If the employer refuses to accept an application from an employee, it can be sent by registered mail with notification. ATTENTION! Look at the completed sample application to the employer for the issuance of a work book after dismissal: If no actions of the employee help, and the employer refuses to return work book, the next step is to contact the labor inspectorate at the location of the enterprise. In any conflict situation with the boss, in which he refuses to provide a work book, it is necessary to correctly and competently protect your rights.
In exceptional cases, such as unlawful reduction, the application period is reduced to one month from the date of the actual violation.
In addition to applications sent to the Prosecutor's Office, an employee can defend his civil position by going to court. This method is constitutionally fixed. The court considers appeals that are of a proprietary nature, applications for the restoration of rights. If the application was submitted personally, then the period for consideration of the application by the Prosecutor's Office is one month, after which the employee is provided with a response and a description of the further actions of the authorities.
Responsibility for violations labor law, applied to the head of the institution, according to the law is divided into: The victim may also demand compensation moral damage. The amount is determined by the court. Sample application to the prosecutor's office about inflated electricity tariffs? In addition, the organization will pay legal and other costs. Let's move on to the text of the document itself.
Usually, it consists of 3 parts: But if the order is not issued, and your application is lost for unknown reasons, you will have to act from the very beginning, submitting an application in accordance with all the rules.
- Each case is unique and individual.
- Careful study of the issue does not always guarantee a positive outcome of the case.
Illegal delay in the work book (TK) upon dismissal: an algorithm of actions
After signing both copies, keep one of them for production, checking the correctness of its registration in the journal of incoming correspondence. Keep the second copy.
After that, after 15 days, you have the right to demand the issuance of a labor. In this case, or in other situations, when the employer has already issued a dismissal order, the book is issued without delay.
If it is not issued within three days after the dismissal, you have the right to apply to the KTS, if it is available in your unit or enterprise.
- on the relevant article of the Labor Code of the Russian Federation;
- on the issued notice of dismissal.
In these cases, the employee may request the issuance or transfer of a document, there should be no obstacles in terms of obtaining.
Sample applications to the prosecutor's office against the employer on the non-issuance of a work book
To the State Labor Inspectorate
G. _________,
address: ______________________
Complaint for the recovery of compensation for the delay of the work book
Consider this complaint on the merits.
Carry out an audit of LLC “__________” (legal address: _____________________________; actual address: _________________________________ General Director - ___________) based on the facts indicated by me), restore my violated rights and bring the perpetrators to appropriate responsibility.
Respond to this complaint as soon as possible short time. To maintain confidentiality, a clause can be directly included in the complaint with a request that information about the complainant not reach the employer. By law, labor inspectorate specialists must take the necessary measures to resolve the conflict and, based on the results of the proceedings, send a response to the complainant. In the case of a personal appeal, the citizen should bring two copies of the complaint. One Document authorized person picks up, and on the other indicates information about the receipt. A complaint to the prosecutor can be submitted orally, during a personal visit, but even in this case it is better to draw up a written appeal so that it is properly recorded.
Sample complaint to the prosecutor's office against the employer
Complain to the management of a commercial or state organization or for an individual entrepreneur, employees can any violation of their rights :
Wherein one point to be taken into account. Anonymous appeals will be considered only if they indicate a crime committed. In this case, an employee to whom the management does not pay wages can anonymously apply to the department, referring to Article 145 of the Criminal Code of the Russian Federation, which states that non-payment of wages has all the signs of a crime.
In the document, an individual must, in addition to the violations committed by his management, indicate regulations governing these issues. In some cases, for example, when illegal dismissal, the statute of limitations can be reduced up to 1 month .
If an employee applied to the prosecutor's office within a year from the moment of the occurrence of a two-month salary arrears, then a criminal case will be initiated after the application is accepted for work. Before filing a complaint, an individual must find out the exact address of the prosecutor's office located in his area and the name of its leader. This information will be needed to process document headers, in which you will also have to indicate your full name, TIN and registration address. You should also enter your phone numbers by which an employee of the department can contact and clarify questions of interest to him. Attention! Our qualified lawyers will assist you free of charge and around the clock on any issues.
Learn more here. Civil law defines liability. Taking into account the provisions of the Civil Code of the Russian Federation (F3 No. 14 of January 26, 1996), the amount of losses incurred is determined: losses are compensated in full, real damage is paid, and additional compensation is made for the unfulfilled benefit. If you want to sue for a refund material damage article 234 of the Labor Code of the Russian Federation and non-pecuniary damage of article 237 of the Labor Code of the Russian Federation, then “I, full name, worked in “……. (indicate the name of the employer’s organization and its organizational and legal form of ownership (LLC, IP, OJSC, etc.) for the position “……….. from “___ _______________ 20__ to” ___ ______________ 20___
- dates of dismissal;
- name of the organization;
- your personal data;
- personal data of the responsible person.
Dismissal and work book The work book is an official document One way or another, sooner or later, any employer will face the fact that one of his employees will bring him a letter of resignation.
