If the dismissed employee himself cannot obtain a work book, then another person can do this for him, but only with a power of attorney certified by a notary. If the power of attorney is ordinary, not notarized, then it is better not to issue a labor power of attorney based on it. According to civil law, a simplified power of attorney is allowed when issuing funds and correspondence. The exception is valuable correspondence. For these purposes, a power of attorney can be certified by the employer at the place of work of the person who issued the power of attorney (185.1 of the Civil Code of the Russian Federation). In the article we will consider the procedure by which a work book is issued by proxy.
Power of attorney to obtain a work record book
A power of attorney to obtain a work record book is understood as a document by which one person delegates his right to another. According to the requirements of labor legislation (84.1 of the Labor Code of the Russian Federation), in the event of dismissal of an employee, the employer is obliged to make a full settlement with him, as well as issue a work book. However, this is not always possible. For example, a resigned employee may not show up for work that day due to illness, or be at a remote site, or simply ignore the need to get a book from the HR department. When such situations arise, the employee who quit independently looks for ways to solve the problem and asks his employer a question about the possibility of obtaining a work book by another person by proxy (
Validity
Expert opinion
Kuzmin Ivan Timofeevich
Legal consultant with 6 years of experience. Specializes in the field of civil law. Member of the Bar Association.
The validity period is regulated by the notary in the power of attorney itself. However, if the parties have not indicated the validity period, then the power of attorney is considered valid for one calendar year (Part.
1 tbsp. 186 Labor Code). It is also very important to indicate the powers that are assigned to the trustee and enter the correct information about this person, otherwise the document will not have its legal force.
The legislative framework
Labor legislation does not directly contain requirements on the issue under consideration. In accordance with Art. 84.1 of the Labor Code of the Russian Federation, if an employee did not receive a work book on the day of dismissal for any reason, then the employee is sent a notice of the need to appear for this document, or to agree to send the book by mail. According to this norm, the recipient of the work must only be the owner himself, and the transfer of the work to another person, even if he has the appropriate authority, is not allowed. But there is no direct prohibition on issuing a book to another person by proxy. In accordance with Article 185 of the Civil Code of the Russian Federation, one person can issue another a document to represent interests. Thus, specialists, answering the question about the possibility of issuing a work book by proxy, give a positive answer. But only on the condition that this power of attorney is properly executed.
Important! While the employee is working under an employment contract, the work book is kept by the employer. According to the labor code, it must be issued to the employee only on the day of dismissal. But if on the day of dismissal the employee did not receive his book, then from the next day the norms of Civil Legislation come into force. This means that in accordance with the Civil Code of the Russian Federation, an employee can entrust the receipt of his work to another person (for example, a relative, but not necessarily). But the power of attorney in this case must be notarized.
Legal provisions
The work permit must be issued to the employee by the former employer. This is stated in Art.
84.1 Labor Code of the Russian Federation. The rules for maintaining and storing work books - all employers are guided by them - were introduced into the work of the Post.
Government No. 225 of April 16, 2003. Clause 10 of these Rules states that on the day of termination of the contract, all necessary information must be entered into the document.
Clause 12 states that the dismissed person must certify all entries in the book by signing the personal card. In addition, Clause 41 of the Rules states that it is mandatory to affix the signature of the dismissed citizen in the work record book.
Thus, it is believed that the ex-employee must personally come for his work book. In addition, there is no direct indication that it is possible to return a work book by proxy. As well as the fact that it cannot be obtained this way.
The procedure for issuing a power of attorney for issuing a work book
Proper execution of a power of attorney for the issuance of a work book assumes that it is notarized. In this case, you will need to pay for notary services. As a rule, certification of a power of attorney costs a person no more than 1,000 rubles.
The power of attorney for obtaining employment must contain the following information:
- information about the authorized person (full name, passport details, residence address, as well as other information identifying the authorized person);
- information about the person instructing the trusted citizen to obtain a work book;
- date and validity period of the power of attorney (if the power of attorney does not indicate the date of execution, then it is invalid).
Important! It is impossible to issue a work book by power of attorney that does not contain the date of completion or has expired. Such a power of attorney is invalid.
Where and how to apply
The power of attorney to receive a work book upon dismissal must be notarized. If the former employee is in a place of deprivation of liberty, then the powers delegated by him to another person can be certified by the head of the corresponding place of deprivation of liberty. Some employers also issue a form in the case where the representative’s powers are certified by the organization where the principal works or studies, or by the administration of the inpatient medical institution where he is being treated. However, keep in mind that the possibility of certification by these organizations of a power of attorney for obtaining employment is not expressly provided for by current legislation. You will have to pay for notarization of the representative's authority. As a rule, this amount does not exceed 1000 rubles. But both the principal and the personnel officer, to whom the representative turns to receive the document, can be sure that the authority is properly formalized.
