The employer does not give out the work book, what should I do? We act according to the law

Failure to issue a work book upon dismissal is a gross violation of the employee’s legal rights. But few people know that an employee can not only hold the former manager accountable, 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 withholding one of the main employment documents leads to especially unpleasant consequences if the quitter not only leaves, but plans to take a new job in the near future.

In most cases, it is pointless to sort things out with the former management, ask or start a scandal; all this can only worsen the situation. It is possible to protect yourself by remaining calm and acting in accordance with labor laws. Where should a fired employee contact? What should you do if, after dismissal, the employer does not give you your work book? What should you do to compensate yourself for losses associated with these illegal actions?

Work book: document characteristics

Since the document is recognized as mandatory at the federal level, its form is unified. Article 66 of the Labor Code of the Russian Federation speaks about this, and the actual appearance, names of lines and columns inside and other substantive aspects are regulated by the Decree of the Government of the Russian Federation dated April 16, 2003 No. 225. The main points of the work book are:

• Last name, first name and patronymic of the employee.
• His date and place of birth, education, acquired profession and specialty.
• Sample of a person's signature.
• Information about all official employment, indicating the dates and reasons for admission, transfers, dismissals, as well as relevant organizational documents of the companies.
• Information about awards (or incentives) in accordance with the Labor Code of the Russian Federation, indicating dates. Penalties imposed on a specialist are not reflected in the document, except in cases where such is dismissal.

It is important to know! Production is also not spontaneous or handicraft: the Goznak association of enterprises is recognized as a kind of monopolist in this area, and detailed requirements for the production of the cover and insert form are set out in the order of the Ministry of Finance dated December 22, 2003 No. 117n.

The document in question is issued by the organization that hired the citizen for the first time in his life, within a week, but at the expense of the new employee. Next, the book is passed on to new bosses, collecting more and more information about its owner. In this case, any notes are made by representatives of the organization (as a rule, employees of the personnel service or department), and the specialist himself only familiarizes himself with them in the prescribed manner. Literally every entry is strictly regulated by the above-mentioned act of the Government of the Russian Federation, which makes it possible to maintain uniformity of completion throughout the country.

The document is intended to collect the most detailed information about a person’s labor achievements, experience and length of service. This, on the one hand, guarantees compliance with the rights of the employer, eliminating the possibility of deception regarding a new employee, and, on the other hand, provides the employee with the opportunity to officially confirm his words.

Conditions for storing work books and issuing them

It is very important to periodically ask the employer or the person responsible for storing work records in the company about the conditions for their storage.
After all, damage or loss of a document is extremely undesirable for an employee in the future. So, the document storage conditions should be as follows:

1. in the closet among important documents;
2. in the safe.

For example, if this document listed skill levels and assigned job titles, it will be extremely difficult to restore them if the document is lost.

The conditions for issuing the book to its owner are as follows:

1. upon termination of the employment contract;
2. at the request of the employee when submitting an application, to provide information from the work book (in such cases, he is given a copy of the document) to the Federal Migration Service or other authorities;
3. the work book can be given to the employee’s relatives in the event of his death;
4. If there is no family after the death of an employee, the employment record must be kept by the employer for 50 years.

For several years now, the legislation of the Russian Federation has been planning to eliminate the need to maintain employee work records. However, the timing of such an innovation has not yet been determined, so for now work books remain afloat and cause a lot of trouble for both employees and employers.

Now let's move on to the issues of designing and filling out this type of document.

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.

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.

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.

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 may be missed during preparation. Attention: You must first notify your boss and send him a regular application requesting extradition. 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 taken into account). You can submit an application to the district court at the location of the enterprise.
2. You can file a lawsuit within a month from the date of dismissal. That is why you should not delay the process.
3. Once filed, the trial begins. After the court decision is made, 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 lawsuit provides for a special structure. It must be followed.
2. Each fact and offense is stated to accurately describe the tort.
3. The general content of the claim must be contained in a volume equal to three sheets.