Application for the obligation to issue a work book
The Respondent did not issue a work book to the Claimant on the day of dismissal / belatedly sent a notice to the Claimant about the need to pick up the work book / sent the work book to the Claimant late. Sample applications to the prosecutor's office for non-payment of child care allowance? For this reason, during the period from “___ ____________ to” ___ ____________, the Claimant was deprived of the possibility of further employment through the fault of the Respondent.
In the event that on the day of termination 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. From the date of sending the said notification, the employer is released from liability for the delay in issuing a work book.
“___ ____________ The plaintiff was dismissed from his position on the basis of _________________, which is confirmed by the dismissal order. In accordance with Part 4 of Art.
84.1 of the Labor Code of the Russian Federation on the day the employment contract is terminated, the employer is obliged to issue a work book to the employee and make a settlement with him in accordance with Art. 140 of the Labor Code of the Russian Federation. At the written request of the employee, the employer is also obliged to provide him with duly certified copies of documents related to work. Based on the terms of the employment contract / certificate 2-NDFL / statement from the bank account of the Plaintiff, his average earnings is ____________ rub. per month.
Thus, the amount of earnings not received by the Claimant for the specified period is ______________________ rubles, which is confirmed by the corresponding calculation attached to this application. Article 5.27 of the Code of administrative offenses Russia is liable 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. The specified actions and consequences apply if the documents related to the work were not received individual as a result of his will or due to circumstances on which the parties could not influence. This conclusion follows from a literal interpretation of legal norms.
All appeals sent to the prosecutor's office are recommended to be sent to the prosecutor who was at the head of the department. At the same time, it is desirable to display his rank, full name (for example, To the Prosecutor of the Tomsk Region, state councilor Justice 2 class I. I. Sidorov ...). Difficulties arise especially when there is still no employment contract. The problem of wages paid in envelopes is still acute.
And if an employee who performs his duties without a contract is not paid a salary, he still needs to write a complaint to the prosecutor's office about non-payment of money without a contract.
Delayed the issuance of a work book - answer according to the law
causal relationship between the guilty actions (inaction) and the resulting damage.
In view of the foregoing, the court should have established whether the failure to issue a work book prevented the employee from entering new job and, depending on this, resolve the issue of the consequences of not issuing this document. Sample applications to the prosecutor's office to initiate an administrative case? 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 dated 04.10.2011 N 33-14974 / 2011).
pay Anna Ivanovna Eliseeva compensation for the late issuance of a work book in the amount of 24,204 rubles. 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. 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
Complaint to the prosecutor's office against the employer - a sample application
The current legislation does not contain any uniform samples and rules for drawing up an application to the prosecutor's office for an employer, therefore it has an arbitrary form.
However, this does not mean that the specified paper should not meet the requirements of the workflow.
- Mandatory written form.
- Indication of the addressee, as well as information about the applicant himself (name, postal address).
- The name of the document is “Application”, “Complaint”.
- Main part. It implies a description of the controversial situation, a link to legislative acts, as well as an indication of what the violation of labor rights is expressed in.
- Documents confirming the fact of infringement of the rights and legitimate interests of a citizen may be attached to the appeal. All of them must be listed in the complaint.
- At the end of the document, a personal signature and the date of compilation are affixed.
P. 2. Art. 10 of the Federal Law "On the Prosecutor's Office establishes the terms for consideration of the received appeal to the prosecutor's office, in particular, we are talking about 30 days from the moment of its registration (3 days are allotted for it, which are calculated from the date of receipt of the application). At the same time, the current legislation of the Russian Federation makes an exception for messages that do not require additional study and verification.
In this case, the deadline is set at 15 days. In addition, certain provisions regarding the execution of an application (complaint) are spelled out in the "Instructions on the procedure for considering applications and receiving citizens in the prosecutor's office in the Russian Federation", approved. By order of the Prosecutor General's Office of Russia No. 45 dated January 30, 2013, the following should be noted here.
When is an employer obliged to issue a work book to a resigning employee? What types of liability are provided for the employer in case of delay in issuing this document? What is the liability of the employer? How is compensation paid for the delay? In what cases is the employer released from liability?
The form, procedure for maintaining and storing work books, as well as the procedure for producing forms of work books and providing them to employers are established:
- Rules for maintaining and storing work books, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books”;
- Instructions for filling out work books, approved by the Decree of the Ministry of Labor of the Russian Federation of October 10, 2003 No. 69.
Based on Part 4 of Art. 84.1 of the Labor Code of the Russian Federation on the day the employment contract is terminated, 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. A similar requirement is contained in the Rules for maintaining and storing work books: 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. If it is impossible to issue a document on this day due to the absence of the employee or refusal to receive it, the employer is obliged to send him a notification about the need to appear for a work book or agree to send it by mail.
At the 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 the request. For violation of the terms for issuing a work book, labor legislation provides for liability. Which?
Material liability
Based on Art. 232 of the Labor Code of the Russian Federation, a party to an employment contract (employer or employee) that caused damage to the other party compensates for this damage in the manner prescribed by the Labor Code of the Russian Federation and other federal laws. Employment contract or concluded in writing agreements to it, the liability of the parties to this agreement may be specified. Moreover, the contractual liability of the employer to the employee cannot be lower, and the employee to the employer - higher than provided Labor Code or other federal laws.