Sample power of attorney for obtaining a work record book
Issuance of a work book in the event of the death of an employee
Important! The issuance of a work book to a relative of a dismissed employee is provided for by current legislation only in one case - if the employee has died (clause 43 of the Rules for maintaining and storing labor records). In other cases, the issuance of a work book to other persons, including relatives of the employee, is not permitted.
If an employee dies, a corresponding entry is made in the work book. After this, the document is issued to one of the relatives of the deceased against receipt. Also, the book can be sent to relatives by mail in accordance with the request of one of them in writing.
How to pick up?
You can pick up your work book by proxy. We established this in the previous paragraph.
The legislator does not prohibit this action, which means that the person representing the interests of the employee can insist that he be given a document .
Sometimes employers who are too distrustful or employers who have little knowledge of labor law standards refuse this request to the trusted representatives of the former employee. Of course, this is an offense that must be dealt with accordingly.
Methods for obtaining a work book by an employee after dismissal
If an employee was unable to receive his work book on the day of his dismissal, there are several ways to resolve this issue:
| Methods for obtaining a work book by an employee after dismissal | Procedure |
| Hand out the book to the dismissed employee | The employee must personally appear at the HR department and receive his work book in his hands, and also sign in the labor register confirming that the book has been received. |
| Send a work book to an employee by mail | To do this, the employer must obtain written consent from the employee to send the book by mail. In this case, the letter must be formatted properly. |
| Issue a work book to an authorized person | A work record book can also be issued to another person, but only with a power of attorney certified by a notary. Without a power of attorney, issuance of a work permit is possible only in the event of the death of an employee and only to a relative. |
What to pay attention to
An attorney in the organization's HR department must not only receive his principal's employment record, but also check the correctness of the entries in it, and also sign in the appropriate journal of forms - these powers must also be indicated in his power of attorney.
In the event of the death of an employee, the book, after making an appropriate entry about the termination of the contract, is handed over to one of his relatives against signature or sent by mail upon the written application of one of the relatives.
Work book forms currently cannot, as was the case several years ago, be purchased at any underground passage. They are strict reporting forms, are sold only to legal entities and are transferred under the act only to representatives who have the appropriate power of attorney issued by the head of the organization.
Answers to common questions
Question: What to do if an employee refuses to receive a work book upon dismissal and does not come to get it himself, but sends only his representative with a simple power of attorney, and refuses to issue a notarized power of attorney? How long should the employer keep this book?
Answer: In this situation, it is impossible to issue a work permit to the representative. The only way out in this situation is to send the work report by mail. But this cannot be done without the prior consent of the employee. Only after the employee agrees in writing to have the work report sent to him by mail, can it be sent. Otherwise, the book must be kept by the employer “on demand.” A work book unclaimed by a dismissed employee must be kept by the organization for 75 years.
Question: For how long is a power of attorney issued to obtain a work book?
Answer: The term of such a power of attorney should not exceed three years. But if the document does not indicate a specific validity period, then it is considered to be valid for one year.
We are writing a power of attorney
It is not prohibited to draw up a power of attorney by hand. But, as a rule, the notary already has ready-made forms. The document has a standard structure:
- name of the paper;
- place of creation;
- date of creation (must be indicated in words);
- passport details, date of birth and place of registration of the principal and authorized representative;
- the essence of the action to which authority is transferred;
- additional actions that a citizen can carry out by proxy;
- validity period of the paper (if one is not indicated, then the document is valid for a year from the date of certification (Article 186 of the Civil Code of the Russian Federation));
- signatures of both persons.
After the power of attorney is formed and all signatures are placed, it is certified by the notary with his signature and seal. Next, he enters the document number into a special register. From this time the power of attorney begins to “work”.
Dismissal procedure
The labor legislation of the Russian Federation directly stipulates that every employee can be dismissed solely on the grounds listed in the relevant Code.
Termination of an employment contract in other cases is contrary to Russian regulations.
The general procedure for registering the dismissal of employees is described in detail by the provisions of the Labor Code of the Russian Federation. Article 84.1 of the Code provides for the issuance of an order to terminate the contract with the employee, as well as the obligation of the enterprise to pay the employee all amounts and issue a work book.
To correctly make entries in the specified form, the enterprise should be guided by the Instructions approved by Resolution of the Ministry of Labor of the Russian Federation of October 10, 2003 N 69.
Ignoring or non-compliance with the described procedure allows us to conclude that an employee’s rights have been violated upon his dismissal.
Who has the right to collect the document for the employee?
