From time to time, situations arise when the employer withholds the work book. Employees often change jobs. This is most likely explained by the fact that all employees strive to find the most acceptable conditions for themselves.
Maybe somewhere there is a higher salary or better job responsibilities, someone leaves their place of employment because they were accepted into a company closer to their place of residence, someone starts their own business or says goodbye to colleagues due to misunderstanding. You need to understand what to do in such unpleasant cases.
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.
How to oblige a former employer to issue a work book through the court
How else can you act if they don’t give you your work book? Go to court. There is no need to delay going to court. The statute of limitations 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 way to restore violated rights if the employer does not hand over the work book. What should I do to legally oblige my former boss to hand over a completed work book?
First, the employee must correctly draw up a statement of claim. You can write it yourself or seek 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.
- Employer information.
- An offense committed against the applicant, with reference to articles of the Labor Code of the Russian Federation.
- The applicant’s request: issue a work book, make changes to existing records, etc. The statement of claim for non-issuance of a work book also includes demands for moral compensation and compensation for material damage, if any.
- Enclosures: copies of supporting documents.
A copy of the statement of claim is submitted against signature or sent with notification by registered mail to the defendant, that is, the employer.
When the work book was not returned on time
Even if the former employee did not suffer any hardship from such an act, the work record book is withheld illegally, which means that it is necessary to bring the negligent employer to justice. The employee has the right to send an appeal to the labor inspectorate.
The result of such an appeal will be a visit by employees of this body to institutions where the required reconciliation of the documentation of the personnel department will be carried out on how work books and documents are contained and whether the labor rights of employees are actually respected there.
IMPORTANT !!! If, in addition to this situation, any other violations are discovered, the company will be forced to pay a fine for its own actions, but the employee will not experience any positive results on his own finances other than emotional satisfaction.
If we talk about more stringent actions, then you can go to court. It may happen that by delaying the issuance of a work book, the manager makes it difficult for a person to get a new job and the like. The employee is at a loss because they do not pay him a salary, and he does not receive any other income. The manager must answer for this in court, since this will be quite fair.
Total
The employer is obliged to give the employee his work book upon dismissal. In this case, you do not need to write any statements. If the employer does not give the document, then he violates the rights of the employee.
To restore them you need:
- write a letter of resignation again;
- register it properly;
- after 2 weeks, request a document;
- contact the CTS or FIT;
- receive a written refusal;
- go to court;
- At the same time, you can write a complaint to the prosecutor's office.
The employee also does not have the right not to provide a document at the main place of work. The employer has the right to demand it, since the employment document is included in the list of mandatory documents for employment. Failure to provide a work permit may become grounds for refusal to conclude an employment contract. If the refusal to issue occurs due to the loss or damage of a document due to the fault of the employer (responsible employee), then the employer can be held liable. He will pay a fine!
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.
What to do if the employer who still has a work book is liquidated
Unfortunately, there are cases when the employer who still has the book is liquidated, but does not hand over the documents to the archives and it is no longer possible to find the work record.
In this case, the employee has no choice but to contact the previous employer with an application to issue a duplicate.
You can also file a claim against a liquidated employer in order to obtain moral compensation for the fact that he did not fulfill his duties and did not take care of transferring the employee’s personal documents to the state archive.
If an employer does not issue a work book on the day of dismissal, he thereby violates the Labor Code, which may result in the imposition of an administrative penalty. An employee whose work has been delayed can file a complaint with the State Labor Inspectorate or the prosecutor's office, or file a lawsuit in court. In this case, the employer must pay him the average salary for the period of forced absence, as well as material compensation according to a court decision.
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.
Going to court
Going to court is a last resort when the employer refuses to hand over the book. Also, former employees turn to the judicial authorities in order to receive from the employer not only compensation for forced absence, but also material compensation, which can only be awarded by a court.
To go to court, a corresponding claim is drawn up and filed at the place of registration of the employer.
The claim must clearly indicate your requirements:
- Return a work book that was detained without legal grounds;
- Receive compensation for forced absence;
- Receive moral compensation for the inability to get a new job.
Download the statement of claim for the issuance of a work book (sample)
Before going to court, it is best to attempt a pre-trial settlement by sending a written application for the issuance of a work permit, which was discussed above.