Article 233 of the Labor Code of the Russian Federation specifies that the material liability of a party to an employment contract occurs for damage caused by it to the other party to this contract as a result of guilty unlawful behavior (action or inaction), unless otherwise provided by the Labor Code of the Russian Federation or other federal laws.
So, by virtue of Art. 234 of the Labor Code of the Russian Federation, the employer is obliged to compensate the employee for material damage - earnings not received by him in all cases of illegal deprivation of his opportunity to work, including in the event of a delay in issuing a work book. This is also stated in paragraph 35 of the Rules for maintaining and storing work books: in the event of a delay in issuing a work book to an employee due to the fault of the employer, entering an incorrect or inappropriate entry into the work book federal law the employer is obliged to compensate the employee for the wages he has not received 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, 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.
For your information
The legislator believes that the untimely issuance of a work book makes it impossible for the former employee to find a job in a new place; accordingly, the employee must be compensated for lost earnings.
Note that the points of view of the courts on the issue of collecting lost earnings during the delay in issuing a work book are divided. Some believe that the fact of a delay in the issuance of labor is sufficient for recovery. So, Sh. applied to the Dzerzhinsky District Court of St. Petersburg with a lawsuit against LLC. She asked the court to oblige the defendant to change the date of dismissal to the date of issue of the work book and to recover compensation in connection with the delay in issuing the work book for seven months. Sh. wrote a letter of resignation, according to which November 28, 2014 was her last working day. On that day, Sh. was not given a work book, and on February 26, 2015, she received a notification about the need to come for a work book. The employer believed that he had not committed a violation, as he had sent a notification to Sh. However, the court thought otherwise. During the proceedings, it was established that Sh. was at the workplace on the day of dismissal, there were no grounds for not issuing a work book. A notice of the need to receive a book or agree to send it by mail was sent to the employee on February 20, 2015, that is, after almost three months from the date of dismissal. Sh. received a work book during the consideration of the case on 07/01/2015. Since the employer did not take all measures to hand over the work book to the resigned, the court exacted compensation for the delay in issuing the work book for the period from 11/28/2014 to 02/20/2015, and also changed the date of dismissal to 02/20/2015 ( Appellate ruling Petersburg City Court dated October 27, 2015 No. 33-18051/2015).
Other courts find out whether the delay in the work book by the employer really prevented the dismissed person from finding a job in a new place, and depending on this, they make a decision. In particular, A. applied to the court with a claim for the restoration of violated rights, since on the day of dismissal she was not paid and she was not issued a work book. The employer refused to do this, referring to A.'s debt to him. Considering the case, the court found that the employer really delayed the issuance of the work book.
At the same time, according to the court, the legislator connects the possibility of the employer's material liability to the employee for the delay in issuing a work book with the guilty behavior of the employer. The court found that the employer was telephone conversations with A. about receiving the book, that is, he took measures to hand it over. And the plaintiff herself explained at the court session that after her dismissal she did not intend to get a job, she did not make any attempts to find a job.
Refusing to recover compensation for the delay in issuing a work book, the court pointed out that such a delay in itself does not indicate the deprivation of A.'s right to work through the fault of the employer, since as a result of the actions of the latter, no obstacles were created to the conclusion of A. with another employer of an employment contract and her receipt wages. In this regard, imposing on the employer the obligation to compensate A. for property damage in the form of payment of earnings cannot be recognized as corresponding to the provisions of Art. 234 of the Labor Code of the Russian Federation.
The arguments of the complaint that, according to Art. 234 of the Labor Code of the Russian Federation, in itself, the non-receipt of a work book by the plaintiff indicates the deprivation of her right to work, which means that the employer is obliged to compensate the employee for lost earnings, the court considered them untenable, since they are based on a different interpretation of the current labor law(Appeal ruling of the Lipetsk Regional Court dated September 21, 2015 in case No. 33-2603/2015).
If, nevertheless, the court sided with the former employee, you will have to pay compensation for the delay in issuing the book. Recall that the rules for calculating average earnings are set out in Art. 139 of the Labor Code of the Russian Federation. Plenum of the Supreme Court of the Russian Federation in clause 62 of Resolution No. 2 of March 17, 2004 “On the application by courts Russian Federation of the Labor Code of the Russian Federation” explained that since this norm a unified procedure for calculating the average wage has been established for all cases of determining its size, the same procedure should be used to determine the average earnings when recovering amounts of money during forced absenteeism caused by a delay in issuing a work book to a dismissed employee (Article 234 of the Labor Code of the Russian Federation). Keep in mind that the features of the procedure for calculating the average wage are determined by Decree of the Government of the Russian Federation of December 24, 2007 No. 922.
Compensation payment processing
Documents drawn up by the employer to pay compensation for the delay in issuing a work book differ depending on the basis. Let's consider them.
1.By the tribunal's decision.
As soon as the employer has a court decision to pay compensation, the employer must issue an order for compensation. Let's take an example of an order.
