The employment book is not only an important document certifying the activity of a citizen, but also a key element for calculating pension payments. Her records are used to determine seniority, qualifications and other important aspects that affect the size of the pension. However, in practice, it is not uncommon for work books to contain errors that can seriously complicate the process of issuing a pension. Incorrect records, inaccuracies in the information or lack thereof can lead to delays or refusals in the appointment of pension benefits.
These errors can occur for a variety of reasons, from careless record keeping to human error in data entry. In particular, this may be due to incorrect indication of the period of employment, errors in the name of organizations, or incorrect records of positions and salaries. Such inaccuracies can significantly affect the calculation of the amount of the pension, which, in turn, leads to financial difficulties and social problems for the person retiring.
Lawyers of the “Repeshko and Partners” Bar Association commented on the main problems related to work books, error correction procedures, and also provided practical recommendations for those who face these difficulties.
In addition to the passport, the entire life of a citizen of Ukraine is accompanied by another document – the employment book. Its importance cannot be overestimated, because what everyone will count on when retirement comes depends on its presence and its proper execution. Regarding receiving and assigning a pension, there are many nuances that depend on who, where and when a person worked. But the first thing that is asked about when applying to the Pension Fund for the appointment of a pension is the employment book.
But this is where citizens face difficulties. Usually, those who retire now are more than sixty years old, and therefore part of their life was spent in Soviet times. In connection with this and the efforts of the authorities at that time to unify document circulation with the dominance of the Russian language, many documents of citizens were filled out and written out in Russian. This would be possible and not very scary, if in the future, when Ukraine gained independence, they did not start translating the names, surnames and patronymics of citizens, and in the early nineties this happened “as God wills”.
In the future, when replacing the passport, the spelling was preserved, but the same surname had different variants of the inscription for different people, depending on its length and complexity. At the same time, some citizens had the same work book in the personnel department of the enterprise for twenty or thirty years, and the main thing that bothered them was that the enterprise was working and the work book contained a corresponding record of work at it.
Another side of the same issue is women. When getting married, a woman usually changes her last name to her husband’s and changes her passport accordingly. In the work book, an entry is made about the change of surname, but sometimes it looks like the previous surname is crossed out and a new one is written next to it, and then another new one is written next to it. This is how life goes on, until upon retirement, citizens visit the Pension Fund, where they are shocked by the “happy” news that they cannot confirm the length of service for the appointment of a pension, since their passport data do not match the personal data specified in the employment book and recommend go to court.
At the same time, the first thing that a person who finds himself in this situation needs to do is to receive a written refusal from the Pension Fund with a reference to the fact that it is not possible to count the seniority for the purpose of pension. Without this written conversation, no court will consider the case, and if it does, it will refuse to grant the application and you will only waste time.
Therefore, the refusal of the Pension Fund has been received. In the passport, for example, the person is listed as “Sergienko”, in the employment book as “Sergienko” – what to do next? And then it is necessary to apply to the court in a separate proceeding and establish the legal fact that the employment book written in the name “Sergeyenko” really belongs to “Sergeyenko”. Or “Sydorenko”, who was “Kovalenko” in her maiden name, and also “Petrenko” by previous marriage.
Here is a demonstrative example – a real citizen who was given a decision of the Pension Fund to refuse to grant a pension No. 1234567890, because the insurance experience is 2 years and 15 days. The pension fund did not take into account when calculating the length of service the employment book series YYU-I No. 123456 dated September 7, 1978, because the patronymic of the owner of the employment book on the title page is indicated as “Hennadiyevich”, which does not correspond to the passport data of the applicant – “Hennadiyovich”.
According to Art. 62 of the Law of Ukraine “On pension provision”, the main document confirming work experience is the work book. The procedure for confirming the existing work experience in the absence of a work book or relevant entries in it is established by the Cabinet of Ministers of Ukraine. In the absence of a work book or relevant entries in it, work experience is established on the basis of other documents issued by the place of work, service, training, as well as archival institutions.
According to clause 2.2. Instructions on the procedure for keeping work books from 1993 include information about the employee in the work book: surname, first name and patronymic, date of birth; information about work, transfer to another permanent job, dismissal.
According to Clause 2.11 and Clause 2.12 of the Instructions, information about the employee is recorded on the first page (cover page) of the work book. Surname, first name and patronymic (in full, without shortening or replacing the name and patronymic with initials) and date of birth are indicated on the basis of a passport or birth certificate. After specifying the date of filling in the work book, the employee certifies the correctness of the entered information with his signature. The first page (cover page) of the work book is signed by the person responsible for issuing work books, and after that the seal of the enterprise (or the seal of the personnel department) on which the work book was filled out for the first time is placed.