The statement itself, which is addressed to the employer, may look like this:

In addition, a person has the right to write a complaint against the manager and address it to Rostrud. Rostrud is a special inspectorate that carries out supervision in the field of labor and employment. The complaint is submitted as follows:

1. An application to this body is submitted via the Internet (on the Rostrud website).
2. The inspection's Internet portal contains advisory instructions on what to do and applications to various authorities. However, you can immediately submit an application there.
3. From the proposed options you need to choose the appropriate one:

4. The complaint must contain the personal data of the resigning person, as well as full information about the current situation with a request to take action.
5. Documents, such as an employment contract, should be attached to the complaint.
6. After checking by the inspectorate (if this particular item is selected) and recording violations, the person receives a document, and the employer faces various sanctions (depending on the conditions of the situation).

There is no time limit for a citizen to apply. The inspectorate allocates 30 days to consider his application.

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.

Loss. How to recover?

How to get a work book again if the first one was lost? It is necessary to contact the employer with an application for a duplicate of the work permit. Then the employer will be obliged to create a new work book and fill it out correctly. Of course, many assigned labor titles and awards can no longer be included in a new document, so from time to time lawyers recommend asking employers for a certified copy of the work record, which, if the original is lost, can confirm the length of service.

In situations where the work record is damaged or lost due to the fault of the employer, its owner has the right to file a lawsuit against the employer to recover compensation for the loss of the work record.

Who can take the labor instead of the owner

Officially, civil law does not establish any restrictions on the issuance of a power of attorney. Absolutely any person, even a legal entity, is assumed to be the second party to the contract. Accordingly, the choice can be made on the following citizens:

• close or distant relatives;
• colleagues;
• friends and acquaintances.

In addition, do not forget that certain categories of persons can act on behalf of others without obtaining a power of attorney. This applies to parents of young children and guardians of incapacitated people. If the latter are allowed to perform labor functions subject to a number of conditions (mainly ensuring the safety of themselves and those around them), then the official employment of minors is directly prohibited by the Labor Code of the Russian Federation (Article 63). The situation with the death of an employee of the organization is separately discussed. In this case, close relatives can receive a work book by confirming the corresponding connection with any document.

Important nuances

It often happens that the employer does not have confidence in the employee initially. You can try to offer the worker the following option - formalized employment three months after the end of the probationary period. To do this, you can use a fixed-term employment contract.

If a conflict is brewing with a certain employee, you should not waste money on contacting a highly qualified lawyer and HR specialist. They can tell you how to quickly and legally fire a worker .

Of course, you shouldn’t be too upset if an employee doesn’t show up on the day of dismissal to get a work book, because you can prevent this problem from occurring in advance. You need to carefully select employees so that there are fewer difficulties.

Situations in life are different, and sometimes the employer has a question about what to do if an employee does not collect his work book after dismissal for one reason or another.

Contents of the trust order

Since the essence of the document in question is the transfer of the right to one person to perform certain actions on behalf of another (in the case of a power of attorney to obtain a work book - its physical withdrawal from the employer), you should pay attention to the following provisions of the contract, describing them as clearly and concisely as possible, avoiding abstract formulations that can be ambiguous:

• A clear description of what the representative can do on behalf of the represented person.
• Duration of the power of attorney. In case it is not specified, the law sets its own - 1 year.
• Inclusion of a sub-assignment clause, allowing or prohibiting the representative to transfer his powers further down the chain to other persons.

What happens if you leave it at the post office?

Sometimes an employee who quit, for one reason or another, does not pick up his work book from the post office. This can happen for various reasons, for example:

• went to another city;
• died;
• is in hospital;
• found himself imprisoned, etc.

In any of these cases, after a certain period of time, the work book will be sent back to the sender. In such a development of events, the employer is obliged to accept the document back and keep it until required , that is, until the employee applies for this paper again.

This condition is stated in clause 43 of section VI of the RF Government Resolution No. 225.

Design rules

A properly executed document is already half the battle. According to the Civil Code of the Russian Federation, a power of attorney must comply with the following mandatory requirements:

• Made in writing.
• Contains an indication of the date of compilation.

Attention! Particular attention should be paid to such details as the date. The Civil Code of the Russian Federation provides that its absence makes the contract invalid. This is easily explained by the fact that neither the deadline established by the parties nor the statutory deadline can be counted in this case. Having completed the document correctly, you don’t have to worry about the success of the procedure for obtaining a work book.

