A complaint to the prosecutor's office about the reclamation of a work book. How to apply to the court for not issuing a work book for a legal entity? Statement of claim on the obligation to issue a work book

When terminating an employment contract with an employer, an employee of the company must definitely get his work book in his hands. According to regulatory legal acts Russian Federation, the deadline for returning the document is the last working day of the employee.

However, often for one reason or another, employers are in no hurry to return the work book. In this article, we will try to make out in detail what to do, when this happens and who to contact.

Grounds exempting the employer from liability for non-issuance of a document upon dismissal

Let's consider the most typical situations when the head of the company is not responsible before the law.

The employee is absent from the workplace

These can be any force majeure circumstances: illness, departure to another city or for family reasons, etc.

In such situations, there is only one way out - the employer sends a letter of return to the employee with a request to pick up the document or agree to be sent by mail.

In this case, the manager is relieved of responsibility for late issuance.

Since mailing is a rather serious step, you need to get the written consent of the employee for this. If the employee did not give his consent to send the document, the head of the company is obliged to create conditions for their storage on demand, for a period of at least fifty years.

It also happens when an employee, due to moving to another country or for any other reason, is physically unable to come and pick up the work book. In this situation, one option remains - to issue a power of attorney. This can be done at any notary office.

The document indicates:

personal data of the attorney and former employee company (surname, name and patronymic, passport data and residence address, signature);
the name of the company, its details;
the signature of the owner of the document;
date of compilation and validity period.

After issuing a notarized power of attorney, the attorney will be able to receive a work book in the personnel department of the company, where, without fail, employees draw up a receipt that the document has been issued.

The employee refuses to collect his personal documents

For example, an employee does not agree with the dismissal, the employer must at all costs try to return the papers by any possible means.
If the employee is on the last day at his workplace, but for some reason ignores requests to pick up the papers, it is necessary to draw up an act.

All points are recorded in it: they indicate the reasons why the employee refuses to take the documents. After that, the employee signs the act and indicates the date, then submits it to the personnel department.

In a situation where the moment was missed for drawing up an act, it is necessary to take other measures. Try to send a registered letter to a former colleague with a request to contact the HR department and pick up your work book.

Such paper is written in a freeform. It is necessary to indicate: the name of the company, information about the employee, the date of sending the letter, contacts and other necessary information.

When the employer is responsible for the delay in issuing a work book to an employee upon dismissal

Many company executives, by means of blackmail, threats, intimidate employees, not giving them a work book in a timely manner. Regardless of the reasons and pretexts for which the employer refuses to issue the document, the former employee of the company has the right to complain about the head to the authorized bodies or try to influence in other ways.

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What is the financial responsibility of the employer in case of refusal to issue a work book

If the document is not issued, the employee has the right to demand compensation for lost earnings due to the impossibility of further employment without work book.

A former employee of the company has the right to claim compensation for lost earnings.

According to article 232 of the Labor Code of the Russian Federation, financial liability is provided for the late issuance of a document to a company employee. In accordance with the employment contract or other agreements, the amount of compensation may be prescribed.

Also, the law provides for monetary compensation to the employee. The amount of payments is determined by the amount of unreceived earnings that the employee could receive if he had a document in his hands confirming his work experience.

The employer bears obligations not only in relation to employees, but also to the state, in accordance with article 5.27 of the Administrative Code.

For untimely issuance, the labor manager may receive a fine. The amount varies from thirty to fifty thousand Russian rubles.

Officials and heads of enterprises can be fined from one thousand to five thousand rubles. Individual entrepreneurs - over 5,000 Russian rubles. Cash compensation the company or enterprise is obliged to pay to the state treasury.

How an employer can compensate moral damage for a delay in issuing a work book

One more effective method defending their rights - to demand compensation for moral suffering. This term in labor law means violations of his personal non-property or property rights related to work.

The amount of payments and compensation, when the parties did not come to a single consensus, are established in judicial procedure... At the same time, the limitation period is set at three months.

It is during this period and not later that a former employee of the enterprise can go to court and receive a monetary compensation. Human rights bodies take into account all circumstances, the degree of guilt of the offender.

Administrative liability for refusal to issue documents

In addition to material damage to a former employee, the company may incur other obligations for a document not issued on time. The employer may be fined in accordance with administrative code RF.

Dimensions, according to part one of Article 5.27.1 of the Administrative Code in the Russian Federation may be as follows:

On individual entrepreneurs a fine is imposed in the amount of one thousand to five thousand rubles.
For companies - from thirty to fifty thousand rubles.
On officials - a warning or an amount from one thousand to five thousand.

In case of repeated offenses, the amount of fines may be increased:

for companies and enterprises - from fifty to seventy thousand rubles.
for heads of organizations - from ten to twenty thousand rubles or suspension from work for a period of one or three years.
for individual entrepreneurs - from ten to twenty thousand rubles.

To bring the employer to administrative responsibility, the employee should contact the authorized bodies for labor and employment. According to article 5.27 of the Code of Administrative Offenses of the Russian Federation, they will help bring the violator to justice.

