25.09.2019
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4 min.
Notification of receipt of the work book is sent by the employer to the dismissed employee if he himself has not expressed a desire to appear for it immediately after full payment. The personnel service with all records must issue this document within 3 days after the person is released from work duties. Violation of the established procedure may result in administrative liability.
What does the legislation say about the delay in issuing labor documents?
According to Art. 84.1 of the Labor Code of the Russian Federation, the head of the company not only does not have the right to withhold the employee’s work book, but is also responsible for this. Delay in issuing a document upon dismissal is regarded as an administrative offense. In this case, the employer will have to answer taking into account paragraph 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation and pay a fine of up to 50,000 rubles. In addition, the company may be required to compensate the employee for material damage based on Article 234 of the Labor Code of the Russian Federation. This does not mean that we necessarily send notice of the work record on the day of dismissal, but we do not recommend delaying the resolution of this issue for several weeks or months.
Employer action algorithm
To protect themselves, HR specialists need to know how to act in different situations.
If an employee appears on the last working day and receives documents, the fact of their timely delivery is recorded in the work record book and personal card.
If the employee does not come for the document, the personnel officer documents this fact and puts a mark on the time sheet. After this, the citizen should be notified of receipt of the work book in connection with the dismissal in person or offered to agree to have it sent by mail.
In the rules for maintaining and storing work books, approved. By Decree of the Government of the Russian Federation dated April 16, 2003 No. 225, there is no clear information about which address to send the notification to. Most often, the letter is sent to the address indicated in his personal card. But if the employer has other addresses provided by the employee, the notification is sent to all available addresses where the citizen may reside. This indicates that the manager has taken all possible measures to transfer the documents.
If the resigned employee ignored the notice to appear for the work book and did not respond with written consent to send it by mail, then the document is stored in the personnel department of the enterprise in a specially designated safe until it is issued to the employee. The established shelf life is 75 years.
IMPORTANT!
If you did not send a letter to the employee about receiving a work book upon dismissal or did not receive written consent to send it by mail, sending papers is a violation of Art. 84.1 Labor Code of the Russian Federation.
If a person agrees to be sent by Russian Post, a registered letter is issued with a list of the contents and a notification of delivery. And you should not save on such additional services as an inventory of the attachment and notification of delivery of the item. Judicial practice shows that this will help prove the employer's fulfillment of his duties. A specific example is the appeal ruling of the Sverdlovsk Regional Court dated 09/07/2018 in case No. 33-15689/2018. From the case materials it follows that the employee asked to send him documents related to his work activities by mail. When the letter arrived, there was nothing in the envelope. On this basis, the employee went to court and demanded compensation. The employer had to pay: the court was provided with a receipt for sending the letter, but there was no evidence that it contained the former employee’s work book, since an inventory of the attachment was not compiled when sending.
What is a notice of termination?
This document is a letter addressed to an employee of the organization. It must contain information about the reasons for termination of the employment relationship, the procedure for compensating unused vacation days and other nuances. The notice of dismissal of an employee must be handed over to an employee of the human resources department or the person responsible for personnel records management. The document must be registered in the notification log.
The notice must be given to the employee personally. He must put his signature and date on it, thereby confirming the fact of familiarization with the document. If for some reason the employer is unable to deliver the document to the employee in person, he can send it by registered mail with notification. The recipient's signature in the notification will further serve as confirmation of receipt and familiarization with the registered letter.
A situation may arise when an employee refuses to sign a document. In this case, the employer must draw up a notice of refusal. It must be signed by the person serving the notice of dismissal and by any witnesses.
An employee is not recommended to refuse to serve a notice, as it can become important evidence in legal disputes with the employer. It can be used to protect labor rights by assessing the employer’s actions for compliance with the labor legislation of the Russian Federation. A sample notice of dismissal will be presented below.
Arbitrage practice
Judicial practice in this area is contradictory. According to the Appeal ruling of the Supreme Court of the Republic of Mari El dated July 24, 2018 in case No. 33-1207/2018, an employee can claim compensation only if he proves that:
- tried to find a job without a book;
- potential employers refused him due to the lack of a document on work experience.
Similar conclusions are contained in the Appeal Ruling of the Voronezh Regional Court dated 02/08/2018 in case No. 33-988/2018, the Appeal Ruling of the St. Petersburg City Court dated 04/04/2017 No. 33-6200/2017 in case No. 2-4428/2016, the Appeal determination of the Nizhny Novgorod Regional Court dated 02/06/2018 in case No. 33-771/2018, other decisions.
But there is another position. For example, in the Appeal ruling of the Sverdlovsk Regional Court dated November 9, 2017 in case No. 33-19615/2017, it is stated that failure to issue a book in a timely manner is a circumstance that deprives an employee of the opportunity to find a job. And no other evidence, including notification of receipt of the work book by mail and a response to it, is required to receive compensation for the delay of the document. This approach is in the Appeal ruling of the Supreme Court of the Republic of Bashkortostan dated September 27, 2016 in case No. 33-19280/2016, the Appeal ruling of the Samara Regional Court dated March 15, 2016 in case No. 33-2471/2016, and other decisions.