In addition, you should never forget that both parties to the contract have signatures. A separate issue is the notarization of the document, which will be discussed later.

Methods of dismissal

Dismissal is a difficult job even for a competent personnel officer . Some workers leave of their own accord, others at the request of the employer. In any case, each option has its own procedure.

Labor legislation provides three options for terminating a contract:

• At the request of the employee.
• At the initiative of the employer.
• By mutual agreement of the parties.

The personal desire of the employee is the most well-known basis for ending the employment relationship with the boss.

1. The worker draws up a letter of resignation indicating the date.
2. The employer must accept the application.

There are usually no difficulties in formalizing this process at the initiative of an employee. The exception is moments combined with mandatory work. Typically, this is two weeks that the employee continues to work from the moment the application is written.

Receipt receipt

Both in the case of a personal visit by a former employee and when using a power of attorney to receive a work book, the employer is interested in legally recording the fact of the transfer. Thus, he relieves himself of responsibility for failure to fulfill the obligation provided for by the Labor Code of the Russian Federation. Despite the fact that the preparation of a receipt, and even more so its form, are not established by law, without it it is unlikely that anyone will dare to hand over the book.

Based on the purposes of compiling the document, conclusions can be drawn about its content. So, the receipt must indicate the following:

• Information about the document being transferred (to whom it is issued).
• Last name, first name and patronymic of the person who actually received the work book.
• Details of an identification document (either the employee himself or the one who came with a power of attorney).
• Basic information about the submitted power of attorney.
• Date of transfer of the work book.

Having witnessed all this information and confirmed it with the signature of the person authorized to pick up the document, the organization can be calm.

What to do next?

If the case goes to court, if there is no evidence confirming the sending of the notice, the employer will have to act as a defendant. True, if the documents are kept incorrectly, it will be almost impossible to prove that you are right.

The result of an illiterate or irresponsible approach to resolving this issue may result in administrative liability in the form of a fine imposed on the employer . Therefore, personnel officers should be very careful and scrupulous in matters of paperwork in order to prevent troubles from arising.

Any instructions regarding the rules for conducting the employee dismissal process can be found on the Internet. Therefore, if you have any doubts about the rules of the procedure, before making a decision, it is better to consult with a specialist in this field or once again study the regulatory documents governing this process.

Dismissing an employee, just like hiring him, is a responsible event that should be carried out in accordance with the requirements of the law. Compliance with all standards guarantees the absence of problems with the law and additional financial costs.

High-quality handling of documents also has a beneficial effect on the reputation of the enterprise.

The employee resigned voluntarily with two weeks of work. On the day the statement was written, he left.

He doesn’t show up at his workplace, we called him, he replied that he wouldn’t come to the company again and he didn’t need a work permit (to complete the information: his dismissal was expected, complaints from management, in general they were dissatisfied with his work)

What to do next?

We are currently drawing up reports of his absence from work, but how long will it take? how to transfer the work in the end?

We were surprised by the question of Article 84.1 of the Labor Code of the Russian Federation, everything is well written there and do it urgently so as not to pay him later under Article 234 of the Labor Code of the Russian Federation

If on the day of termination of the employment contract it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for the work book or agree to send it by mail. From the date of sending this notification, the employer is released from liability for the delay in issuing the work book.

In accordance with Art. 80 of the Labor Code of the Russian Federation, on the last day of work, the employer is obliged to issue the employee a work book.

However, according to Art. 84.1 of the Labor Code of the Russian Federation, in the case when it is impossible to issue a work book to an employee on the day of termination of the employment contract due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for the work book or agree to send it by mail.

From the date of sending this notification, the employer is released from liability for the delay in issuing the work book.

Expert opinion

Semenov Alexander Vladimirovich

Legal consultant with 10 years of experience. Specializes in the field of civil law. Member of the Bar Association.

The procedure for storing work books not claimed by a former employee is determined by clause 43 of the Rules, according to which work books that employees did not receive upon dismissal must be kept by the employer until required.

The storage period for unclaimed documents is determined in the List of standard management documents generated in the activities of organizations, indicating storage periods, approved by the Federal Archive on October 6, 2000. According to this document, work books must be stored in the archives for at least 50 years.

