The new head of the municipal institution was a little confused when accepting the case: he found that the employment record of the dismissed employee remained in the personnel department. What is the right thing for an employer to do – send it by mail, give it to relatives or pass it on through acquaintances? He asked the State Labor Service to explain what to do in this situation. Here is an algorithm of actions proposed by its representatives.
General procedure
The responsibility for the organization of accounting, storage and issuance of employment records rests with the head of the enterprise, institution, organization, representative office of a foreign entity in accordance with item 4 of Resolution of the Cabinet of Ministers of Ukraine “On employment records of employees” No. 301 of April 27, 1993 (hereinafter – Resolution No. 301).
According to item 3 of Resolution No. 301, employment records must be stored at enterprises, institutions and organizations, representative offices of foreign entities, and in case of dismissal of the employee, the employment record is issued to such an employee against a receipt in the register.
On the day of dismissal of the employee, the company is obliged to make a full settlement such an employee and issue an employment record book with a record of dismissal against a receipt in the register (Article 47 of the Labor Code of Ukraine, hereinafter – the Labor Code); Resolution No. 301, item 4.1 of the Instruction on the procedure for keeping employment records of employees, approved by Order of the Ministry of Labor of Ukraine, the Ministry of Justice of Ukraine and the Ministry of Social Protection of Ukraine No. 58 of July 29, 1993, hereinafter –Instruction No. 58).
Therefore, the head must to find out the reasons why the employee’s employment record remained at the company after the dismissal.
Reasons for not issuing employment record book and options for resolving situations
The employee was absent on the day of dismissal.
In this case, the owner or authorized body on the day of dismissal sends a mail with an indication of the need to obtain an employment record book. Sending the employment record book by mail with delivery to the specified address is allowed only with the written consent of the employee. The employment record book itself cannot be sent by mail without the written consent of the employee.
It is desirable to send the message by registered mail with a note about the delivery of the shipment to the employee with a description of the attachment. Under such conditions, in the event of a labor dispute, the employer will have additional evidence that he/she is not at fault for delaying the issuance of the employment record to the employee.
You can ask the employee to give the consent to send the employment record book by mail, indicating the postal address to which to send the employment record book. Having received from the employee such consent with the indication of the address, the employer, being guided by item 4.2 of Instruction No. 58, sends to the employee the record book to the specified address.
The employee was granted leave with subsequent dismissal. The employee did not come to the enterprise on the day of the dismissal.
The algorithm is similar to that described above.
The employee did not receive the employment record book on the day of dismissal due to absence from work for certain reasons and submitted an application to issue the employment record to relatives.
In this case, the employee must issue a power of attorney to obtain the employment record through relatives. It is possible to issue the employment record book against a receipt to close relatives (without a power of attorney) only in the event of the employee’s death (item 4.3 of Instruction No. 58).
The employer failed to hand over the employment record book to the dismissed employee
In this case, the rules of item 6.2 of the Instruction No. 58 should be followed. According to this norm, employment records and their duplicates that were not received by employees at the time of dismissal are stored for two years in the institution separately from other employment records of employees. After this period, unclaimed employment records (their duplicates) are stored in the archive for 50 years, and after this period they can be destroyed in the prescribed manner.
Responsibility for late issuance of employment record book
In addition to the obligation to issue an employment record book to an employee on the day of dismissal, the law provides for liability for late issuance of an employment record book at the time of dismissal. For violation of the established procedure for keeping, accounting, storage and issuance of employment records, officials bear disciplinary and, in cases provided by law, other liability (item 4 of Resolution No. 301).
If the delay in the issuance of the employment record occurred due to the fault of the employer, then the employee must be paid the average salary for the entire period of forced absence (Art. 235 of the Labor Code, item 4.1 of Instructions No 58).
In this case, the day of dismissal will be the day of issuance of the employment record book. An order must be issued on the new day of dismissal and an entry must be made in the employee’s employment record book. The previously made record of the day of dismissal is declared invalid in accordance with the procedure established by item 2.10 of Instruction No. 58.
