Неделя кадровых решений
сообщества «АПРИОРИ | юридическая служба»
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Ирина из города Ростова-на-Дону
по бесплатному телефонному номеру 8 800 201 28 63
«Здравствуйте!
Я до нового года уволилась от индивидуального предпринимателя
(магазин). В день увольнения он мне не предоставил трудовую книжку, но я
всё-таки на работу больше к нему не выходила. Кроме того, мне не
направлялось уведомление с просьбой забрать трудовую книжку или дать
согласие на отправку. В начале февраля, спустя почти два месяца, я по
почте трудовую получила. Решила обратиться в суд за компенсацией, но мой
бывший работодатель в ответе на претензию заявил, что ничего платить не
должен. А я из-за отсутствия трудовой книжки всё это время не могла
устроиться на новую работу. Подскажите, как мне быть в этой ситуации?»
Добрый день, Ирина!
Ваш вопрос не однозначен, но попытаемся разобраться и дать некоторые советы.
То, что Вы обратились в суд – верное и однозначно правильное решение!
Однако
в судах есть разное понимание при решении трудового спора: одни суды в
схожих вопросах поддерживают работника, другие – работодателя.
Мы излагаем нашу точку зрения на описанную Вами проблему.
По
нашему мнению, работодатель не прав. Кроме того, совершил
административное правонарушение при несоблюдении законной процедуры
увольнения.
В этом случае организация (индивидуальный
предприниматель) обязаны возместить неполученный заработок, оплатить
работнику в любом случае вынужденный прогул и материальное возмещение
морального вреда. А если бывший работник настаивает, то и восстановить
его на работе в той же должности и на тех же условиях заключённого ранее
трудового договора.
В Вашем случае представляется спорным довод о том, что из-за отсутствия трудовой книжки Вы не смогли трудоустроиться.
Дело
в том, что в силу закона, отсутствие трудовой книжки само по себе
мешает уволенному трудоустроиться. Таким образом, мы бы не советовали
выставлять этот аргумент в качестве главенствующего.
Если же Вы
намерены в суде настаивать на данном факте, то Вам необходимо заручиться
неопровержимыми доказательствами того, что Вас не принимали на работу
именно из-за отсутствия необходимого документа в виде трудовой книжки.
Попутно
напомним, что теперь работник и вовсе вправе отказаться от трудовой
книжки. В таком случае работодатель будет отвечать только за то, что не
предоставил работнику в день увольнения сведения о его трудовой
деятельности.
Желаем удачи и меньше проблем с законом!
Остались вопросы? Возникли новые вопросы?
Бесплатный звонок по России: 8 800 201 28 63
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info@rdapriori.ru
www.rdapriori.ru
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