worse for themselves. By the fact that they do not provide the employee with a work book, they only increase the amount of payment that they will have to pay towards compensation, but many unlucky employers do not think about this until they come to court on the claim of their employee.

Unfortunately, such situations occur everywhere, and I really want to learn how to deal with them and finally convince employers that it is necessary to respect the rights of their subordinates.

But also often in practice there is a case when the employee himself tries to get money from a decent employer.

To do this, the employee specifically gets rid of his work record and then, after waiting for a certain period of time to pass, goes to court with a demand to receive compensation.

Unfortunately, sometimes such cases are taken into account and impressive amounts are actually written off from the employer just like that. The reason for this is that the employer, in his naivety, did not require a receipt from the employee for receiving the work permit.

Is labor delay not an obstacle to employment in a new place?

In turn, the St. Petersburg City Court did not seek compensation from the organization at all for the work book not being issued to the employee on time. (Appeal ruling dated November 6, 2018 No. 33-22399/2018). The judges noted that the fact of delay in itself is not sufficient to qualify the employee for such compensation. The employee must also prove the existence of attempts at employment and refusals due to his lack of a work book. In addition, in the situation considered, although the employer lost the original work book, he made efforts to correct it, the judges indicated.

So, the HR service manager of the LLC agreed with the employer to dismiss her by agreement of the parties (clause 1 of part 1 of Article 77 of the Labor Code) and to send the work book by mail to her home address. After some time, it turned out that the work was lost.

The employer independently decided to issue the former employee a duplicate document, for which he sent requests to her previous places of work. As a result, the dismissed employee received the necessary papers only four months later and went to court, demanding to recover 170 thousand in compensation from the employer for the delay in issuing the work book.

The courts of two instances rejected the claim, pointing out that the employer is obliged to reimburse earnings for the period of delay in issuing a work book only if the former employee proves that he was unable to find a job without having documents in hand. The plaintiff informed the court about the fact of refusal to hire, but did not provide evidence of this.

As a result, the St. Petersburg City Court concluded that there were no grounds for compensating the employee for damages due to illegal deprivation of the opportunity to work.

The same argumentation is presented in the appeal ruling of the Moscow City Court dated November 14, 2016 in case No. 33-39997/2016. It’s funny that the Moscow City Court referred to its right to evaluate evidence according to its inner conviction (Part 1 of Article 67 of the Code of Civil Procedure of the Russian Federation).

As for the Nizhny Novgorod Regional Court, in its ruling dated 02/06/2018 in case No. 33-771/2018, the following was noted: a delay in issuing a work book is an obstacle to the employee taking a new job, and, as a result, entails the deprivation of the employee’s opportunity to work and receive wages. Accordingly, a legally significant circumstance is the establishment of the fact that the employee, after dismissal, applied to other employers for the purpose of employment and the fact that this was refused due to the lack of a work book. In this case, the responsibility to prove these circumstances rests with the employee. If we follow this logic, then an employee who has not provided evidence of applying to other employers for employment after dismissal and being denied this because he does not have a work book, has no right to compensation.

note

From the day the employee is notified of the need to appear for a work book or agree to have it sent by mail, the employer is released from liability for the delay in issuing a work book (clause 36 of the Rules for maintaining and storing work books, producing work book forms and providing employers with them).

Meanwhile, refusal to hire due to lack of a work book is illegal. In any case, it is not determined by the employee’s business qualities (Article 62 of the Labor Code of the Russian Federation, paragraph 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2). True, on the basis of Article 65 of the Labor Code, a person applying for work presents the employer with a work book (except in cases where an employment contract is concluded for the first time or the employee enters work on a part-time basis). But if a person applying for work does not have a work book due to its loss, damage or for any other reason, the employer is obliged, upon a written application from this person (indicating the reason for the absence of a work book), to issue a new work book. This norm confirms that the absence of a work record does not prevent employment.