Failure to issue a work book. Penalty for failure to issue a work book by the employer. According to a former employee

"Human Resources Department commercial organization", 2012, N 2

DELAYED ISSUANCE OF WORK BOOK - ANSWER BY THE LAW!

Often, an employer, when terminating an employment relationship with an employee, does not give him a work book on the last working day, saying: “If you hand over the cases, I will issue them,” “We finish the inventory, then you will receive it,” and other similar phrases. But does the employer think about what untimely issuance of work book worker? In most cases - no, but as practice shows - in vain. We will discuss in this article what the consequences of delaying the issuance of the said document to the employee may be for the employer.

About the rules for issuing a work book

In accordance with general order registration of termination employment contract established by Art. 84.1 of the Labor Code of the Russian Federation, on the last working day, the employer is obliged to issue a work book to the employee. In the event that 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 a notification to the employee about the need to appear for the work book or agree to send it by mail. By written request of 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 application.

A similar requirement is contained in the Rules for maintaining and storing work books, approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225: the employer is obliged to issue to the employee on the day of dismissal (the last day of work) his work book with a record of dismissal made in it.

Let's say right away that the legislator has predetermined cases when the employer is not responsible for the delay in issuing a work book. So, he is released from liability from the date of sending a notice of the need to appear for a work book. The employer is not responsible in case of non-compliance last day work with the day of registration of the termination labor relations upon dismissal of an employee on the grounds provided for in paragraphs. "a" p. 6 h. 1 art. 81 (for absenteeism, that is, absence from the workplace without good reason throughout the working day (shift), regardless of its (her) duration, as well as absence from the workplace without good reason for more than four hours in a row during the working day (shift) ) or paragraph 4 of part 1 of Art. 83 of the Labor Code of the Russian Federation (condemnation of an employee to a punishment that excludes the continuation previous work, in accordance with a court verdict that has entered into force) or upon dismissal of a woman whose employment contract was extended until the end of pregnancy in accordance with Part 2 of Art. 261 of the Labor Code of the Russian Federation.

So what is the employer's responsibility?

Material liability

Compensation for the delay in issuing a work book

in the amount of average earnings

The liability of the parties to labor relations is established by Art. 232 of the Labor Code of the Russian Federation, according to which a party to an employment contract (employer or employee) that caused damage to the other party compensates for this damage in accordance with this Code and other federal laws.

Employment contract or concluded in writing the agreements attached to it may specify the liability of the parties to this agreement. At the same time, the contractual liability of the employer to the employee cannot be lower, and the employee to the employer - higher than is provided for by the provisions of the Labor Code of the Russian Federation or other federal laws.

Note! Termination of an employment contract after causing damage does not entail the release of the parties to this contract from liability under the Labor Code of the Russian Federation.

The liability of a party to an employment contract is for the damage caused by it to the other party to this contract as a result of guilty unlawful behavior (action or inaction). For an employer to be liable, the following conditions must be met:

Presence of damage (proof of its existence - the employee's application for compensation for the damage caused, confirmed by documents. The damage can also be confirmed by witness testimony);

The employer is guilty of causing damage to the employee (if the employer proves that the damage was not due to his fault, he is not obliged to compensate the employee for damage);

Illegal actions or omissions of the employer;

A causal relationship between the guilty actions (inaction) and the resulting damage.

Note that the employee also does not interfere with stocking up on evidence that non-performance or improper execution obligations imposed on the employer caused damage.

The employer will bear financial responsibility, in particular, for the unlawful deprivation of the employee of the opportunity to work (Article 234 of the Labor Code of the Russian Federation). For example, if they did not receive income as a result of:

Illegal suspension from work, dismissal or transfer to another job;

The employer's refusal to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee in his previous job;

Delays by the employer in issuing a work book to an employee, entering into the work book an incorrect or inconsistent wording of the reason for dismissal of an employee.