In addition to the employee himself, according to the norms of civil law, the work book can be taken by another person - relatives, friends, acquaintances, neighbors, co-workers, etc. It is necessary to draw up a legal document giving the right to such a person to carry out these actions - a power of attorney (what type of document is a power of attorney?)
For example, our system administrator A.E. Silaev asked to pick up his work record book for his brother E.E. Silaev. These are completely legal actions.
Who makes the power of attorney:
- at IP;
- in LLC.
Drawing up a power of attorney in the employer's organization, be it an individual entrepreneur or a limited liability company, is not regulated. The power of attorney is drawn up and notarized.
IMPORTANT! Correctly state the contents of the power of attorney, prove that this work document belongs to this particular person, confirm the existence of at least family or other relationships between the owner of the book and its recipient.
Law enforcement practice allows for the drawing up of a document for the return of the work book by other persons - both an authorized person and an employee of an individual entrepreneur or LLC authorized by the order (HR officer, administrative staff, accountant, secretary). Here the responsibility lies equally on the person who received it and on the one who issued it, but this is a risk for the fired person.
The employer insures himself by simultaneously drawing up a receipt for the transfer of labor, setting out the contents in an arbitrary manner. This procedure is sometimes considered unnecessary - upon receipt of the book, the dismissed person or the person receiving it is recorded in the existing labor record book.
Sample receipt for transfer of work book:
Obtaining a work permit by power of attorney upon dismissal of an employee
According to Article 80 of the Labor Code of the Russian Federation, on the last official day of work, management has the obligation to issue a work book to the resigned employee. It is also possible that, for objective reasons, it is not possible to hand over a document (the latter’s absence or refusal).
In this case, Article 84.1 of the Labor Code of the Russian Federation provides for sending a notice of mandatory attendance to receive all work-related documents or to give consent to send them by mail. In this case, the company’s obligation will be formally fulfilled, and it will no longer have to be responsible for the delay in issuance. Accordingly, the federal law and other legal acts of government bodies provide only two ways to return a work book:
- In a personal meeting between a representative of the organization and a former employee.
- By post.
At the same time, many people wonder: is it possible to issue a work book by proxy. Despite the provisions of the Labor Code of the Russian Federation, the norms of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) make it possible to get out of the situation in the specified way. After issuing such a document for a person who is ready to take the work book instead of its owner, the employer will have no choice but to give everything necessary to a third party.
Legal aspects
Since this situation is not described by specialized labor legislation, you should refer to the Civil Code of the Russian Federation. Thus, Article 185 establishes the basic rules for drawing up a power of attorney, which grants the right to one person to act in the interests and on behalf of another.
It is known that there is a special form of the document in question - notarial. According to Article 185.1 of the Civil Code of the Russian Federation, this type should be used only in transactions (concluding contracts, performing other civil acts), in accordance with the law, requiring a notarial form, state registration of any rights or disposal of such rights. Therefore, to obtain a work book, no special identification document is required.
Advice! When drawing up a power of attorney, you should carefully read Articles 186-189 of the Civil Code of the Russian Federation, which speak about the duration of the agreement, the so-called “sub-trust”, the grounds and consequences of termination.
Reasons for drawing up the document
Any life circumstances can become an obstacle to personally obtaining a work book upon dismissal:
- disease;
- death of loved ones;
- birth of a child;
- urgent move to a new place of residence;
- simply being busy looking for a new job.
In any case, if there is a person ready to help and meet with the employer instead of the former employee, the law will not prevent this. Even a conflict that occurs during dismissal and a reluctance to see your superiors can prompt you to refuse to receive the document in person, and this, by and large, is everyone’s business.
What should I do?
A power of attorney as a legal document is provided for by civil law. But this does not mean that an employee cannot use this document in labor relations. As follows from paragraph 4 of Article 185 of the Civil Code, he can, for example, entrust another person, on the basis of a power of attorney, to receive wages. And the organization in which he works has the right to certify this document.
As for the work book, its issuance by proxy is indeed not provided for by either the Labor Code or the Rules. And this is no coincidence. Since during the period of work under the employment contract this document must be kept by the employer. According to the law (Article 841 of the Labor Code of the Russian Federation), a work book must be handed over to the employee only on the day of his dismissal. But if an employee quits and did not receive a work book on the last day of work, then from the next day the norms of civil law apply to his relationship with the employer. This means that, on the basis of Article 185 of the Civil Code, the employee has the right to entrust the receipt of this document to a relative or other person. And the employer will be obliged (on the basis of a duly executed power of attorney) to issue a work book. The validity period of the power of attorney cannot exceed three years. If the term is not specified in the power of attorney, it remains valid for a year from the date of its execution (Article 186 of the Civil Code of the Russian Federation).