Municipal budgetary preschool educational institution
« Kindergarten No. 17 "Kid"
(MBDOU "Kindergarten No. 17 "Kid")
Order No. 49
on the payment of compensation for the delay in issuing a work book
Based on Art. 234 of the Labor Code of the Russian Federation and the decision of the Sverdlovsk District Court of Kostroma dated October 30, 2015 No. 5-5784 / 2015
I ORDER
to pay L. V. Kudryashova compensation for the untimely issuance of a work book in the amount of 18,113 rubles. 42 kop.
Director Zanozina/A. O. Zanozina /
Familiarized with the order:
Accountant Kozina, 11/11/2015/L. V. Kozina /
Since in the event of a delay in issuing the book, the date of dismissal of the employee changes, the employer will have to issue another order (instruction) - on a new day of dismissal, and also make an entry in the work book. An earlier entry on the termination of the employment contract is recognized as invalid. This is stated in par. 4 clause 35 of the Rules for maintaining and storing work books
2.According to a former employee.
It is not at all necessary to wait for the court's decision - everything can be settled peacefully. Perhaps the employee will apply for compensation, and the employer will satisfy it or refuse it. In the latter case, most likely former employee will go to court. So, in the case of a “pre-trial” settlement of the issue, the employer must receive an application from the dismissed person with a request to pay compensation for the delay in issuing a work book, on the basis of which (if agreed) an order is issued.
In order to pay compensation, so to speak, voluntarily, the employer needs to calculate the period of forced absenteeism caused by the delay in issuing the book. Such a period is calculated from the day following the day when the employer was supposed to issue a labor or send a notice of the need to receive it, to the day the dismissed person received the book or sent him a notification.
Example
A. I. Volkova was dismissed own will 10/12/2015. On the day of dismissal, she did not receive a work book. Working hours - five days work week. Labor issued on 11/19/2015. For what period is compensation due if the average daily earnings of A. I. Volkova on the day of dismissal amounted to 780 rubles. 32 kopecks?
Determine the number of working days to be paid. Compensation for A. I. Volkova is due for the period from 10/13/2015 to 11/19/2015 - for 27 working days. The amount of compensation for the delay in issuing a work book in this case will be 21,068.64 rubles. (780.32 rubles x 27 working days).
Let us focus on one point: the employee himself may refuse to receive a work book on the day of dismissal. In this case, we recommend that the employer draw up an appropriate act and present it to the dismissed person for review. If he refuses to read the act, draw up another one confirming this fact. Mandatory after drawing up acts in accordance with the requirements of Art. 84.1 of the Labor Code of the Russian Federation, send a notice of the need to appear for a work book by mail. For what? We'll tell you a little later.
For your information
Labor books and their duplicates, which employees did not receive upon dismissal, must be kept by the employer until demand (clause 43 of the Rules for maintaining and storing labor books). The shelf life of work books is 75 years (Order of the Ministry of Culture of the Russian Federation dated August 25, 2010 No. 558 “On approval of the List of standard managerial archival documents generated in the course of activities government agencies, bodies local government and organizations, indicating the terms of storage").
When the employer is released from liability for the delay
The Labor Code determines that in some cases the employer is not responsible for the delay in issuing a work book. In particular, Part 6 of Art. 84.1 of the Labor Code of the Russian Federation establishes two such cases:
1. If it is impossible to issue a work book to an employee on the day of termination of the employment contract. For example, he is absent from work or refuses to receive a book. In this case, the employer is obliged to send him a notice of the need to appear for a work book or agree to send it by mail. From the date of sending the notification, the employer is released from liability for the delay in issuing a work permit.
Note that a notice of the need to appear for a work book or agree to send it by mail - important document: do not send a book by mail without the written consent of the employee to this. Thus, the employer was charged compensation for the delay in issuing a work book, since it was not issued to the employee on the day of dismissal and without obtaining written consent from him, as required by Art. 84.1 of the Labor Code of the Russian Federation, it was sent by mail. The employer did not have evidence of the issuance of a work book to the employee upon dismissal, including against signature in the manner prescribed by paragraph 41 of the Rules for maintaining and storing work books. As a result, the plaintiff's claims for the recovery of average earnings during the delay in the work book were satisfied (Appeal ruling of the Voronezh Regional Court dated July 29, 2014 No. 33-3589).
2. If the last day of work does not coincide with the day of registration of the termination of employment upon dismissal of an employee on the grounds provided for in paragraphs. "a", paragraph 6, part 1, art. 81 (for) or paragraph 4 of part 1 of Art. 83 (conviction of an employee to a punishment that precludes the continuation of the previous work) of the Labor Code of the Russian Federation, as well as upon dismissal of a woman whose employment contract was extended until the end of pregnancy or until the end of maternity leave in accordance with Part 2 of Art. 261 of the Labor Code of the Russian Federation. In these cases, at the written request of 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 such request.
Compensation for moral damage
In addition to compensation for the delay in issuing a work book, an employee may demand compensation for moral damage.