This is also stated in paragraph 35 of the Rules for maintaining and storing work books: if the issuance of a work book to an employee is delayed due to the fault of the employer, if an incorrect or inappropriate federal law formulating the reason for the dismissal of the employee, the employer is obliged to compensate the employee for the earnings that he did not receive for the entire time of the delay. The day of dismissal (termination of the employment contract) in this case is the day of issuance of the work book. An order (instruction) of the employer is issued on the new day of dismissal of the employee, and an entry is made in the work book. A previously made entry on the day of dismissal is invalidated in the manner prescribed by the Rules for the maintenance and storage of work books.

As you can see, labor legislation does not make a fundamental difference between the untimely issuance of a work book and the inclusion of an incorrect wording of dismissal in it for the purpose of applying liability to the employer: these violations in any case prevent the employment of the dismissed new job.

When resolving a labor dispute in court, the court will find out whether the failure to issue a work book prevented the employee from entering a new job, and, depending on the clarified circumstances, decide on the issue of compensation for lost earnings.

Let us give an example from judicial practice.

P. filed a lawsuit against LLC and asked to recover unpaid wages for the period from December 2009 to the present, compensation for unused vacation, compensation for non-pecuniary damage and oblige the company to issue him a work book. In support of the stated requirements, P. indicated that since December 2009 he could not receive the due salary and work book with records for the period worked. The Kuibyshevsky District Court of St. Petersburg partially satisfied P.'s claims (the amounts recovered in a smaller amount than P. had requested), this decision and is complaining.

Having studied the materials of the case, the judicial board considers the decision of the court to be canceled, and here's why.

The general procedure for formalizing the termination of employment relations is defined in Art. 84.1 of the Labor Code of the Russian Federation, according to which, on the day of termination of the employment contract, the employer is obliged to issue a work book to the employee and make settlements with him in accordance with Art. 140 of the Labor Code of the Russian Federation. When P. was dismissed, the work book was not issued and the invitation to appear for the work book was not sent by mail.

The district court, obliging the LLC to issue a work book to the plaintiff, did not take into account the provisions of Art. 234 of the Labor Code of the Russian Federation on the consequences of not issuing a work book. Duty to reimburse an employee material damage provided for in par. 4 tbsp. 234, may be assigned to the employer only if these circumstances prevented the employee from entering a new job.

In view of the foregoing, the court should have established whether the failure to issue a work book prevented the employee from entering a new job, and, depending on this, resolve the issue of the consequences of not issuing this document. Since the district court did not do this, the decision is subject to cancellation, and the case must be considered again (Cassation ruling of the St. Petersburg City Court of 04.10.2011 N 33-14974/2011).

But, as practice shows, for most courts, in order to recover lost earnings, it is enough to recognize the fact of non-issuance of a work book within the time period established by the Labor Code (Determination of the Moscow City Court of 08.26.2011 in case N 33-24686).

So, if the issuance of a work book is delayed, the employer must reimburse the employee for the earnings he did not receive. The question arises: in what size and how to calculate it?

The Plenum of the Supreme Court of the Russian Federation in Decree No. 2 explained: since Art. 139 of the Labor Code of the Russian Federation establishes a unified procedure for calculating the average wage for all cases of determining its size, in the same order it is necessary to determine the average earnings when collecting money for the period of forced absenteeism caused by:

Delay in issuing a work book to a dismissed person;

Incorrect wording of the reason for dismissal (part 8 of article 394 of the Labor Code of the Russian Federation);

Delay in the execution of a court decision on reinstatement (Article 396 of the Labor Code of the Russian Federation).

At the same time, it must be borne in mind that the features of the procedure for calculating the average wage established by Art. 139 of the Labor Code of the Russian Federation, determined by Decree of the Government of the Russian Federation of December 24, 2007 N 922.

Payment of compensation for the delay in issuing a work book to an employee is issued by order. The court decision rendered in favor of the employee will become the basis for issuing this order. Let's take an example of it.

LLC "Red October"

Order No. 12

on payment of compensation

due to a delay in the issuance of a work book

Based on Art. 234 of the Labor Code of the Russian Federation and decisions of the Avtozavodsky District Court of Nizhny Novgorod dated December 28, 2011 N 13 / 1302-2011

I ORDER

pay Anna Ivanovna Eliseeva compensation for the late issuance of a work book in the amount of 24,204 rubles.

