Delay in Issuing Employment Record Book: The Appellate Court Explained What the Employee Must Prove to Recover Average Earnings

The Rivne Appellate Court considered a case concerning the recovery of average earnings for the delay in issuing an employment record book. The court noted that an employee must prove not only the non-issuance of the book but also the employer's fault and the impossibility of receiving it on the day of dismissal.

Circumstances of the Case and Positions of the Parties

The appellate court reviewed a lower court's decision that had denied the plaintiff's claim against a municipal institution. The plaintiff sought to compel the institution to issue a properly executed employment record book and to recover average earnings for a period of forced absence.

The appellant requested that the contested decision be cancelled and replaced with a new one that would satisfy their claims.

However, the panel of judges rejected the appellant's claims after considering the case's circumstances.

Case materials revealed that the plaintiff had been appointed head of a branch at the municipal institution, on a full-time basis according to the staffing schedule, under a fixed-term contract for one year.

Upon expiration of the employment contract, the plaintiff was dismissed based on paragraph 2 of Article 36 of the Labour Code of Ukraine (hereinafter - LC of Ukraine).

The employer had informed the plaintiff in advance by letter about the contract's expiration and dismissal, paid all necessary amounts upon dismissal, and requested that the plaintiff contact the municipal institution to receive their documents.

Why the Appellate Court Denied the Complaint

The appellate court upheld the lower court's decision as lawful and justified. It noted that the local court, in denying the claim, had considered the norms of current legislation, specifically paragraph 2 of part 1 of Article 36 of the LC of Ukraine, which states that the expiration of a contract's term is a ground for termination of an employment contract.

Part 1 of Article 47 of the LC of Ukraine stipulates that the owner or authorised body is obliged to issue the employee a properly executed employment record book and settle accounts with them on the day of dismissal, within the terms specified in Article 116 of this Code.

According to part 5 of Article 235 of the LC of Ukraine, if there is a delay in issuing the employment record book due to the fault of the owner or authorised body, the employee is to be paid average earnings for the entire period of forced absence.

Therefore, an employer's liability for a delay in issuing an employment record book arises when the cumulative circumstances specified in part 5 of Article 235 of the LC of Ukraine are present.

The appellate court established that on the day of the plaintiff's dismissal, the plaintiff refused to sign the dismissal order. Consequently, the defendant drew up an Act documenting the employee's refusal to sign the dismissal order.

Furthermore, the plaintiff confirmed in the local court that they had received the employment record book.

The circumstances established in this case (№ 568/1352/25) indicate an absence of intentional culpable actions or inactions by the employer in delaying the issuance of the employment record book, within the meaning of part 5 of Article 235 of the LC of Ukraine.

According to the Supreme Court's legal position, expressed in its ruling of 29 May 2023, in case № 754/8852/20 (proceeding № 61-3300св23), an employee's right to receive their employment record book on the day of dismissal is contingent not only on the employer's obligation to issue it but also on the employee's obligation to collect it, provided the employer has created all conditions for its timely issuance.

Assessing the actions of both parties and considering the balance of rights and obligations of both the employee and the employer, the Rivne Appellate Court concluded that the plaintiff did not prove he was deprived of the opportunity to receive the employment record book on the day of dismissal.

Therefore, the employee's failure to exercise the right to receive the employment record book on the day of dismissal, and the lack of evidence of the employer's fault in failing to fulfil the obligation to issue it, preclude holding the employer liable to pay the employee average earnings for the period of forced absence.

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