Please help me with advice - we don’t know what to do. Came to us to get a job new employee. They began to check his documents, and it turned out that he had not been fired from his previous job. Or rather, the young man has the work book in his hands, but there is no record of dismissal from the previous employer. We ask, how can this be? He says that there was a conflict situation - they didn’t want to let him go, so under the pretext that the work book was needed to obtain a foreign passport, he took it, and that’s all. Doesn't appear there anymore. It’s strange, of course, but anything can happen in life. He seems to be a good guy, and his work experience suits us, and he has a good education. In general, we want to hire him, but we’re not sure if we have the right to apply for a job? Still, the work book is not filled out according to all the rules...
It's a difficult situation, whatever you say. But we won’t consider moral and ethical aspects now: the decision whether to accept such a candidate for a job or not is up to you. Let's see whether the law allows the hiring of an employee who has not been dismissed from the previous employer to the main place of work.
Among the documents that, upon conclusion, employment contract the person applying for work presents it to the employer, and the work book is also listed ( Art. 65 Labor Code RF, hereinafter referred to as the Labor Code of the Russian Federation). There are three exceptions to this rule:
the person enters work for the first time;
the person is not going to work for the first time, but he does not have a work book due to its loss, damage or for another reason;
a person enters a job on a part-time basis.
IT IS FORBIDDEN!
Issue a work book kept by the employer to an employee other than upon his dismissal
Employment history is the main document about labor activity and the employee’s work experience ( Part 1 Art. 66 Labor Code of the Russian Federation). This document contains information about the employee, the work he performs, transfers to another permanent job and the dismissal of the employee, as well as the grounds for termination of the employment contract and information about awards for success in work.
At the same time, the Labor Code of the Russian Federation contains only the main characteristics of the work book. The form, procedure for their maintenance and storage are established by the Government of the Russian Federation.
Thus, the Decree of the Government of the Russian Federation dated April 16, 2003 No. 225 “On work books” approved the Rules for maintaining and storing work books, producing work book forms and providing them to employers (hereinafter referred to as the Rules). In accordance with paragraph 45 of the Rules, responsibility for organizing the work of maintaining, storing, recording and issuing work books and inserts in them rests with the employer.
By general rule, work books are kept by the employer and are issued to the employee only upon dismissal. This is indicated as the norms of the Code ( Part 4 Art. 841 of the Labor Code of the Russian Federation), and the norms of the Rules ( pp. 35-37).
Advise the candidate to contact his previous place of work to record the dismissal in the work book
Thus, the work book is accepted by the employer for safekeeping from the employee upon concluding an employment contract (or is issued to the employee by the employer for the first time or at the request of the employee). While the employee is working, the work book must be kept by the employer and, as necessary, filled out. The employer is obliged to issue a work book to the employee only on the day of termination of the employment contract.
At the same time, a corresponding entry is made in the work book about the basis and reason for termination of the employment contract ( Part 5 Art. 84 of the Labor Code of the Russian Federation), and all entries made in the employee’s work book during his work with this employer are certified by the signature of the employer or the person responsible for maintaining work books, the employer’s seal and the signature of the employee himself ( clause 35 of the Rules).
As you can see, the rules for maintaining work books are formulated in such a way that the absence in the work book of a record of dismissal from a previous place of work formally confirms that the employee’s employment relationship with this employer has not been terminated. The question of how the work book ended up in the hands of such an employee is, as they say, the tenth thing, and in your situation, it is indeed impossible to reliably establish all the reasons why this happened.
The main question is whether it is possible to hire an employee who, judging by the entries in his work book, has not been fired from his previous place of work (and vice versa, this moment, can’t prove it)?
We believe that in such a situation the provisions of Part 1 of Art. 60 and part 1 art. 282 of the Labor Code of the Russian Federation, according to which an employee can perform regular paid work for another employer only on the basis of external part-time work. That is It is possible to conclude an employment contract with your candidate, but it will be an employment contract for part-time work.
Summary
If the new employee’s work book does not contain a record of dismissal from his previous job, you can only hire him for part-time work.
