What if the employer does not give the work book and where to go in such cases?

Hello, they don’t give me the “labor” after a quarrel with their bosses and dismissal from their previous place of work. Tell me what to do if the employer does not give the work book and where it is better to apply in such situations? Thank you in advance.

Marina, 34 years old, Moscow

Hello, without returning the workbook to the employee, the employer commits a gross violation of the law. To return this important document, you can contact the labor inspectorate or file a lawsuit with the judiciary. It is important to know the main features of this procedure.

So, what to do and where to go if the employer does not give the work book.

You will find out what to do if the employer does not give the work book and where to turn in such situations.

1. When should they give the work book upon dismissal

According to the current legislation, the work book must be issued on the last working day, i.e. on the day the employee is fired. This rule is often violated.

Most often, the reasons for this are:

1. detection of an employee who was the materially responsible person of a shortage that was not reimbursed;
2. the dismissed did not pass the instruments and materials issued to him;
3. the employee did not hand over all the cases and did not complete the necessary work;
4. dismissal takes place against a background of conflict.

It is important to understand: The reasons presented above are not fixed in the legislation. Organization not entitled refuse to issue a work book. At the same time, the reason for termination of the employment contract has absolutely no significance.

If the employee did not come for a work book or for some reason was absent from the workplace on the day of dismissal, the employer must notify him in writing of the need to receive documents. On the basis of such notification, the dismissed person must appear for the work book or send consent to the organization to send documents by mail.

If the employee has not taken the work book, the employer has 3 daysto transfer this document to him in any way.

2. What to do if the employer does not give the work book - 3 ways to resolve the issue

Method 1. Attempting a peaceful resolution to the problem

First of all, any issue should be tried to resolve peacefully. If the former employer does not issue a work book, the employee should first draw up a written appeal. To this end, you must write statement.

This document must contain the following data:

• surname, name, patronymic, position of the head of the organization;
• surname, name and patronymic of the dismissed (the position should not be indicated, since the termination of the employment contract has already occurred);
• address of residence, as well as contact phone number of a former employee;
• in the text of the application, the owner of the employment book must state the request to issue a document, since the termination of the employment contract has occurred. It should be noted that such actions are a direct violation of the Labor Code of the Russian Federation. Next, you should warn the former employer that with further retention of the work book, the dismissed person will turn to the relevant authorities.
• At the end of the application, you must put the date and signature.

The document under consideration is executed in 2-Uh copies. One of them is transferred to the former employer. The second copy remains with the dismissed employee. On him important ask for an acceptance mark indicating the date.

If the employer does not wish to accept the application, it should be sent registered mail with notice. At the same time, an inventory is drawn up so that in the future, if necessary, it can be proved that this document was sent to the employer.

In most cases, according to all the rules, the submitted application properly affects the former employer. The fact is that checking the relevant authorities can lead to the identification of various kinds of violations. As a result, the dismissed person is given a work book without any problems.

When the application is submitted to the employer, it is necessary to wait a certain time. One side, This period is not established by law. On the other hand, The period of time should be reasonable. It makes no sense to contact various authorities through 1-2 days after the submission of the application.

Method 2. Contacting the labor inspectorate and prosecutor's office

If the application sent to the employer did not work, or the dismissed person has no desire to write it, he can send appeal to the labor inspectorate or prosecutor's office. There are several options to do this:

• personal appeal to the inspection;
• sending an application in electronic form on the official website;
• Sending by registered mail by Russian post.

In a statement, a former employee first of all indicates his full details. Besides last names, the name and patronymic you must write address of the place of residence.

Further, it is important to describe in detail the events that served as the reason for the appeal to the authorities. Without fail, the application must reflect:

• full name, as well as the address of the organization of the employer or the branch in which the employee was employed;
• the period of work, as well as the date of dismissal;
• position held by the employee during the period of work.

If possible, should be attached to the application. copy of employment contract, as well as dismissal order.

The complaint is sent to the prosecutor in the same way. However, remember that the law sets a specific deadline for resolving such issues. According to the Labor Code, disputes must be resolved by the employee within 3 months from the date of dismissal.

However, this deadline is set solely for the employee to file a complaint. Even if it has expired, the employer has no right to keep the labor book of the dismissed. He is obliged to issue it after the appeal of the former employee, regardless of how much time has passed since his dismissal.

Method 3. Appeal to the court

At its core, filing a lawsuit in court is an extreme measure that is resorted to when no other actions have helped. However, often dismissed people use this option when they want to receive from the employer compensation. Such payments may be made solely by court order.

To apply to the judiciary, first of all, you should draw up lawsuit. He is sent to the court, which is located at the place of state registration of the employer.

An important requirement for a lawsuit is the need to clearly indicate the requirements:

1. return of a work book held without legal grounds;
2. payment of compensation for involuntary absenteeism;
3. payment of moral compensation for the lack of employment opportunities for a new job.

Since in most cases, experts recommend that before resolving the matter in a judicial proceeding, try to resolve it peacefully, it is recommended that a legal proceeding be attached to the lawsuit statement.

In addition, in the case of the settlement of the issue in the judiciary, there is another feature. The date of dismissal in this case will be moved.

In other words, the court will oblige the employer to amend the record of employment and dismissal. As a result, the former employee for the period of forced absenteeism, seniority will be maintained.

3. Responsibility of the employer if he does not give the work book

If it is possible to prove that the employer illegally detained a work book, he is threatened with the following measures:

• fine up to 50 thousand rubles to a legal entity;
• fine up to 5 thousand rubles to officials and individual entrepreneurs.

In addition, if the court decides, the employer will have to pay the former employee compensation for each day of retention of this document. However, liability can be avoided if the organization sent a dismissed employee a notice that he should pick up the work book.

4. What to do if the labor book remains with the liquidated organization 📚

In practice, there are situations when the workbook remains with the employer, which is being liquidated. Moreover, organizations do not always submit documents to the archive. As a result, finding a job becomes almost impossible.

You can read more about the reorganization of a legal entity and the bankruptcy of legal entities in our previous issues.

In this case, the former employee should contact the previous employer. He is given a request to issue a duplicate work record.

It is also possible to file a lawsuit against the liquidated organization. In this case, one can demand moral compensation for the employer's failure to fulfill obligations and not transferring personal documents to the state archive.

In this way, if the employer does not give the workbook to the former employee on the day of dismissal, it directly violates the Labor Code of the Russian Federation. Such actions may result in administrative penalties.

A former employee who has not been issued a document may file a complaint with labor inspection or prosecutor's office. In addition, it is possible to resolve the issue in court.

If you can win the case, the former employer will be obliged to issue the dismissed average wage during the forced absence. In addition, if the court considers this possible, material compensation can be obtained.

It may be interesting to read: "How to write a resume for a job", "How to get an interview for a job."

And also watch the video:

We hope that we were able to help in resolving the issue when the employer does not issue a work book.

If you still have any questions, ask them in the comments below. See you on the pages of RichPro.ru magazine!

Watch the video: The Law You Won't Be Told (October 2024).