In cases where the labor inspectorate is involved at the request of a former employee of the company, employees will be required to verify all the facts. Since most organizations are afraid to be involved in such situations and run into a fine, as a rule, the threat to involve the authorized bodies can help to return the work book.

What to do and where to go if the employee is not issued documents upon dismissal

If the employer refuses to return the documents necessary for further employment to the employee, you need to try to find a compromise. In the event that it was not possible to resolve the conflict peacefully, you can proceed to tougher actions.

For such situations, there is a certain algorithm. This is the only way to protect your violated rights.

So, the order of actions can be as follows:

Write a statement to the name general director companies with a request to issue a work book, in accordance with article 80 of the Labor Code of the Russian Federation.

In the application, it is imperative to indicate: position, organization details, passport data, put the date of application and signature. The employer must understand that the employee is familiar with his rights and understand that he is violating them. Write an application in duplicate and give it to the secretary for approval. Then do not forget to pick up your copy with a note of acceptance.

If you do not accept a written request, send a certified letter by mail. In this case, it is imperative to draw up an inventory in two copies.

In cases where the above actions did not help, it is necessary to move on to more active actions and contact the labor and employment supervisory authorities, whose responsibilities include examining such issues.

In addition, a former employee of the organization has the right to file an application with the prosecutor's office. To do this, you should send a complaint and write a corresponding statement. In terms of form, this appeal should be the same as the letter of notification to the company, which refuses to return the employee's personal documents.

Well, the main option of action is to appeal to the judicial authorities with the requirement to issue a work book and collect funds for its unlawful retention. In this situation, it is necessary for labor issues.

The employer does not give the work book. What to do?

In accordance with domestic legal norms, the work book is the main document confirming the fact of the work of citizens, as well as the periods of such activity. Russian enterprises and entrepreneurs are obliged to maintain, store and issue these documents to individuals in the event of termination of relations. However, workers often have the question of what to do if the employer does not give the work book. Let's consider this question.

Registration of labor relations

A prerequisite for the proper registration of labor relations, it is necessary to conclude an appropriate agreement between the employer and the employee.

When performing the above actions, the applicant provides personnel service documents, the list of which is given in article 65 of the Labor Code of the Russian Federation. It is impossible to declare other requirements that are not specified in the above norm. This prohibition is reflected in the same article of the Code.

The employer issues an order about the fact of employment, which is the basis for making a corresponding entry in the work book. The named document is with the enterprise for the entire period of implementation by an individual job responsibilities.

Entries in the named form must be made in strict accordance with the requirements of Article 66 of the Labor Code of the Russian Federation and the Rules for maintaining and storing work books, making work book forms and providing employers with them.

It is important to remember that the employer is obliged to issue a work book only after the employee is fired.

Obligations of an employer upon dismissal of an employee

Freedom of labor is declared by the provisions of the Labor Code of the Russian Federation. It follows from this that every individual has the right to quit his job at any time without giving any reason. To do this, it is enough only to inform the company in advance about the upcoming dismissal.

An employer can also fire their employee. However, this requires good reasons, directly indicated in the norms of domestic legislation.

It should be noted that regardless of the initiator of the dismissal and the reasons for the termination of work, there is general order execution of termination of an agreement or agreement.

In accordance with Art. 84.1 of the Labor Code of the Russian Federation on the last day of work natural person all required amounts must be paid. In addition, dismissal under an employment contract without issuing a work book is not allowed.

The entry in the above document must be made at the time of completion labor function... This entry is made in accordance with the wording of the order to dismiss the employee. The specified order must be communicated to the individual, who confirms the fact of familiarization with it with a handwritten signature.

On the date of termination of work, the personnel department is obliged to give the citizen all Required documents... Failure to issue a work book upon dismissal is unacceptable.

If the employer has not returned the work book

Each person in the performance of their official duties may face unfair behavior of the enterprise. Such abuses relate to the rights of employees and are expressed in non-compliance with the procedure for final settlement, the illegality of the grounds for terminating the contract, the failure to issue an order, or the delay in the work record book upon dismissal.

For such cases, domestic legislation has developed a special algorithm of actions that is mandatory for the employee and the employer. This mechanism is intended to protect the rights of a citizen, granted to him by law, as well as to protect the company from unfounded claims of former employees.

The specific procedure is contained in article 84.1 of the Labor Code of the Russian Federation. If the employer does not give the work book on the last working day due to the refusal to receive it or the absence of the employee, then the organization must send the citizen a message about the need to appear for the documents or agree to send them by mail. The work book should be sent in a valuable letter with a list of attachments.

It is important to remember that only when the described algorithm is executed, the employer is released from responsibility for not issuing a work book when an employee is dismissed.

These actions and consequences apply if the documents related to the work were not received by an individual as a result of his will or because of circumstances that the parties could not influence. This conclusion follows from a literal interpretation legal regulations.

A completely different procedure should be followed by an employee when he is deliberately not given a work record book upon dismissal. In this case, the citizen should send the employer a written request to return his work book within a certain period.