If you want to hire him to your main place of work, ask the future employee to provide evidence that his employment relationship with his previous employer has been terminated.
Let us remind you that when applying for a part-time job, the employee does not present a work book (accordingly, it is not accepted by the employer for storage), and information about part-time work is entered into the work book at the request of the employee at the place of his main job on the basis of a document confirming the part-time job.
Of course, there is a possibility that your candidate is telling the truth - the employment relationship at the previous place of work actually ended, and the previous employer violated labor legislation when registering a dismissal, which is not the employee’s fault.
But you cannot be sure of this and take on the risk of responsibility for registering for the main job of an employee who does not have evidence of termination of the previous employment contract. Exactly the employee must provide you with properly executed documents. And only after this you can apply for a job as usual.
please tell me what to do in a difficult situation for me. An employee is hired who does not have a notice of dismissal in her work book. She said that the individual entrepreneur she worked for died suddenly. Since he conducted all the affairs personally, no one is authorized to make entries in the labor record. The employee also presented a notarized copy of the death certificate of her former employer and an extract from the Unified State Register of Legal Entities for him, which indicates the stoppage of activities due to death and the date. Can I make an entry about the dismissal in her work book based on the documents presented? If so, what is the date of dismissal and who should sign instead of the former manager? Whose seal should be used to certify the dismissal and what should this record generally look like? Thank you very much!
Answer
Answer to 1 question: Can I make a note of dismissal in her work book based on the documents presented?
Yes, you can make an entry in the employee’s work book about dismissal from their previous place of work on the basis of the death certificate of the individual entrepreneur.
Don't miss: the main material of the month from leading specialists of the Ministry of Labor and Rostrud
Encyclopedia on registration of turnkey work books from the Personnel System.
Answer to question 2: If yes, what is the date of dismissal, and who should sign instead of the former manager?
It will be useful for you to know about correcting the date in the work book in the material at the link.
The date of dismissal will be the date of death of the individual entrepreneur indicated on the death certificate. There is no need to sign this entry.
Answer to question 3: Whose seal should be used to certify the dismissal, and what should this record generally look like?
There is no need to certify the record with a seal.
To make a record of dismissal from an individual entrepreneur new employer has the right to use the rule on the procedure for correcting incorrect or inaccurate entries made by the employing organization in the event of its liquidation, by analogy with the law (Rules approved). The new employer has the right to make a record of dismissal from the previous place of employment on the basis of the relevant document - in this case, the death certificate of the individual entrepreneur.
To do this, the new employer needs:
- make a record of hiring an employee to work in your organization in general procedure;
- make a record of dismissal from an individual entrepreneur due to the death of the employer - individual() and refer to the death certificate.
Details in the materials of the Personnel System:
1. Answer: What to do if there is no record of dismissal in the employee’s work book. According to the employee, the previous employer was liquidated
Nina Kovyazina, Deputy Director of the Department medical education And personnel policy in healthcare of the Russian Ministry of Health
The legislation does not contain a clear answer to this question.
The current labor legislation does not contain a procedure for making a missing entry in an employee’s work book in the event of liquidation of the organization that was supposed to record the dismissal. In this regard, the new employer has the right to use the rule on the procedure for correcting incorrect or inaccurate entries made by the employing organization in the event of its liquidation, by analogy with the law (Rules approved). The new employer has the right to make a record of dismissal from the previous place of work on the basis of the relevant document - an order (instruction) of the employee's former employer or a copy thereof.* In the event of liquidation of the organization - the former employer, such information can be obtained in the archive. In this case, the new employer must assist the employee in obtaining documents confirming the dismissal. This conclusion follows from the Rules approved by , Instructions approved by , Rules approved by .
In the absence of relevant documents and the impossibility of obtaining them (including by going to the archive), the employer has no grounds for making a corresponding entry in the work book.
In this case, the employee has the right to apply to the court to establish the fact of dismissal from his previous place of work (). The court decision, which established the relevant fact, is also the basis for the new employer to make an entry in the employee’s work book about the termination of the employment contract at the previous place of work ().
