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 ISSUE OF THE EMPLOYMENT BOOK - ANSWER BY LAW!

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

About the rules for issuing a work book

In accordance with the general procedure for 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 the employee a work book. In the event that, on the day of termination of the employment contract, it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for the work book or to agree to send it by mail. By written request an employee who did not receive 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 04.16.2003 N 225: the employer is obliged to give the employee on the day of dismissal (the last day of work) his work book with a record of dismissal entered into 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 responsibility from the day of sending a notification of the need to appear for a work book. The employer is not responsible even if the last day of work does not coincide with the day of registration of termination labor relations upon dismissal of an employee on the basis provided for in paragraphs. "a" clause 6, part 1 of Art. 81 (for absenteeism, that is, absence from the workplace without good reason during the entire 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 clause 4 of part 1 of Art. 83 of the Labor Code of the Russian Federation (conviction of an employee to a punishment excluding the continuation previous work, in accordance with the court verdict, which entered into legal force) or upon the dismissal of a woman, the term of the employment contract with which 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 delayed issuance of 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, in accordance with which a party to an employment contract (employer or employee) who caused damage to the other party compensates for this damage in accordance with this Code and other federal laws.

An employment contract or agreements concluded in writing attached to it may specify the material responsibility of the parties to this contract. At the same time, the contractual liability of the employer to the employee cannot be lower, and the employee to the employer - higher than that 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 material liability provided for by the Labor Code of the Russian Federation.

Material liability of a party to an employment contract arises for damage caused by it to the other party to this contract as a result of guilty illegal behavior (actions or inaction). For the employer to be financially liable, the following conditions must be met:

The presence of damage (proof of its presence - the employee's statement on compensation for the damage caused, confirmed by documents. Damage can also be confirmed by testimony);

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

The unlawfulness of the actions or inaction of the employer;

The causal relationship between the culpable actions (inaction) and the resulting damage.

Note that the employee also does not bother to stock up on evidence that non-performance or improper performance the duties imposed on the employer resulted in damage.

The employer will be financially liable, in particular, for the illegal deprivation of an employee of the opportunity to work (Article 234 of the Labor Code of the Russian Federation). For example, if they did not receive earnings as a result:

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

Refusal of the employer to comply or untimely execution of the decision of the labor dispute settlement authority or the state legal labor inspector on the reinstatement of the employee in his previous job;

Delays by the employer in issuing a work book to an employee, entering in the work book an incorrect or non-compliant formulation of the reason for the employee's dismissal.

This is also stated in clause 35 of the Rules for maintaining and storing work books: in case of delay in issuing a work book to an employee through the fault of the employer, entering an incorrect or inappropriate work book into the work book federal law the wording of the reason for the employee's dismissal, the employer is obliged to reimburse the employee for the earnings not received by him for the entire period of delay. The day of dismissal (termination of the employment contract) in this case is the day of issue of the work book. An order (order) of the employer is issued about the new day of dismissal of the employee, and an entry is made in the work book. The previously made entry on the day of dismissal is invalidated in the manner prescribed by the Rules for maintaining and storing work books.

As you can see, labor legislation does not make a fundamental distinction between the untimely issuance of a work book and the introduction of the wrong wording of dismissal for the purpose of applying financial liability to the employer: these violations in any case prevent the employment of the dismissed person. 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 circumstances clarified, decide the issue of compensation for lost earnings.

Let's give an example from judicial practice.

P. went to court with a claim against LLC and asked to recover wages not paid for the period from December 2009 to the present, compensation for unused vacation, compensation for moral harm and oblige society to issue him a work book. In support of the stated claims, P. indicated that since December 2009 he has not been able to receive the due salary and work book with records for the period worked. The Kuibyshevsky District Court of St. Petersburg satisfied P.'s claims in part (the amounts were collected in a smaller amount than P. had requested), this decision and appeals.

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

The general procedure for registration of the termination of labor relations is determined 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 the employee a work book and make payments with him in accordance with Art. 140 of the Labor Code of the Russian Federation. P. upon dismissal, 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. Obligation to compensate an employee material damage, provided for in par. 4 tbsp. 234 may be imposed on the employer only if these circumstances prevented the employee from entering a new job.