Director Pavlov / R. J. Pavlov /

Familiarized with the order:

Accountant Pronina, 01/23/2012 /N. O. Pronina /

Compensation for moral damage

One of the ways to protect a citizen of their rights is compensation for moral damage. The Plenum of the Supreme Court of the Russian Federation in Decree N 10 of December 20, 1994 "Some Issues of the Application of Legislation on Compensation for Moral Damage" explained that moral damage is understood as moral or physical suffering caused by actions (inaction) that encroach on intangible assets belonging to a citizen from birth or by virtue of law goods (life, health, personal dignity, business reputation, privacy, personal and family secrets, etc.) or violating his personal non-property rights (the right to use his name, the right of authorship and other non-property rights in accordance with laws on the protection of rights to the results of intellectual activity) or violating property rights citizen.

Note. According to Art. 21 of the Labor Code of the Russian Federation, an employee has the right to compensation for harm caused to him in connection with the execution job duties, and compensation for moral damage in the manner prescribed by the Labor Code of the Russian Federation and other federal laws.

Compensation for moral damage is made regardless of the fault of the tortfeasor, if it is caused (Article 1100 of the Civil Code of the Russian Federation):

The life or health of a citizen is a source of increased danger;

Dissemination of information discrediting honor, dignity and business reputation;

In other cases provided by law.

One of the obligations established for the employer by Art. 22 of the Labor Code of the Russian Federation, - compensation for harm caused to employees in connection with the performance of their labor duties, as well as compensation for moral damage in the manner and on the conditions established by the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation.

The procedure for compensation for non-pecuniary damage is established by Art. 237 of the Labor Code of the Russian Federation, according to which such harm caused by unlawful actions or inaction of the employer to the employee is compensated to him in cash in the amount determined by agreement of the parties to the employment contract.

In the event of a dispute, the fact of causing moral damage to an employee and the amount of its compensation are determined by the court, regardless of the property damage subject to compensation.

Note! Compensation for moral damage is carried out regardless of the property damage subject to compensation (Article 1099 of the Civil Code of the Russian Federation).

When determining the amount of compensation for non-pecuniary damage, the court takes into account the degree of guilt of the offender and other noteworthy circumstances. The court must also take into account the degree of physical and moral suffering associated with the individual characteristics of the person who has been harmed (Article 151 of the Civil Code of the Russian Federation).

In addition, the court must take into account the requirements of reasonableness and fairness.

It should be noted that almost every claim for the restoration of the violated rights of an employee is accompanied by a claim for compensation for moral damage. If the court takes the side of the employee, then it also satisfies this requirement. Of course, workers overestimate the amount of compensation for their moral suffering when they lose the opportunity to work due to the untimely issuance of a work book. The court, as a rule, reduces the amount of compensation.

Compensation for non-pecuniary damage must also be issued by order. If the parties to the employment relationship managed to agree on its size, then the basis for issuing such an order will be an agreement drawn up and signed by them. If an agreement has not been reached, the amount of compensation will be determined by the judges, and it is their decision that will become the basis for an order to pay compensation for moral damage to the employee.

Court expenses

In addition to compensation for material and non-pecuniary damage, the employer will have to reimburse legal costs if the court decides the case in favor of the employee. If an employee applies for consideration of a labor dispute to a district, city or regional court, court costs are inevitable. According to Art. 88 Code of Civil Procedure of the Russian Federation, they consist of the state fee and the costs associated with the consideration of the case. The latter include:

Payments to witnesses, experts, specialists and translators;

Payment for interpreter services foreign citizens and stateless persons, unless otherwise provided by an international treaty Russian Federation;

Travel and accommodation expenses of the parties and third parties incurred by them in connection with their appearance in court;

Payment for the services of representatives;

Postage and other expenses recognized by the court as necessary for the consideration of the case.

By virtue of Art. 98 of the Code of Civil Procedure of the Russian Federation, the court awards (requires from the guilty party) to reimburse all the legal costs incurred by the party in whose favor the court made the decision. Since the court most often takes the side of the employees, it is from the employer that he can demand payment of court costs.