What is considered moral damage, for which compensation is due, - the Plenum of the Supreme Court of the Russian Federation explained in Resolution No. 10 of December 20, 1994 “Some Issues of the Application of Legislation on Compensation for Moral Damage”. It is stated there that moral or physical suffering caused by actions (inaction) that encroach on intangible benefits belonging to a citizen from birth or by virtue of the law (life, health, dignity, business reputation, immunity privacy, personal and family secrets, etc.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 the property rights of a citizen.
According to Art. 237 of the Labor Code of the Russian Federation, moral damage caused to an employee by unlawful actions or inaction of the employer is compensated 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.
The Plenum of the Supreme Court of the Russian Federation in Resolution No. 2 indicated that the amount of compensation for moral damage is determined by the court, based on the specific circumstances of each case, taking into account the volume and nature of the moral or physical suffering inflicted on the employee, the degree of guilt of the employer, other circumstances worthy of attention, as well as the requirements of reasonableness and justice.
Almost every claim for the restoration of the violated rights of an employee is accompanied by a claim for compensation for moral harm. If the court takes the side of the worker, it also satisfies the last requirement. Compensation for non-pecuniary damage must also be issued by order.
Other expenses
In addition to paying compensation, the employer may have to bear other costs. In particular, if the claim for compensation for the delay in issuing a work book was considered by the court, which sided with the dismissed person, court costs must be reimbursed. According to the Code of Civil Procedure of the Russian Federation, they consist of the state fee and the costs associated with the consideration of the case (part 1 of article 88). What is considered a cost - it is said in Art. 94 of the Code of Civil Procedure of the Russian Federation: amounts payable to witnesses, experts, specialists and translators, expenses for paying for the services of representatives and related to the consideration of the case, postage, etc.
An administrative fine is another possible expense for the employer. The delay in issuing a work book is in fact a violation of labor legislation, for which part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation is provided for legal entities administrative responsibility - a fine from 30,000 to 50,000 rubles.
If the regulatory authorities establish that the delay in issuing a work book has already taken place and the employer was brought to administrative responsibility for this, in the event of another delay, the fines will be more significant and for legal entities will range from 50,000 to 70,000 rubles.
When terminating an employment contract with an employer, an employee of the company must receive his work book in his hands. According to legal acts Russian Federation, the deadline for returning the document is the last working day of the employee.
However, often for one reason or another, employers are in no hurry to return the work book. In this article, we will try to analyze in detail what to do when this happens and who to contact.
Grounds that relieve the employer from liability for failure to issue a document upon dismissal
Let's consider the most typical situations when the head of the company is not responsible before the law.
Employee absent from work
It can be any force majeure circumstances: illness, departure to another city or for family reasons, etc.
In such situations, there is only one way out - the employer sends a letter with a return receipt to the employee with a request to pick up the document or agree to send it by mail.
In this case, the head is released from liability for untimely issuance.
Since sending by mail is a rather serious step, you need to obtain the written consent of the employee for this. If the employee did not give his consent to send the document, the head of the company is obliged to create conditions for their storage until demand, for a period of at least fifty years.
It also happens when an employee, due to moving to another country or for any other reason, cannot physically come and pick up a work book. In this situation, there is only one option - to issue a power of attorney. This can be done at any notary office.
The document states:
- personal data of the attorney and former employee of the company (last name, first name and patronymic, passport details and residential address, signature);
- name of the company, its details;
- signature of the owner of the document;
- date of issue and expiry date.
After issuing a notarized power of attorney, the attorney will be able to receive a work book in the personnel department of the company, where without fail employees draw up a receipt that the document was issued.
The employee refuses to collect his personal documents
For example, an employee does not agree with the dismissal, the employer is obliged by all means to try to return the papers by any possible means.
If the employee is at his workplace on the last day, but for some reason ignores requests to pick up the papers, it is necessary to draw up an act.
It fixes all the moments: indicate the reasons why the employee refuses to pick up the documents. After that, the employee signs the act and indicates the date, then transfers it to the personnel department.
In a situation where the moment for drawing up an act was missed, other measures must be taken. Try to send former colleague ordered letter with a request to contact the personnel department and pick up your work book.
Such paper is written in any form. You must specify: the name of the company, information about the employee, the date the letter was sent, contacts and other necessary information.
When the employer is responsible for the delay in issuing a work book to an employee upon dismissal
Many company executives, through blackmail, threats, intimidate employees by not issuing them a work book in a timely manner. Regardless of the reasons and pretexts for which the employer refuses to issue a document, a former employee of the company has the right to complain about the manager in authorized bodies or try to influence in other ways.
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If the document is not issued, the employee has the right to demand compensation for lost earnings due to the impossibility of further employment without a work book.
A former employee of the company has the right to claim financial compensation for lost earnings.
According to article 232 of the Labor Code of the Russian Federation, liability is provided for the late issuance of a document to an employee of the company. In accordance with the employment contract or other agreements, the amount of compensation may be prescribed.
The law also provides for monetary compensation to the employee. The amount of payments is determined by the amount of unearned earnings that the employee could have received if he had a document certifying his length of service.
The employer bears obligations not only in relation to employees, but also to the state, in accordance with Article 5.27 of the Code of Administrative Offenses.