Taking into account the foregoing, the court should have established whether the non-issuance of 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 must be canceled, and the case must be considered again (Cassation ruling of the St. Petersburg City Court dated 04.10.2011 N 33-14974 / 2011).

But, as practice shows, for the majority of courts to recover unreceived earnings, it is enough to recognize the fact of failure to issue 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, in the event of a delay in issuing a work book, 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 RF Armed Forces in Resolution No. 2 explained: since in Art. 139 of the Labor Code of the Russian Federation, a unified procedure for calculating the average wage for all cases of determining its size is established, in the same manner, the average earnings should be determined when collecting monetary amounts during forced absence 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 at work (Article 396 of the Labor Code of the Russian Federation).

It should be borne in mind that the specifics of the procedure for calculating the average wage established by Art. 139 of the Labor Code of the Russian Federation, determined by the Decree of the Government of the Russian Federation of 12.24.2007 N 922.

Payment of compensation for the delay in issuing a work book to an employee is formalized by order. A court decision in favor of the employee will become the basis for the publication of this order. Let's give an example.

OOO "Red October"

Order N 12

on payment of compensation

due to the delay in issuing 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 28.12.2011 N 13 / 1302-2011

I ORDER

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

Director Pavlov / R. J. Pavlov /

Acquainted with the order:

Accountant Pronina, 23.01.2012 / N. O. Pronina /

Compensation for moral damage

One of the ways a citizen protects his rights is to compensate for moral damage. The Plenum of the RF Armed Forces, in Resolution No. 10 of 20.12.1994 "Some Issues of the Application of Legislation on Compensation for Moral Damage", explained that moral harm is understood as moral or physical suffering caused by actions (inaction) encroaching on intangibles belonging to a citizen from birth or by virtue of law. goods (life, health, dignity of the individual, business reputation, privacy, personal and family secrets, etc.) or violating his personal moral rights (the right to use his name, the right of authorship and other moral rights in accordance with the laws on protection of rights to the results of intellectual activity) or violate the property rights of a 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 performance of labor duties, and compensation for moral damage in the manner established by the Labor Code of the Russian Federation and other federal laws.

Compensation for moral damage is made regardless of the fault of the inflictor of harm, 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 under 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 moral damage is established by Art. 237 of the Labor Code of the Russian Federation, according to which such harm caused by illegal 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 inflicting moral harm on the employee and the amount of his 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 moral damage, the court takes into account the degree of guilt of the offender and other circumstances worthy of attention. The court must also take into account the degree of physical and mental suffering associated with the individual characteristics of the person who has suffered harm (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 violated employee rights 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. As a rule, the court will reduce the amount of compensation.

The payment of compensation for moral damage must also be formalized by order. If the parties to the labor 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 the order to pay compensation for moral damage to the employee.

Court expenses

In addition to compensation for material and moral 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 a labor dispute to a district, city or regional court, legal costs are inevitable. According to Art. 88 Code of Civil Procedure of the Russian Federation, they consist of a state fee and costs associated with the consideration of the case. The latter include:

Payments to witnesses, experts, specialists and translators;

Payment for translation 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 the appearance in court;

Payment for the services of representatives;

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

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

Notification of the need to appear for a 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 refusal to receive a book, he will relieve himself of responsibility for the delay in issuing it. If such a situation has arisen, the employer needs, after drawing up an 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 supervisory authority will find something to complain about, and the labor dispute that has arisen will be resolved in favor of the employer.

Sometimes the employer, having dismissed the employee, does not issue a work book on the last working day, and sends a notice of the need to come for it (as if coming to his senses, realizing that he is facing responsibility) only after some time, for example, after a month, believing that since this moment is freed from risk. However, this is a delusion. We repeat that the employer is released from liability for not issuing a work book only from the date of notification of the need to appear for this document. Therefore, if the employee goes to court, then the earnings for the period from the day of dismissal to the day of sending the notification will be collected from the employer.

Thus, the Sverdlovsk Regional Court, in the Ruling of 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 collect wages for the entire period. But the court indicated that since the employer sent the former employee a notice of receipt of the work book on 09.12.2010, it was from this date that he was 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

Delay in issuing a work book to a retired employee is a violation of labor law, which obliges to issue it on the last working day.