Notification of the need to appear for the book -

"Lifebuoy"

If on the last day of work the dismissed person refuses to receive a work book in the presence of witnesses, the employer should not think that by drawing up an act of refusing to receive a book, he will relieve himself of responsibility for the delay in issuing it. If such a situation arises, the employer needs, after drawing up the act in accordance with the requirements of Art. 84.1 of the Labor Code of the Russian Federation send a notification of the need to appear for a work book by mail. Then not a single regulatory body will find something to complain about, and the labor dispute that has arisen will be resolved in favor of the employer.

Sometimes an employer, having fired an employee, does not issue a work book on the last working day, and sends a notice of the need to appear for it (as if coming to his senses, realizing that he is in danger of liability) only after some time, for example, after a month, believing that with this moment is free from risk. However, this is misleading. We repeat that the employer is released from liability for failure to issue a work book only from the date of sending a notice of the need to appear for this document. Therefore, if the employee goes to court, then earnings for the period from the day of dismissal to the day the notice is sent will be recovered from the employer.

So, the Sverdlovsk Regional Court, in its Ruling dated 08/09/2011 in case N 33-11075/2011, considered the situation when the employee was dismissed on 09/17/2010, and the work book was not issued - the owner received it only on 01/19/2011. The employee asked to recover earnings for the entire period. But the court pointed out that since the employer sent the former employee a notice of receipt of the work book on 12/09/2010, it is from this date that he is released from liability for the delay in issuing the work book. Thus, the former employee received compensation for the period of delay in issuing a work book from 09/18/2010 to 12/08/2010.

Administrative responsibility

The delay in issuing a work book to a retired employee is a violation of labor legislation, which obliges it to be issued on the last working day.

Violation of labor legislation and labor protection provides for administrative liability. So, on the basis of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, an administrative fine may be imposed on an employer who has not issued a work book on time:

For officials - in the amount of 1000 to 5000 rubles;

For persons who carry out entrepreneurial activity without forming a legal entity - from 1000 to 5000 rubles. or administrative suspension of activities for up to 90 days;

On the legal entities- from 30,000 to 50,000 rubles. or administrative suspension of activities for up to 90 days.

Summarize

It can be seen from the article that the desire of the employer to "teach a lesson" to the employee, without giving him a work book upon dismissal, can turn into negative consequences. It is clear that it is not worth delaying the issuance of a work book, so that subsequently you do not have to meet inspectors from the state labor inspectorate and go to court.

T. Yu. Komissarova

Journal Expert

"Human Resources Department

commercial organization"

Signed for print

  • HR record keeping

Keywords:

1 -1

The term for issuing a work book to an employee upon dismissal is fixed by the provisions of the labor legislation of the Russian Federation. In the article we will tell you what responsibility is provided for the employer in case of violation of the terms for issuing a work book, and also find out whether the current legislation provides for compensation for a delay in a work book.

When an employer is required to issue a work book upon dismissal

Based on Art. 35 of Section IV of Government Decree No. 225 of March 16, 2003, when terminating an employment contract, the employer on the day the employee is dismissed must:

  • make the necessary entries in the work book (grounds for dismissal, date, order number);
  • certify the entry with the signature of the employee responsible for maintaining work books, and affix the seal of the organization;
  • issue a completed book to a departing employee personally.

In accordance with the Decree, the employee must receive a work book on his last working day, which is also considered the day of dismissal on the basis of an order and in accordance with the entry in the work book.

Delay in the issuance of a work book: the responsibility of the employer

If on the day of dismissal the employee is not issued a work book, then the employer is held liable on the basis of Art. 35 of Decree No. 225. At the same time, penalties are applied in the case when the employer is found guilty of not receiving the work book by the employee within the prescribed period. If there is a delay in issuing a work book, the day the employee is dismissed is the day when the employee actually received the work book (taking into account the delay). The initial date of termination of the employment contract in this case is invalidated.