How to receive it by mail?
Application for forwarding
application must be written in advance , which is submitted by the employee to the personnel department. The application is drawn up in any form.
In its text, it must contain the name of the organization, as well as contact information about the organization and the employer. It is also worth remembering that the application contains information about the employee. This is done so that if problems arise with the shipment, you can immediately contact the employee.
Application form
In the application, the employee formulates a request according to which on a certain date the employer must send him a work book by letter to the specified address.
The application must be clearly formulated and written, either by hand in neat and legible handwriting, or on the computer in a standard font.
How to write?
The application must be written in any form , but if the organization’s local regulations provide for the possibility of drawing up such an application according to the appropriate sample, you must contact the organization’s personnel department and do everything in accordance with their requirements.
This application is accepted by the HR department and, if agreed, a copy is made of the application, and the employer’s seal and signature are also affixed.
Sample application for sending a work book by mail.
The document was returned to the employer: to store it or not to store it
Let’s say an employee received a notification that a work book was sent by mail and agreed to the employer’s offer, but for some reason was unable to pick up the documents from the post office. They return back to the employer. If this situation happens in your organization, will you keep the papers?
And the employer from Bashkiria first took the documents of the former employee and then lost them.
After some time, the ex-employee appeared and began to demand either a document or a duplicate. He also went to court with a claim for payment of moral damages and recovery of the average monthly salary for the days of forced absence.
The Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Bashkortostan stated: after the employer sent a notice - a letter to the employee about the need to pick up the work book - and received consent to send it by mail, he is not responsible for the documents. The judges did not satisfy the demand to pay lost wages due to the fact that the ex-subordinate did not take a document from the department. And compensation for moral damage was supported, although the amount was reduced by 20 times compared to the claim (see Appeal ruling dated June 27, 2019 in case No. 33-12901/2020).
As a result, the employer paid the former employee moral damages (5,000 rubles), paid the costs of a representative (7,000 rubles) and spent on paying state fees for considering claims. And if I had kept the documents of the former employee, I would not have incurred any additional expenses.
Letter to bailiffs about the dismissal of an employee, sample
Since no unified form is established by law, it can be drawn up in free form. In this case, the notification should indicate:
- about the fact of dismissal of the debtor employee, indicating the grounds (at his own request, at the initiative of the employer, by agreement of the parties, etc.);
- details of the writ of execution;
- the period during which the contributions were made;
- debt and its reasons (if any);
- list of applications. The notice should be accompanied by a writ of execution noting the amounts transferred and a copy of the dismissal order;
- additional information about the debtor: place of residence, place of new work, etc. (if the organization has such information).
The message is signed by the chief accountant and general director, and if there is a seal of the organization, its imprint is affixed.
Copies of all documents handed over to the dismissed employee and bailiffs should be kept in the organization’s archives in case of verification of compliance with the law when transferring alimony or other debts.
Labor document of a foreign citizen: send by mail or not
The rules for issuing a work book upon dismissal, approved by law, require that the book be given to the employee for signature on the last working day. If a person does not come for the document himself, the employer prepares a notice of the need to obtain it and at the same time offers to send it by mail. With the consent of the owner, the papers are sent by valuable mail. But if the employee lives outside the country, does he need to send them by mail?
The Ministry of Labor and Social Protection of the Russian Federation believes that this is not only not necessary, but also prohibited by law. In a letter dated September 17, 2019 No. 19-1/OOG-210, officials recalled that there is now a procedure for the export, transfer and request of personal documents of Soviet and foreign citizens and stateless persons from the USSR abroad, which was approved by USSR Law No. dated June 24, 1991 2261-1. It follows from it that neither work books, nor military ID cards, nor identity cards can be sent abroad. In this case, the employer has the right to refuse to send documents about the length of service to the resigned foreign employee, but must keep them “until required”.
The procedure for issuing a work book upon dismissal
The work book refers to official documents of strict accountability. During the implementation of activities, she is located in the personnel department. A document can be missing only as a result of damage or loss, as well as during initial employment. The employer himself issues a new one, or you can get a duplicate from the company where the person previously worked for 15 days. To do this you will need to write an application. This must be done no later than 5 days after hiring.
Filling out, issuing and storing a work book is carried out in compliance with the rules and regulations established by law. The main standards are:
- Labor Code of the Russian Federation;
- Government Decree “On work books”;
- Resolution of the State Statistics Committee No. 1 of 05.05.2001;
- Rules approved by Decree of the Government of the Russian Federation No. 225 of April 16, 2003;
- Instructions of the Ministry of Labor dated 2003.
After dismissal, the employee must receive a work book, salary and necessary certificates on the last working day. In confirmation, he signs in a special journal. If a citizen refuses to do this, an act is drawn up in which three witnesses sign, thereby recording this fact.
Upon dismissal, the employer makes a corresponding note in the document, guided by the above provisions, and gives it personally to the employee. It is unacceptable to transfer labor documents through third parties if they do not have a notarized power of attorney.
It is important to know! If a person does not come to receive it on the appointed day, a notification is sent to his address about the need to appear for a work book.