For violation of labor legislation and labor protection, administrative liability is provided. 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 1,000 to 5,000 rubles;

On persons exercising entrepreneurial activity without forming a legal entity, - from 1000 to 5000 rubles. or administrative suspension of activities for up to 90 days;

On 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 employer's desire to "teach" the employee a lesson without giving him a work record book upon dismissal can have negative consequences. It is clear that you should not delay the issuance of a work book, so that later you do not have to meet inspectors from the state labor inspectorate and go to the courts.

T. Yu. Komissarova

Journal Expert

"Human Resources Department

commercial organization "

Signed to print

  • HR administration

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 liability is provided for the employer in case of violation of the terms for issuing the work book, and also find out whether the current legislation provides for compensation for the delay in the work book.

When the employer is obliged to issue a work book upon dismissal

Based on Art. 35 of Section IV of Government Decree No. 225 of March 16, 2003, upon termination of the employment contract, the employer on the day of the employee's dismissal is obliged:

  • make the necessary entries in the work book (grounds for dismissal, date, order number);
  • certify the record with the signature of the employee responsible for maintaining work books, and affix the seal of the organization;
  • hand over the issued book to the leaving employee personally.

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

Delay in issuing a work book: the employer's responsibility

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 Resolution 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. In case of a delay in issuing a work book, the day the employee is dismissed is considered the day when the employee actually received the work book (taking into account the delay). In this case, the original date of termination of the employment contract 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 was filled out in a formulation that does not comply with federal legislation.

Compensation for delayed work book

An employer who did not issue an employee with a work book on the day of dismissal is obliged to pay such an employee compensation for the period from the moment of dismissal to the date the employee actually received the work book. Based on Art. 35 of Resolution No. 225, the employer is obliged to compensate the employee with 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 him from the moment of dismissal until the day of receiving the work book.

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

Compensation \u003d AvgDnZar * KolDnDelay,

where AverageDnZar - the average daily earnings of an employee for the billing period;
ColDnLay - the number of working days from the date of dismissal to the date of issue of the work book.

Average daily earnings for calculating compensation is calculated using the formula:

AverageDnZar \u003d YearZar / 12 months. / 29.3,

where YearZar - employee's annual earnings for 12 months preceding dismissal;
29,3 Is the average number of days in a month.

Let's look at an example. The employment contract between Zhukov S.D. and LLC "Monolit" were terminated on 06/08/2020. 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 drawn up and issued to Zhukov after Shumov returned from vacation on 08/10/2020.

Since the leave of the employee responsible for issuing work books is not an excuse for delaying the issuance of work books, Monolit LLC was found guilty and obliged to pay Zhukov compensation 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:

RUB 213.620 / 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 \u003d RUB 2.430.26

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

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

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

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

If the employer pre-trial admits his guilt, then, on the basis of the order, the former employee will be paid 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 on a voluntary basis, the citizen has the right to defend his interests in court. To do this, the dismissed employee should compile statement of claim to the Magistrate's Court, attaching documents confirming the delay in the work book through the fault of the employer.

The decision on the issue of recovering the amount of compensation for the delay in the work book is made in the course of court proceedings. If the court takes the side of the plaintiff, then the former employer will be obliged to pay the citizen compensation 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 when the court found the employer innocent on the basis of Art. 36 of Resolution 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 draws up and sends a notification to the employee about the need to appear for a work book. The deadline for sending the notice is the day the order of dismissal is issued.

If there is a notice, the employer is also exempted from paying compensation if, on the day of dismissal, the employee refused to receive a work book.

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 employee's written consent.

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 citizens' work, 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 proper registration labor rightsrelationship is the conclusion of 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 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 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 grounds for termination of work, there is a general procedure for drawing up the 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 duties may face unfair behavior of the company. 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 book upon dismissal.

For such cases, domestic legislation has developed a special algorithm of actions that is mandatory for the employee and employer. This mechanism is intended 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 the refusal to receive it or the absence of the employee, 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 fired.