In addition, the employer may be held liable if, when filling out the work book, the responsible employee entered the wrong reason for dismissal, as well as in the case when the work book is filled out in a wording that does not comply with federal law.

Compensation for the delay of the work book

An employer who did not issue a work book to an employee on the day of dismissal is obliged to pay compensation to such an employee for the period from the moment of dismissal to the date the employee actually received the work book. Based on Art. 35 of Decree No. 225, the employer is obliged to compensate the employee for the average daily earnings for each day of delay in the work book.

The rationale for this statement is as follows: by delaying the issuance of a work book, the employer prevents the subsequent employment of a citizen in a new place, which means that he is found guilty of not receiving income for the period from the moment of dismissal to the day the work book was received.

The calculation of the amount of compensation is made according to the formula:

Compensation = AvgDnZar * KolDnDelay,

where AvgDnZar- the average daily earnings of an employee for the billing period;
KolDnDelay- the number of working days from the date of dismissal to the day the work book is issued.

The average daily earnings for calculating compensation is calculated by the formula:

AverageDnZar \u003d YearZar / 12 months. / 29.3,

where GodZar- the annual salary of the employee for the 12 months preceding the dismissal;
29,3 – average the number of days in a month.

Consider an example. Employment contract between Zhukov S.D. and Monolit LLC were terminated on 08/06/2020. On this day, the head of the personnel department, Shumov, who is responsible for filling out work books, was on vacation. In this regard, the work book was issued and issued to Zhukov after Shumov returned from vacation on 08/10/2020.

Since the vacation of the employee responsible for issuing work books is not an excuse for delaying the issuance of a work book, Monolit LLC was found guilty and is obliged to pay compensation to Zhukov in the amount of average earnings for the period of delay from 08/07/2020 to 08/10/18 (4 workers days).

Zhukov's salary for the 12 months preceding his dismissal amounted to 213,620 rubles.

Let's calculate the average earnings for 1 day:

213.620 rub. / 12 months / 29.3 \u003d 607.56 rubles.

The amount of compensation for the period of delay in the work book was:

RUB 607.56 * 4 days = 2.430.26 rubles

Compensation for the delay of the work book at the request of the employee

To receive compensation for the delay in issuing a work book, a citizen should contact the former employer with a free-form application. The text of the application should indicate:

  • date of dismissal according to the order;
  • date of actual receipt of the work book;
  • grounds for collecting compensation (Article 35 of Decree No. 225, Article 234 of the Labor Code of the Russian Federation).

The application must be drawn up in 2 copies, one of which should be handed over to the employer, and the second (with a mark on the date of acceptance by the employer) should be kept.

If the employer admits his guilt in a pre-trial procedure, then, on the basis of an order, the former employee will be paid the material damage caused by the employer for depriving the former employee of the opportunity to work.

Payment of compensation through the court

If the issue of payment of compensation is not resolved voluntarily, a citizen has the right to defend his interests in court. To do this, the dismissed employee should draw up statement of claim to the World Court, attaching to it documents confirming the delay in the work book due to the fault of the employer.

The decision on the issue of collecting the amount of compensation for the delay in the work book is made in the course of judicial proceedings. If the court takes the side of the plaintiff, then the former employer will be obliged to pay compensation to the citizen in the amount and in the manner prescribed by the writ of execution.

Exemption of the employer from liability for the delay of the work book

In some cases, the employer may be found not guilty of delaying the work book of a dismissed employee. We are talking about situations where the court found the innocence of the employer on the basis of Art. 36 of Decree No. 255.

If on the day of dismissal the employee was not at the workplace and it was not possible to establish his location, then the employer is released from liability for the delay and obligations to pay compensation. At the same time, it is important that the employer draw up and send a notice to the employee about the need to appear to receive a work book. The deadline for sending the notice is the day the dismissal order is issued.

If there is a notification, the employer is also exempt from paying compensation if, on the day of dismissal, the employee refused to receive a work book in his hands.

It is important to know that the employer can send the work book by mail to the employee only with his written consent. If on the day of dismissal the employee did not go to work and his location is not known, then the employer cannot send the work book to the address of residence without the written consent of the employee.