For late delivery labor manager may receive a fine. The amount varies from thirty to fifty thousand Russian rubles.
Officials and heads of enterprises may be fined from one thousand to five thousand rubles. Individual entrepreneurs - over 5,000 Russian rubles. The company or enterprise must pay monetary compensation to the state treasury.
How can an employer compensate for moral damages for the delay in issuing a work book
Another effective method protection of their rights - to demand compensation for moral suffering. This term in labor law refers to violations of his personal non-property or property rights related to labor activity.
The amounts of payments and compensations, when the parties have not reached a common consensus, are established in court. The statute of limitations is set at three months.
It is during this period and no later that a former employee of the enterprise can go to court and receive monetary compensation. Human rights bodies take into account all the circumstances, the degree of guilt of the offender.
Administrative liability for refusal to issue documents
In addition to property damage former employee, the company may incur other obligations for an untimely issued document. The employer may be fined in accordance with the administrative code of the Russian Federation.
The sizes, according to the first part of Article 5.27.1 of the Code of Administrative Offenses in the Russian Federation, can be as follows:
- On individual entrepreneurs a fine in the amount of one thousand to five thousand rubles is imposed.
- For companies - from thirty to fifty thousand rubles.
- On officials- a warning or an amount from one thousand to five thousand.
In the case of repeated offenses, fines may be increased:
- for companies and enterprises - from fifty to seventy thousand rubles.
- for heads of organizations - from ten to twenty thousand rubles or suspension from work for a period of one or three years.
- for individual entrepreneurs - from ten to twenty thousand rubles.
To bring the employer to administrative responsibility, the employee should apply to the authorized bodies for labor and employment. According to article 5.27 of the Code of Administrative Offenses of the Russian Federation, they will help bring the violator to justice.
In cases where, at the request of a former employee of the company, Labour Inspectorate, employees will be required to check all the facts. Since most organizations are afraid to be involved in such situations and run into a fine, as a rule, the threat to involve the authorized bodies can help return the work book.
What to do and where to apply if the employee is not issued documents upon dismissal
If the employer refuses to return the documents necessary for further employment to the employee, you should try to find a compromise. In the event that it was not possible to resolve the conflict peacefully, it is possible to move on to tougher actions.
For such situations, there is a certain algorithm. This is the only way to protect your violated rights.
So, the procedure could be as follows:
Write an application to CEO companies with a request to issue a work book, in accordance with Article 80 of the Labor Code of the Russian Federation.
The application must indicate: the position, details of the organization, passport data, put the date of application and signature. The employer must understand that the employee is familiar with his rights and understand that he violates them. Write an application in two copies and send it to the secretary for approval. Then do not forget to pick up your copy with a mark of acceptance.
If they do not accept a written request, send a registered letter by mail. In this case, it is necessary to draw up an inventory in two copies.
In cases where the above actions did not help, you need to move on to more active actions and contact supervisory authorities on labor and employment, whose duties include dealing with such issues.
In addition, a former employee of the organization has the right to apply to the prosecution authorities. To do this, you should send a complaint and write a corresponding statement. The form of this appeal should be the same as a letter of notification to a company that refuses to return an employee's personal documents.
Well, the main course of action is to apply to the judiciary with a demand to issue a work book and recover money from its unlawful withholding. In this situation, it is necessary for labor issues.
Complaint for the recovery of compensation for the delay in the work book. The delay in issuing a work book upon dismissal is a violation of the law. In this case, it is necessary to apply to the court with an application for the recovery of wages in connection with the delay in issuing a work book. The delay in issuing a work book is a violation of Article 62 of the Labor Code of the Russian Federation, and on the basis of Art. 234 of the Labor Code of the Russian Federation, the employer does not allow you to work legally. As a result, on the basis of Art. 234 of the Labor Code of the Russian Federation, the employer is obliged to compensate for unreceived earnings in all cases of illegal deprivation of the opportunity to work. In my case, when they simply dynamized me with the issuance of a work book and did not make the final payment, I simply went to court with a claim for the recovery of wages and moral damage. How to prove non-pecuniary damage, we analyzed earlier.
If at that time I had paid attention to Article 234 of the Labor Code of the Russian Federation, I would certainly have asked the court to recover the unearned earnings.
Delay in the issuance of a work book
Upon dismissal of an employee (termination of an employment contract), all entries made in his work book during his work at this employer, are certified by the signature of the employer or the person responsible for maintaining work books, the seal of the employer and the signature of the employee himself. If the work book was filled out in the state language of the Russian Federation and in the state language of a republic within the Russian Federation, both texts are certified.
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. In the event of a delay in the issuance of a work book to an employee due to the fault of the employer, the inclusion in the work book of an incorrect or inconsistent with federal law wording of 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. An earlier entry on the day of dismissal is recognized as invalid in the manner prescribed by these Rules.
If on the day of the employee’s dismissal (termination of the employment contract) it is impossible to issue a work book due to the absence of the employee or his refusal to receive the work book in his hands, the employer sends the employee a notice about the need to appear for the work book or agree to send it by mail. Sending a work book by mail to the address indicated by the employee is allowed only with his consent. From the date of sending the said notification, the employer is released from liability for the delay in issuing a work book to the employee.