These actions and consequences apply if the documents related to the work were not received by the 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 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, an employee may demand the issuance of a 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 provides for liability for violation of the provisions of the law. 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.

In accordance with para. 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, wages and others), workers are provided with guarantees and compensations in case of delay through the fault of the employer in issuing a work book when an employee is dismissed.
Article 234 of the Labor Code of the Russian Federation stipulates that the employer is obliged to reimburse the employee for the earnings not received by him in all cases of illegal deprivation of his opportunity to work. Such an obligation, in particular, occurs if the earnings are not received as a result of the employer's delay in issuing the work book to the employee.
According to clause 35 of the Rules for maintaining and storing work books, making work book forms and providing employers with them, approved by Decree of the Government of the Russian Federation of 04/16/2003 N 225 in the event of a delay in issuing a work book to an employee due to the fault of the employer, entering in the work book incorrect or not complying with federal law the wording of the reason for the dismissal of the employee, the employer is obliged to compensate the employee for the earnings not received by him for the entire period of delay. The day of dismissal (termination of the employment contract) in this case is the day of issue of the work book. On the new day of the employee's dismissal (termination of the employment contract), an order (order) of the employer is issued, 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 of termination of the employment contract, then he has the obligation to reimburse the employee for the earnings not received by him for the entire time of the delay in issuing the work book, while the average earnings to pay for the time of forced absence is calculated in accordance with Art. 139 of the Labor Code of the Russian Federation.
In accordance with para. 2, 3 tbsp. 139 of the Labor Code of the Russian Federation, for calculating the average wage, all types of payments provided for by the wage system are taken into account, which are used by the relevant employer, regardless of the sources of these payments. In any mode of work, the average wage of an employee is calculated based on the actually accrued wages and the hours actually worked by him for 12 calendar months preceding the period during which the employee retains the average wage... In this case, a calendar month is considered 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 to 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 the labor rights of citizens are not subject to state duty.

Upon dismissal, an employee of the organization was not given a work book and a notification was not sent 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 employing organization or a personnel worker? If the dismissed employee wins the litigation, can the organization recover the amount of compensation paid from the employee who is responsible for recording and maintaining work books?

Administrative and financial liability is envisaged for late issuance of a work book. In the first case, the person responsible for maintaining personnel records at the enterprise, or in the absence of such a person - the employer, and in the second - only the employer. But the company will only be able to recover from the guilty employee the amount paid to the dismissed employee for the delay in issuing the work book, only within the limits of his monthly earnings.

On the day of termination of the employment contract, the employer is obliged to issue the employee with a work book and make payments with him. The day of termination of the employment contract is the last day of the employee's work, 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 the employee due to his absence or refusal to receive it, the employer must send the employee a notice of the need to appear for the 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 for the employer, adverse consequences may occur.

Firstly, the employer can be brought to administrative responsibility in the form of a fine in the amount of 30,000 to 50,000 rubles. Penalty for officialresponsible 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 the issuance of a work book to an employee through the fault of the employer, the entry into the work book of an incorrect or not complying with federal law wording of the reason for dismissal, the employer is obliged to reimburse the employee for the earnings he did not receive during the entire delay (clause 35 of the Rules for maintaining and storing work books, manufacturing work book forms and their provision to employers, approved by the decree of the Government of the Russian Federation dated 04.16.2003 No. 225, hereinafter - 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.

Clause 45 of the Rules for maintaining work books establishes that the responsibility for organizing work on maintaining, storing, recording and issuing work books and inserts in them rests with the employer. Responsibility for maintaining, storing, recording and issuing work books is borne by a specially authorized person appointed by order (order) of the employer.

It follows from this provision that in the event that the head of the employing organization has appointed a person responsible for maintaining, storing, recording 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 employing organization will be involved (resolution 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 is compensated by the employer. Meanwhile, an employee who has caused direct actual damage to the employer is obliged to reimburse it (Article 238 of the Labor Code of the Russian Federation). In other words, the employer has the right to demand from a career employee who untimely issued a work book to compensate for the damage received. But the maximum amount of damage that can be recovered by an employer from a full-time employee is his average monthly earnings (Article 241 of the Labor Code of the Russian Federation).

 

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