Before the fact of dismissal from the previous employer is confirmed (by an archival certificate or a court decision), in order to avoid disputes and double the employee’s length of service, an employee can be hired under a part-time job or under a civil law contract.
2. Answer: How to make changes and corrections to the work book
Correction of information about work, awards
Who should correct an incorrect entry about work or awards in an employee’s work book?
If you find an incorrect or inaccurate entry in the sections of an employee’s work book, it needs to be corrected. Corrections can be made in two ways. The first is that the employee independently contacts the organization that made an error in the work book, and there it is corrected in the prescribed manner. The second method is that the organization where the employee currently works sends a request to the previous employer and, based on his official response, makes corrections to the work book.
Corrections can be made to an employee’s work book at a new place of work on the basis of copies of orders for hiring, transfer and dismissal, the cancellation of these orders, as well as certificates and extracts from documents in which these orders are mentioned (personal card, personal account, book registration of orders, etc.).
If an organization that made an incorrect or inaccurate entry in the work book was reorganized, an entry about the correction is made by its legal successor. If the organization was liquidated, such corrections must be made at the new place of work. If an incorrect or inaccurate entry in the work book was made by an entrepreneur who ceased his activities, corrections must also be made at the new place of work. Corrections can be made to an employee’s work book at a new place of work on the basis of copies of orders for hiring, transfer and dismissal, the cancellation of these orders, as well as certificates and extracts from documents that mention these orders (personal card, order registration book and etc.). This is stated in the Rules approved.
In the sections of the work book “Information about work” and “Information about awards” nothing should be crossed out, cleaned up or covered with correction fluid. All incorrect entries must be invalidated in accordance with the established procedure.
This is stated in the Instructions approved.
Procedure for correcting incorrect information
You won't have any questions about resignation letter of one's own free will after reading the article at the link.
How to correct an incorrect (inaccurate) entry about work or awards in an employee’s work book
Correct an incorrect or inaccurate entry in an employee’s work book in the following order. In column 1, enter the serial number following the last entry. In column 2, enter the date the entry was made, and in column 3, indicate: “The entry with number such and such is invalid.” Then write the correct entry. In column 4, repeat the number of the order on the basis of which the entry was incorrectly made in the work book. If the order itself was issued with an error and then canceled, then in column 4 indicate the date and number of the order that canceled it. If the entry in the work book is correct, but the details of the order are indicated incorrectly, reproduce the entry without changes, and in column 4 indicate the correct details.
Using this scheme, correct all inaccurate or incorrect entries: about hiring, transfer, dismissal, awards (including the entry about transfer or dismissal, if these actions are recognized by the court, labor inspectorate or the organization itself as illegal).
Question from practice: how to make an entry in the work book that was missed by the previous employer
The current legislation does not contain a clear answer to this question.
At the same time, the provisions of paragraphs of the Rules approved by , contain the procedure for correcting an incorrect or inaccurate entry at the place of work where the corresponding entry was made, or by the employer at a new place of work. Considering that the rights of the employee should not be infringed, we believe that the employer at the new place of work has the right to correct any inaccuracies in the work book regarding work with the previous employer, including missing information, if there are documents on the basis of which clarification can be made.
Thus, in the process of working for a new employer, you can add to the section
The employee’s work book contains a record of hiring, but there is no record of dismissal. At the same time, the work book already contains a record of the employee’s hiring for another job and it is impossible to make a record of dismissal from the previous place of work. How to confirm the fact of dismissal from a previous job?
Answer
The procedure for making missing entries in an employee’s work book is not regulated by law. However, neither the Labor Code of the Russian Federation, nor the Rules for maintaining work books, nor the Instructions for filling out work books contain a requirement to enter information about work in chronological order, therefore, if there are grounds for making a missing entry, we believe that the employer has the right to make such an entry under a serial number , following the number of the last available entry in the work book.
The basis for making entries in the work book about the termination of an employment contract are precisely the relevant orders (instructions) of the employer (clause 5.1 of the Instructions, clause 10 of the Rules). Accordingly, it is the dismissal order that will serve as documentary evidence of the employee’s dismissal from his previous place of work.