If it is impossible to convey such a message to the enterprise or the employer does not comply with it, then it is advisable to file a complaint with the labor inspectorate or with the prosecutor's office of the Russian Federation. Also, the employee may demand the issuance of the book through the court.

The employer's responsibility for the delay in issuing a work book

Regardless of the reason for the failure of the employer to fulfill his obligations upon dismissal of an individual current legislation liability for violation of the provisions of the law is envisaged. Possible negative consequences identified regulations Russian Federation.

Article 5.27 of the Code of Administrative Offenses of Russia provides for liability for violation of the norms of the Labor Code of the Russian Federation. If the employer is an organization, then the fine for not issuing a work book reaches 50,000 rubles. Individual entrepreneurs can be fined up to 5,000 rubles.

Cash in the specified amounts are payable to the state. In addition to the described fine, for ignoring the requirements of the Labor Code of the Russian Federation, the employer must also make payments in favor of the employee.

Article 234 of the Code provides for compensation for failure to issue a work book. Its size is determined by the amount of earnings not received by the employee for the period from the moment of dismissal to the date of transfer of the relevant document to an individual.

The described negative consequences can occur for the employer both in case of his evasion from the issuance of labor, and in the event that he did not send the employee the notification described above.

Failure to issue a work book upon dismissal is a gross violation. legal rights employee. But few people know that an employee can not only attract former leader to responsibility, but also to 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. Employment 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.

Conflict-free resolution of the situation can be greatly facilitated by trade union organization if any. 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 record 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, a 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, the usual written request will be enough to remedy 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 a complaint (application) to the head of the local branch of Rostrud about the non-issuance of a work book with a request to check and attract 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 termination with the citizen employment contract.
Request to take action: to check Rostrud, to bring the former head to administrative responsibility, to oblige the personnel service to 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 from 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 way to restore 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 needs to correctly draw up a statement of claim. You can write it yourself or contact legal advice for help. 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 through the court. wages 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 the length of service, which the employee lost through 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 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 a 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 measures:

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) with previous places works, 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.

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). A copy of the employment contract dated "___" ________ 20__ year No. (indicate the number and date of the employment contract under which you worked, if any), a copy of the work record book and the order for appointment to the position from "___" _______ 20__ are attached (do not forget to attach to the statement of claim copies of the work book and the order on the appointment to the position, if any).

I applied (s) to the Respondent on "___" ________ ___ 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 an order to terminate an employment contract, a certificate of salary, (other documents related to work), as well as the final settlement with me. On the last day of work, the defendant did not give me the work book and the indicated documents, he did not make the 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 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 of the Labor Code of the 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 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 powers 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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Concept, structure, types of legal consciousness

Law as a social phenomenon causes this or that attitude of people towards it, which can be positive (a person understands the necessity and value of law) or negative (a person considers law to be useless and unnecessary).

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:

Submitting an application for resignation and signing it with the manager knowingly, 15 days before the termination of the employment contract.
Obviously, 3 days in advance, warning the employee upon dismissal for disciplinary action.
Issuance of an order by the employer.
Making an entry in the "information about 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:

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 in good faith to postpone the day of dismissal to the date when labor employee will be transferred to him in due course.

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. TC must be returned even if the employee is outside settlement and cannot personally receive his book.

In this case, you can use the following options:

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

In no case should you:

Withhold the TC if the employer has imposed material responsibility on the employee.
Force him to sign a detour sheet or otherwise delay the issuance of the TC.
To force a specialist to perform (complete) the work necessary for the employer.
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, then the guilty person 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 book will not be issued to replace the lost one. In this case, you have the following options:

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.
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.
Start on new job TC, 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:

Does not want to let the employee go, as he needs him for the production process.
Demonstrates his power among the members of the work collective, realizing the degree of the violation committed.
He is incompetent in matters labor law and poorly aware of his responsibility.
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:

The Commission on labor disputes(CCC) at the enterprise from which you are leaving.
Labor Inspectorate of your area.
By the District Court at the location of the organization.
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.

The framework of the established period is 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 the last position. Accordingly, the terms of the provided payment are limited.

This period is counted from last day 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 a responsible person, 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 the correctness of its registration 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 will not be 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:

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).
Upon dismissal of a woman, the term of the contract with which was extended on the basis of pregnancy (part 2 of article 261).
After the employer has taken appropriate steps to transfer it 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 caveat is needed to apply - the employer really did something wrong in your address, 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:

To the prosecutor (indicate the name) of the district, city (name).
Surname, name, patronymic of the prosecutor.
From whom, indicating the surname, name, patronymic, home address of the applicant.
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.

In this case, the responsibility 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 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:

On the basis of Article 140 of the Criminal Code of the Russian Federation - not providing information.
On the basis of Article 293 of the Criminal Code of the Russian Federation - negligence.
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, an employee who suffered from a work book that was not issued on time due to a civil claim in court 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 inflicted on you, connected with the violation of your rights, for discrimination, humiliation that you have been subjected to by 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:

Your nervous system was upset and you consulted a doctor (provide a certificate).
You started to feel depressed and needed the help of a psychologist or psychotherapist.
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 was not issued to you, act in full 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.

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