In the event of the death of an employee, the work book, after making an appropriate entry on the termination of the employment contract, is handed over to one of his relatives against receipt or sent by mail upon a written application from one of the relatives.
To court
Plaintiff: __________________
Address:__________________
Respondent:_______________
Address:__________________
I, _____________, worked in the organization ____________ from "__" ______ 20__ to "__" _________ 20__ in the position of ____________. By order N. ______ dated _____, I was dismissed from my position under Art. ____ of the Labor Code of the Russian Federation with "__" ________ 20__
In accordance with Article 62 of the Labor Code of the Russian Federation, upon termination of an employment contract, the employer is obliged to issue a work book to the employee on the day of dismissal. However, to date, I have not been issued a work book, despite my repeated requests.
According to Article 234 of the Labor Code of the Russian Federation, 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, including if the employer delays issuing a work book to the employee.
In connection with the foregoing and on the basis of Articles 62, 234 of the Labor Code of the Russian Federation, Art. 131-133 Code of Civil Procedure of the Russian Federation,
1. Collect from ______________ wages in the amount of __________ rubles. during the delay in issuing a work book from _________ to the day of its actual issuance.
Application:
1. Copy statement of claim the defendant.
2. Other available documents
"__" __________ 20__ ____________
(signature)
The applicant was absent from work due to being on annual paid leave. Having returned to work from vacation, the applicant turned to the employer with a request to pay him wages, to which he received an answer that wages would not be paid, and the employer demanded that the applicant write a letter of resignation of his own free will. The applicant proposes to pay wage arrears. Issue a workbook. Pay compensation for moral damage and legal fees.
To Limited Liability Company "____________"
_______________________________
gr. __________________________, residing in
address: _____________________________
"In the order of pre-trial
dispute resolution"
CLAIM
From ___________, I worked at __________ LLC as a manager on the basis of an employment contract No. ___ dated ________. According to clause 3.1 of the employment contract, the amount of my official salary was __________ rubles per month. What does not match the established minimum size wages in the territory of the city of __________ (the minimum wage for the city of __________ from _________ is ______ rubles).
In fact, my monthly income was ___________ rubles.
Since ___, I have been absent from work due to being on annual paid leave.
Having returned to work from vacation, I turned to you with a request to pay me wages for ____________, to which I received an answer that my wages would not be paid and you also demanded that I write a letter of resignation of my own free will.
I refused to write a letter of resignation of my own free will, to which you informed me that I had already been fired of my own free will, as confirmation, my work book was shown with a record of dismissal of my own free will.
"___" ____________, I came to you in order to receive unpaid wages, to receive a work book, but you did not give me a work book, did not make material calculations for the payment of wages, vacation pay.
I consider your actions to refuse to pay wages, issue a work book and pay vacation as unlawful and violate my legitimate interests for the following reasons.
In accordance with Article 2 of the Labor Code of the Russian Federation, one of the basic principles legal regulation employment relationship is the obligation of the parties to the employment contract to comply with the terms of the concluded contract, including the right of the employer to require employees to fulfill them job duties and careful attitude to the property of the employer and the right of employees to require the employer to comply with its obligations in relation to employees, labor legislation and other acts containing labor law norms; ensuring the right of workers to protect their dignity during the period of employment.
In accordance with Article 84.1 of the Labor Code of the Russian Federation, on the day the employment contract is terminated, the employer is obliged to issue a work book to the employee and make settlements with him in accordance with Article 140 of the Labor Code of the Russian Federation. At the written request of the employee, the employer is also obliged to provide him with duly certified copies of documents related to work.
I believe that your actions related to the failure to issue me a work book upon dismissal are a violation of my labor rights and legitimate interests. As a result of not issuing a work book to me, I was deprived of the opportunity to get a job and work in the period from __.__.______ to __.___.______.
In accordance with Article 234 of the Labor Code of the Russian Federation, the employer is obliged to compensate 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:
illegal removal of an employee from work, his dismissal or transfer to another job;
refusal of the employer to execute or untimely execution of the decision of the review body labor disputes 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 into the work book an incorrect or inconsistent wording of the reason for dismissal of an employee.
During the time during which I was deprived of the opportunity to work due to the fact that you did not give me a work book, I did not receive a salary.
Compensation for the delay in issuing a work book, according to the above calculation, is:
average monthly salary / average number of working days of the delay period * number of days of delay in issuing a work book = _____ rubles. /___ days * __ days = _________ rubles.
In accordance with Art. 21 of the Labor Code of the Russian Federation, the employee has the right to timely and full payment of wages and the provision of annual paid leave.
In accordance with Art. 22 of the Labor Code of the Russian Federation, the employer is obliged to pay in full the wages due to employees within the time limits established in accordance with the Labor Code, the collective agreement, the rules of the internal work schedule, labor contract.
Based on Art. 22 of the Labor Code of the Russian Federation, the employer is obliged to provide employees equal pay for work of equal value.