Since you are the employer who did not record the dismissal on time, we believe that it is possible to make this record, while observing the numbering and date of the record, with reference to the dismissal order. In this case, the order must be dated by the actual date of dismissal.
Additionally, we note that such an entry will not be illegal and a work book with such an entry cannot be invalidated.
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Our editorial office receives many questions from accountants regarding the preparation of work books. For example, is it necessary to make an entry in the work book if the dismissal from the previous job has not been formalized? The enterprise was liquidated, and no entries were made in the work books of the employees. What to do in such a situation?
When filling out work books, you need to be guided by:
- Rules for maintaining and storing work books, approved by Decree of the Government of the Russian Federation dated April 16, 2003 No. 225 (hereinafter referred to as the Rules);
- Instructions for filling out work books, approved by Decree of the Ministry of Labor of the Russian Federation dated October 10, 2003 No. 69.
But these documents do not establish a specific procedure for making missing entries in the employee’s work book.
At the same time, the employer has the right to make corrective and clarifying entries, including those that were not made at the previous job. This conclusion can be drawn from paragraph 28 of the Rules. But the missed entry about dismissal is entered into the work book on the basis of a document submitted by the employee confirming the fact of termination labor relations from companies that have been liquidated. For example, an order to terminate an employment contract (clause 5.1 of the Instructions, clause 10 of the Rules). If the employee does not have a copy of the document, you can contact the archive (Part 10, Article 23 and Article 24 Federal Law dated October 22, 2004 No. 125-FZ).
Column 1 of the work book indicates the serial number of the entry.
In column 2 - the date the entry was made.
In column 3 - “dismissed from the Company with limited liability"Alpha" (Alpha LLC) in connection with the liquidation of the organization, paragraph 1 of part one of Article 81 of the Labor Code of the Russian Federation."
As a general rule, if the organization that made an incorrect or inaccurate entry is liquidated, the correction is made by the employer at the new place of work on the basis of relevant documents (for example, a copy of the dismissal order).
When dismissing an employee, all entries made in his work book during his time working for this employer must be certified by the signature of the person responsible for maintaining work books, the seal of the employer and the signature of the employee himself. But it may also happen that the entries in the employee’s work book, made by the last employer are not certified by a seal. And by the time the employee goes to work for another employer, this employer has already been liquidated and excluded from the Unified State Register of Legal Entities. Can a new employer correct the absence of the previous employer's seal in the work book? The deputy head of Rostrud, Ivan Ivanovich Shklovets, answered this question: “If an employee has documents confirming his hiring and dismissal, the new employer has the right to make corrections to the work book. However, the absence of a seal that certifies the records of the previous employer cannot be corrected. One of the possible options in this situation is to issue a new work book upon a written application from the person applying for work, indicating the reason for the need to issue a work book.Keep in mind that a new employer has the right to hire such a person to his main job only if he has documents confirming his dismissal from his previous job (for example, a copy of the dismissal order). Otherwise, he can only hire him part-time.In addition, if the work book does not contain the seal of the previous employer, it is considered improperly executed, therefore, when calculating insurance period To pay for sick leave, the employer will have to use other documents (the same copy of the dismissal order).In the future, the employee may have problems with the employment service (which may not count these periods during the period of paid work for calculating unemployment benefits), as well as with the Pension Fund of the Russian Federation when assigning a labor pension.” Let's summarize: if the employee has a copy of the dismissal order in his hands, then making an entry about hiring in his work book if there is no seal of the previous employer in it is not fraught with anything serious for either you or the employee. Just remember to attach a copy of the dismissal order to the employee’s personal file. You will need it: to confirm the correctness of calculation of the employee’s insurance experience for the calculation of social insurance benefits; for the employee - to confirm the length of service for benefits and subsequently to assign a pension. If the new employee does not have any documents confirming his dismissal from his previous place of work, and you hire him for the main job, then it is better to get him a new work book at his request. After all, during an inspection, the labor inspectorate may consider that you illegally hired an employee for your main job and fine you for violating labor laws.
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