Upon written request from an employee who has not received a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the employee’s request

And because he disappeared and did not go to work during his detention, i.e. notifications under Article 80 of the Labor Code of the Russian Federation, of course, you can fire him for absenteeism, but think about whether it’s worth bothering with this, I have rarely seen cases where employers correctly filled out documents for dismissal for absenteeism.

I think you should send him a letter asking him to pick up his work book (just in case), and indicate in the letter that by writing a letter of resignation and indicating the date of dismissal such and such, he stopped going to work from such and such numbers, which means that you are also asking him to explain the reason for not going to work, are there any good reasons for this, and if not, then you will be forced to fire him for absenteeism and make an appropriate entry in the work book. And also, that you remind him that because...

you have not been fired here yet, then according to the Labor Code of the Russian Federation he can only work for another employer on a part-time basis, and if he works full time as at his main place of work, then this fact will be revealed and his new employer will be in tax trouble , because the employer overestimates the tax base for the salary, and this threatens the employer with fines.

In general, this letter is a kind of trap, it may or may not work, and you see, there is an emphasis on trouble for the new employer, although you understand that this is not entirely true, this is such an inaccuracy, because After all, he is not receiving a salary from you now, but at the same time this is correct, because...

If you work somewhere at your main place of work, then you can work part-time with another employer.

In general, send a registered letter with certified notification to all addresses and a list of attachments.

And also, the answer to your question, how long can he be such an employee who left and does not show up at the workplace, I call them dead souls. Because

I went to more than one seminar of GIT workers, and they answer this question, even for life, until he comes and writes an explanation why he does not go to the workplace. After all, there is a procedure for dismissal for negative reasons (for absenteeism).

And you won’t get any explanation from him. Then, he may come to you as a result, when all the deadlines for imposing a disciplinary penalty (and even in the form of dismissal) will simply go away and you will no longer be able to fire him for absenteeism, even according to the law of Article 193 of the Labor Code of the Russian Federation.

But, what can you do, it’s crazy to drag this dead soul around from year to year. We HR officers do one not entirely correct process.

We, to such an employee, as I indicated to you, send a registered letter to his address with acknowledgment of receipt and a list of attachments, then it is returned to the employer with a notification from the employee that he received this letter, according to Article 193 of the Labor Code of the Russian Federation, we give a period for so that the employee comes and writes an explanatory note, while we collect the entire package of documents stating that he does not go to work - reports, time sheets, reports from his immediate superior.

And what do we do next, when he still doesn’t show up and doesn’t write an explanatory note, we still fire him, and precisely for absenteeism. But, at the same time, in no case do we make an entry in the work book, but we send a letter to him about the fact that he was fired so that he takes away his work book, so as not to bear financial responsibility for it under Art. 234 Labor Code of the Russian Federation.

From time to time, such employees still appear, but I do not recommend dismissing him for absenteeism; nevertheless, I always recommend changing the documents to another article, for example, by agreement of the parties or, nevertheless, at his own request. Because I explained that dismissal for absenteeism using this method - a letter to the address is not correct.

The only thing is that in your case you still have a statement, and you can fire him on the date that he indicated in this statement, then when you fire him on this date, you will immediately send him a letter according to the work book under Art. 84.1 Labor Code of the Russian Federation.

Well, for the days that you entered NN (absenteeism for unknown reasons) on your time sheet, moreover, the law does not force the employer to change these NN for absenteeism or something else, especially since it is the employer’s right to fire an employee for negative reasons , not a duty.

In general, I think she gave you detailed instructions on what to do in your situation.

The employer must submit the documents on the day the employee is dismissed, that is, during the last working hours at work. It is not always possible to carry out such a procedure.

An employee may, for certain reasons, be absent from the workplace or avoid receiving a work book because he does not want to agree to the termination of the employment contract. There are several ways to solve the problem if an employee does not come to collect his work book on the day of dismissal.

1. Methods for solving the problem
2. Methods of dismissal
3. Important nuances

Sample document

For those who are not ready to pay for the services of a lawyer in order to draw up a regular power of attorney, here is the most successful option that meets the basic requirements of the current legislation of the Russian Federation.