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

In accordance with domestic law, 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 required to maintain, store and issue the above documents to individuals in the event of termination of relations. However, employees 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 proper clearance labor rights relationship is the conclusion of an appropriate agreement between the employer and the employee.

When performing these 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 state other requirements not named in the above norm. This prohibition is reflected in the same article of the Code.

The employer issues an order on the fact of employment, which is the basis for making an appropriate entry in the work book. The named document is kept by the enterprise for the entire period of implementation by an individual official duties.

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, preparing 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 dismissal of the employee.

Obligations of an employer upon dismissal of an employee

Regulations Labor Code The Russian Federation declares freedom of labor. It follows from this that every individual has the right to quit at any time without giving reasons. To do this, it is enough to notify the company in advance of 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 grounds for terminating work, there is a general procedure for processing the termination of the contract or agreement.

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

An entry in the above document must be made at the end of 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 his own signature.

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

If the employer did not return the work book

Each person in the performance of their duties may encounter dishonest behavior of the enterprise. Such abuses concern the rights of employees and are expressed in non-compliance with the procedure for the final payment, the illegality of the grounds for terminating the contract, the failure to issue an order, or the delay in the work 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 designed to protect the rights of a citizen granted to him by law, as well as to protect the enterprise from unfounded claims 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 refusal to receive it or the absence of the employee, then the organization must send a message to the citizen about the need to appear for 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 relieved of responsibility for not issuing a work book upon dismissal of an employee.

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

A completely different procedure should be followed by the employee when he is deliberately not given a work book upon dismissal. In this case, the citizen should send the employer a written request for the return of the work book to him 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 the prosecutor's office of the Russian Federation. Also, the employee may demand the issuance of a book through the court.

Responsibility of the employer for the delay in issuing a work book

Regardless of the reason for the employer’s failure to fulfill its obligations upon dismissal of an individual current legislation responsible for violating the provisions of the law. Possible negative consequences established 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 up to 50,000 rubles. An individual entrepreneur can be fined for an amount not exceeding 5,000 rubles.

Cash in the above amounts are payable to the state. In addition to the described fine, for ignoring the provisions 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 the individual.

The described negative consequences can occur for the employer both if he evades the issuance of labor, and if he does not send the notification described above to the employee.

In accordance with par. 8 art. 165 of the Labor Code of the Russian Federation, in addition to the general guarantees and compensations provided for by this Code (guarantees when hiring, transferring to another job, remuneration, etc.), employees are provided with guarantees and compensations in case of a delay due to the fault of the employer in issuing a work book upon dismissal of an employee.
Article 234 of the Labor Code of the Russian Federation determines that the employer is obliged to reimburse the employee for earnings that he did not receive in all cases of illegal deprivation of his opportunity to work. Such an obligation, in particular, arises if the earnings are not received as a result of the employer's delay in issuing a work book to the employee.
According to clause 35 of the Rules for maintaining and storing work books, making blank work books and providing employers with them, approved by Decree of the Government of the Russian Federation of 04/16/2003 N 225, if the issuance of a work book to an employee is delayed due to the fault of the employer, entering into the work book incorrect or not in accordance with federal law formulating the reason for the dismissal of the employee, the employer is obliged to compensate the employee for the earnings that he did not receive for the entire time of the delay. The day of dismissal (termination of the employment contract) in this case is the day of issuance of the work book. An order (instruction) of the employer is issued on the new day of dismissal of the employee (termination of the employment contract), and an entry is made in the work book.
Based on the legal meaning of the law, the employer is responsible for the untimely issuance of a work book. If the employer, through his own fault, did not issue a work book on the day the employment contract was terminated, then he has an obligation to compensate the employee for the earnings he did not receive for the entire time of the delay in issuing the work book, while the average earnings to pay for the time of forced absenteeism are calculated in accordance with Art. 139 of the Labor Code of the Russian Federation.
In accordance with par. 2, 3 art. 139 of the Labor Code of the Russian Federation, for calculating the average wage, all types of payments provided for by the wage system used by the relevant employer, regardless of the sources of these payments, are taken into account. In any mode of work, the calculation of the average salary of an employee is made on the basis of the salary actually accrued to him and the time he actually worked for the 12 calendar months preceding the period during which the employee retains the average wage. In this case, the calendar month is the period from the 1st to the 30th (31st) day of the corresponding month inclusive (in February - to the 28th (29th) day inclusive).
Thus, I believe that it is necessary to file a claim with the court at the location of the defendant to recover the amount of compensation for the delay in issuing a work book. Claims for the protection of labor rights of citizens are not subject to state duty.