This statement is then attached to the claim.
Also, when going to court, there is one more nuance - the date of dismissal will be shifted by the period of the labor delay, that is, the employer will be obliged to change the record of dismissal. Accordingly, the employee will retain his seniority for the duration of his forced absence.
When management is not to blame
The regulations define the grounds according to which management will not be responsible for withholding the work book. For example, these are episodes when on the day the documents are issued the employee is not at work or he does not intend to receive the book.
Then the manager may be exempt from any sanctions from the period of sending notice to the resigning person. It must be sent by registered mail.
IMPORTANT !!! The notice must reflect in writing the requirement to pick up your work permit or agree to have it sent by post. When sending by mail, the manager is recommended to have the enclosure certificate with him. It is prohibited to send the book by mail if the employee does not agree to this.
The notice must be sent immediately after the employee is dismissed, and not after any period of time.
In addition, criteria have been established under which management will not be responsible for retaining the work record. For example, a delay in issuing a document will not have any negative consequences for management when the last working day does not coincide with the moment of official severance of the employment relationship. Such cases occur when an employee is fired for missing work without proper grounds or if he is absent for several hours a day, and also if there is a court conviction against the employee, which precludes further work activity.
IMPORTANT !!! Among other things, it is unacceptable for a manager to be held accountable for failure to timely issue a document upon dismissal of an employee whose employment period continued until the end of pregnancy.
How to file a claim
The claim must be submitted in writing. It should include the following details and information:
- Name of the court;
- Information about the parties to the process: the plaintiff (employee) and the defendant (employer), as well as the plaintiff’s representative (if he cannot participate in the process personally);
- The circumstances of the case that served as the basis for going to court. In this part of the claim, the employee must indicate:
- when and with whom the employment contract was concluded;
- on what grounds was the contract with the employer terminated;
- how long does the employer hold the work book;
- whether the employee tried to resolve the issue before going to court, and what the result was;
- information that withholding the book led to the employee’s inability to get a new job and deprived him of the opportunity to earn money;
- other information relevant to the consideration of the case.
- How are the above circumstances confirmed?
- Requirements for the court. An employee has the right to ask the court:
- Request the withheld document from the employer;
- To recover material damage caused by the employer’s withholding of the work book;
- Compensate for moral damage.
The application is signed by the employee (plaintiff), or another person holding a notarized power of attorney.
The statement is sent:
- Directly to the court (in person or through a proxy);
- By mail;
- Through the Internet.
Natalia
Labor expert
It is important to know! If the legal case will be conducted by a representative, he must be given a notarized power of attorney. Only a citizen with a higher legal education can be a representative of a party in a civil proceeding.
How bosses make excuses
The ingenuity of management in trying to shift the blame onto the employee himself is often unpleasantly shocking. In order for the unfortunate person resigning to independently make a duplicate of the work book, draw up documents, or agree to resolve the dispute without trial, they use various cunning techniques.
For example, a manager may state that a book was issued to an employee, but he did not sign that he received it. In such a situation, the boss is responsible for the condition of the employees’ documents; if anything was done incorrectly, this does not exclude responsibility and force the manager, one way or another, to give the employee a copy of the work document.
Employer's liability
If the employer is proven to be guilty of actually illegally delaying work, he may be subject to the following sanctions:
- Fine up to 50,000 rubles for a legal entity;
- Fine up to 5,000 rubles for an official or individual entrepreneur.
In addition, he will have to pay the employee compensation for each day of delay in issuing labor and moral compensation (if awarded).
The employer will be released from liability if he sent the employee a notice of the need to appear for a work book.
Questions for a labor law expert.
The employer keeps the work record and salary. What should I do?
Natalia
Labor expert
Question to the expert
Hello! I quit my job voluntarily a month ago. This was preceded by a conflict with the general director. Now I am not given a work book or salary for the time worked. What is the best way for me to proceed? (Alexandra, Krasnodar)
Dear Alexandra! You need to file a claim in the district court at the employer's location. In your claim, demand: 1) payment of wages and interest (monetary compensation) for its delay; 2) issuance of a book and compensation for financial damage due to the inability to get a new job; 3) compensation for moral damage.