Cost of notary services

Article 185.1 speaks of a mandatory notarial form only in the case when the receipt of a work book is associated with the final settlement and payment of all amounts due to the employee (salary, unused vacation, bonuses, and so on). If you plan only to receive a labor document, then certification is not required by law. On the other hand, due to the widespread opinion about the mandatory notarization of a power of attorney, sometimes it makes sense to pay for the appropriate service and be calm about the outcome of the meeting.

As for the questions - how much do the services cost, what are the advantages of applying for a power of attorney to a specialist - two points should be noted. First, the price is not uniform and is set depending on the following circumstances:

• For state notaries it will be 200 rubles in accordance with paragraph 1 of part 1 of Article 333.24 of the Tax Code (hereinafter referred to as the Tax Code of the Russian Federation).
• For private ones, it may differ and is installed independently.

The second point is the quality of the document itself. Of course, a sample can always be found on the Internet (including in this article), but they are all unified, averaged, and a specialist will write a text suitable for a specific situation, taking into account all the existing features.

Do I have the right to borrow a work book from the HR department?

Therefore, on the last working day (before vacation, respectively), a person has the right to receive his documents. And in this situation, when the work book has been received in advance, a receipt from the employee is required for its receipt. The personnel officer, in turn, must enter information about this into the book for recording the movement of labor books.

Read more about this and other issues related to the rules for maintaining and recording work books in our special section.

Is it possible to send a work book by mail? Read here. Find out what happens if the book is not given to the employee from the material.

If an employee loses the original, it will be much easier to collect paperwork to obtain a duplicate. And if you decide to issue books in cases not provided for by law, be sure to write down the return deadlines in local documents.

On the next page, according to the rules for filling out forms, an entry is made confirming the fact of employment. In what order are entries about work entered into the document? The correct execution of a work book looks like this: the first column contains the entry number in order, the second - the date. The following is information about acceptance to a specific position.

Taking into account the above, for bodies providing pensions on the territory of the Russian Federation, submitted copies of documents, including copies of work books, certified by a notary or by the Pension Fund of the Russian Federation, have legal force.

Often (for example, when applying for a mortgage loan), employees need a copy of their work record book certified by the employer, a sample of the correct execution of which will be discussed in our article. A certified copy is also required when applying for subsidies, international passports and in other cases.

In the same way, the “bad dad” didn’t go for certificates on principle (for which special respect to him), and at his place of work they didn’t give me a certificate in “personnel”, they said either let the dad come personally, their employee, or let him from your social security (Moscow), send an official request.

In these cases, HR department employees often tell the new employee about the need to independently purchase a work book. You can buy it at a regular bookstore or newsstand, since such outlets usually distribute document forms available to the public.

PENSION FUND OF THE RUSSIAN FEDERATION LETTER dated December 29, 2005 N 25-19/14554 ON SUBMISSION OF THE ORIGINAL EMPLOYMENT BOOK Having considered the received request, we inform you. The norms of Article 66 of the Labor Code of the Russian Federation dated December 30, 2001 N 197-FZ determine that a work book of the established form is the main document about the employee’s work activity and seniority.

Sending a work book by mail

One way to obtain a work book is to send it by mail. However, sending such an important document is not so safe. It may be lost, which will entail a difficult recovery procedure.

In addition, employees of the personnel service (department) should always remember the legal rules:

• Making a transfer in this way is possible only after obtaining the consent of the former employee in response to a notice sent to him.
• The address must be specifically specified by the recipient. It is not allowed to use information that is available to management in advance.

Issuing a work book to the employee

And the list of documents that are needed to establish an insurance pension was approved by order of the Ministry of Labor of Russia dated November 28, 2014 No. 958n. Documents for granting a pension can be submitted not only by the employee, but also by his employer, with the written consent of such employee.

This can be done by both you and your employer, depending on who currently has the document. 1 letter from Rostrud dated March 22, 2012

All! Don’t interfere with people’s lives, dear literati! From the point of view of the Labor Code, I understand everything, but if a person’s PF or FMS REQUIRES the original, then what should he do?

To be completely precise and fully follow labor legislation, without relying on practice, the personnel officer can issue a work book only once - upon dismissal. In all other cases, he is obliged to provide copies of documents, certificates and extracts certified by the employer.