Upon dismissal, the employee of the organization was not given a work book and was not sent a notification by mail about the need to pick it up. The work book was issued to him six months after his dismissal. Now the dismissed employee is going to file a lawsuit to recover compensation for lost earnings during the delay in issuing a work book. What is the responsibility for the late issuance of a work book? Who is guilty of not issuing a work book: an employer organization or a personnel worker? If a dismissed employee wins a lawsuit, can the organization recover the amount of compensation paid from the employee responsible for accounting and maintaining work books?

For the untimely issuance of a work book, administrative and material liability is provided. In the first case, the person responsible for maintaining personnel records in the enterprise, or in the absence of such a person - the employer, and in the second - only the employer. But to recover from the guilty employee the amount paid to the dismissed employee for the delay in issuing a work book, the company will succeed only within the limits of his monthly salary.

On the day of termination of the employment contract, the employer is obliged to issue a work book to the employee and make settlements with him. The day of termination of the employment contract is the last day of work of the employee, except for cases when the employee did not actually work, but in accordance with the Labor Code of the Russian Federation or other federal law, the place of work was retained (Article 84.1 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 a notification to the employee about the need to appear for a work book or agree to send it by mail. Only by sending such a notification, the employer is released from liability for the delay in issuing a work book.

In the event of a delay in issuing a work book, adverse consequences may occur for the employer.

Firstly, the employer can be held administratively liable in the form of a fine in the amount of 30,000 to 50,000 rubles. Penalty for official responsible for issuing a work book is from 1000 to 5000 rubles. (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Secondly, if the employer delays the issuance of a work book, the employee may demand compensation for material damage (Article 234 of the Labor Code of the Russian Federation).

In particular, in the event of a delay in issuing a work book to an employee through the fault of the employer, entering into the work book an incorrect or inconsistent wording of the reason for dismissal, the employer is obliged to reimburse the employee for the earnings that he did not receive for the entire time of the delay (clause 35 of the Rules for maintaining and storing work books, manufacturing work book forms and providing employers with them, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225, hereinafter referred to as the Rules for maintaining work books).

Now let's dwell on who exactly is responsible for the untimely issuance of a work book: directly the employer or an employee authorized to maintain and store work books.

Paragraph 45 of the Rules for maintaining work books establishes that the employer is responsible for organizing work on maintaining, storing, recording and issuing work books and inserts in them. Responsibility for the maintenance, storage, accounting and issuance of work books is borne by a specially authorized person appointed by order (instruction) of the employer.

It follows from this rule that if the head of the employer organization has appointed a person responsible for maintaining, storing, accounting and issuing work books, then this person will be held administratively liable for the untimely issuance of a work book to an employee.

If there is no documentary evidence that the responsibility for maintaining personnel records is assigned by the employer to specific employee, to administrative responsibility under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, an employer organization will be involved (Decree of the Federal Antimonopoly Service of the Moscow District dated October 26, 2006 No. KA-A40 / 10220-06 in case No. A40-20745 / 06-148-194).

According to the rule established by Art. 234 of the Labor Code of the Russian Federation, material damage caused to an employee as a result of untimely issuance of a work book shall be reimbursed by the employer. Meanwhile, the employee who caused direct actual damage to the employer is obliged to compensate him (Article 238 of the Labor Code of the Russian Federation). In other words, the employer has the right to demand from a personnel employee who has not issued a work book in a timely manner to compensate for the damage received. But the maximum amount of damage that an employer can recover from a personnel worker is his average monthly salary (Article 241 of the Labor Code of the Russian Federation).

 

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