Based on Art. 11 of the Labor Code of the Russian Federation, all employers (individuals and legal entities, regardless of their organizational and legal forms and forms of ownership) in labor relations and other directly related relations with employees must be guided by the provisions of labor legislation and other acts containing labor law norms.
In accordance with Art. 136 of the Labor Code of the Russian Federation, when paying wages, the employer is obliged to notify each employee in writing of the components of the wages due to him for the relevant period, the amount and grounds for the deductions made, as well as the total amount of money payable.
Wages are paid at least every half a month on the day established by the internal labor regulations, collective agreement, labor contract.
According to Art. 140 of the Labor Code of the Russian Federation, upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment.
The amount of salary arrears is _________ rubles.
By virtue of Art. 236 of the Labor Code of the Russian Federation, if the employer violates the established deadline for paying wages, vacation pay, dismissal payments and other payments due to the employee, the employer is obliged to pay them with interest ( monetary compensation) in the amount of not less than one three hundredth of the current refinancing rate Central Bank the Russian Federation from the amounts not paid on time for each day of delay, starting from the next day after the due date of payment until the day of actual settlement, inclusive.
The interest for late payment of my wages will be:
for ____________ years, the interest for delayed wages is:
since ____________, the discount rate of refinancing is ____%, Instruction of the Central Bank of the Russian Federation No. ________ dated __________;
(_____: ___ x __ x __________): ____ = _________ rubles.
Total interest for delayed payment of wages will be: ________ (_______________________) rubles.
According to Art. 114 of the Labor Code of the Russian Federation, employees are provided annual leave with the preservation of the place of work (position) and average earnings.
According to Art. 115 of the Labor Code of the Russian Federation, the annual basic paid leave is granted to employees for a duration of 28 calendar days.
According to Art. 136 of the Labor Code of the Russian Federation, payment for vacation is made no later than three days before it starts.
Payment Arrears next vacation is _______ rubles.
As a result of your unlawful actions, I suffered moral harm, expressed in the fact that due to the unpaid settlement to me upon dismissal, I was extremely short of money, due to the delay in issuing a work book, I could not find a job, as a result of which I could not adequately support my family, and also forced to spend his time and money on defending my legal rights.
I estimate compensation for the moral damage caused to me at ________ rubles.
In accordance with Art. 237 of the Labor Code of the Russian Federation, moral damage caused to an employee by unlawful actions or inaction of the employer is compensated to the employee in cash in the amount determined by agreement of the parties to the employment contract.
My moral suffering is aggravated by the disrespectful attitude of the management of this organization towards its employees, who conscientiously fulfill their official duties.
In addition, in connection with the violation of my rights, I was forced to apply for legal assistance to ____________ LLC, to the cash desk of which a sum of money in the amount of ________ rubles was paid.
According to Art. 15 of the Civil Code of the Russian Federation, a person whose right has been violated may demand full compensation for the losses caused to him, unless the law or the contract provides for compensation for losses in a smaller amount.
Based on the foregoing, in accordance with Art. 2, 21, 22, 84.1, 114-115, 140, 136, 234, 236, 237 of the Labor Code of the Russian Federation,
OFFER:
1. Give me a work book.
2. Pay in my favor wage arrears in the amount of ___________ rubles.
3. To pay in my favor a penalty for delayed payment of wages for the period from __.__._____ to __.__.____ in the amount of ________ rubles.
4. Pay in my favor compensation for the delay in issuing a work book upon dismissal in the amount of _________ rubles.
5. Pay in my favor compensation for vacation in the amount of _________ rubles.
6. Pay in my favor to compensate for the moral damage caused to me cash in the amount of _____________ rubles.
7. To pay in my favor _______ rubles, as compensation for the legal services I paid for.
In accordance with Art. 362 of the Labor Code of the Russian Federation, heads and other officials of organizations, as well as employers - individuals guilty of violating labor legislation and other regulatory legal acts containing labor law norms, are liable in cases and in the manner established by the Labor Code and other federal laws.
Administrative responsibility for the payment of wages less than the minimum wage is established by Art. 5.27 of the Code of Administrative Offenses of the Russian Federation. The fine for officials is from 1,000 rubles to 5,000 rubles, for legal entities - from thirty thousand to fifty thousand rubles or an administrative suspension of activities for a period of up to ninety days.
According to Art. 145.1 of the Criminal Code of the Russian Federation non-payment of more than two months of wages, pensions, scholarships, allowances and other statutory payments made by the head of an organization, an employer - an individual out of selfish or other personal interest, -
shall be punishable by a fine in the amount up to 120 thousand roubles, or in the amount of the wage or salary, or any other income of the convicted person for a period up to one year, or by deprivation of the right to hold certain positions or engage in certain activities for up to five years, or imprisonment for up to two years.
If my requirements are not satisfied, I will be forced to apply to the competent authorities (the prosecutor's office, the State Labor Inspectorate, tax office…) for the protection of my rights and legitimate interests, as well as for bringing to justice those who violated my rights.
APPLICATION:
A copy of the employment contract.
"___" _________________ G. ________/______________/