In case of doubt as to whether the employment book belongs to a person due to an error, when the surname indicated in the document confirming the work experience does not coincide with the name, patronymic or surname of the person on the passport or birth certificate, taking into account the provisions of paragraph 26 of the Cabinet resolution of the Ministers of Ukraine dated 12.08.1993 No. 637 “On the approval of the Procedure for confirming the existing work experience for assigning pensions in the absence of a work book or relevant entries in it” the fact that this document belongs to the relevant person can be established only in court. Making corrections on the first page (cover page) of the work book is not provided for in such cases by the Instruction on the procedure for keeping work books of employees, approved by Order dated 07.29.93 No. 58.
It should be noted that the court considers in a separate proceeding the case of establishing the facts, if: according to the law, such facts give rise to legal consequences, that is, the emergence, change or termination of personal or property rights depends on them; current legislation does not provide for another procedure for their establishment; the applicant has no other opportunity to receive or restore a lost or destroyed document that certifies a fact of legal significance; the establishment of such a fact is not connected with the further resolution of the dispute about the right.
An individual’s application to establish a fact of legal significance is submitted to the court at his place of residence.
The court fee for submitting an application to establish a fact in 2024 is UAH 605.60.
We warn against a frivolous attitude to the appeal to the court. Sometimes we are faced with the fact that a citizen thinks that he will submit an application, attach a couple of copies of documents to it, and then a month later the court will issue him a decision, even in his favor. This is not so. When you go to court, you must prove the circumstances in connection with which the need to go to court arose. The speed of consideration of the case itself and the satisfaction of the application in favor of the citizen depend on how well-argued the application is.
In the application for the establishment of a legal fact, it is necessary to indicate why the fact is being established – in our case, it is the appointment and receipt of a pension. In addition, in such a statement, interested parties are indicated – those bodies or persons to whom you will later go with the court decision to implement it. According to the statement on the establishment of the fact of ownership of the work book, the interested person will be the indicated Main Directorate of the Pension Fund in the relevant region.
Another stage that needs to be taken into account and passed is whether it is possible to make corrections in the employment book without going to court. In the event that the enterprise in which the employment book was established, or the last one at which the citizen worked, still exists, it is necessary to apply to the enterprise in writing, asking for a duly certified correction to be made in the employment book. Who exactly to contact depends on when and by whom the entry that needs to be corrected was made. If the enterprise, organization or institution cannot do this, then it is also necessary to receive a written refusal from them about the impossibility of making corrections. In case of liquidation of such legal entities or termination of their activity, it is desirable for the court to have appropriate written certificates about these circumstances.
There are cases when entries in the labor book can be certified with old-style seals that do not contain the EDRPOU code, and therefore do not provide an opportunity to identify the presence of this particular firm in the state register as a working one. These circumstances must be mentioned in the application.
What to add next to the statement of fact depends on exactly what spelling problems there are. Sometimes the question is solved very simply and as follows.
In Ukraine, there is the Ukrainian Bureau of Linguistic Examinations of the National Academy of Sciences of Ukraine, which is located in Kyiv. This is a state enterprise that was created in accordance with the resolution of the Bureau of the Presidium of the National Academy of Sciences of Ukraine No. 340 of December 29, 2004. Its activities are specifically aimed at solving controversial issues that arise in the field of official and business functioning of the Ukrainian language, as well as other languages in the legal field of Ukraine. In its activities, the Bureau cooperates with the Ukrainian National Commission on Spelling, scientific institutions of the National Academy of Sciences of Ukraine and other departments, the Ministry of Education and Science of Ukraine, the Ministry of Justice of Ukraine, and other state bodies. His conclusions are used by notaries, courts, and lawyers in their activities. The specified bureau provides conclusions on establishing the identity of records of surnames, first names, patronymics and other proper names.
Providing expert opinions on the identity of records of surnames, names and other proper names is based on the analysis of documents (provided in copies) containing these records. In advance, it is necessary to contact the bureau and clarify with them the possibility of providing an opinion in a specific situation. Usually, in the same situations, the “Sergienko – Sergienko” or “Hennadiyevich – Gennadiyovych” bureau gives positive conclusions that are grounds for the court to satisfy the application.
A more difficult situation is when the spelling has a completely different difference, for example “Polina – Pelagia”. In this case, it is necessary to collect all the available documents – from the birth certificate to any certificates, diplomas, copies of orders, etc., or to trace where exactly the error crept in and to prove the fact that the work book belongs, especially since some of the documents are issued in Russian.
By the way, the following should also be remembered. The absence of a reference or inaccurate entries in the primary documents for accounting for work experience and calculation of wages for a specific position held by a citizen during one or another period of his work at the enterprise in the presence of a properly executed work book cannot be a reason for excluding the indicated periods of work from work experience of a citizen. This gives him the right to the appointment of an old-age pension, since the employee cannot be responsible for the correctness and completeness of the accounting documents at the enterprise, and in turn, the improper procedure for keeping and filling out the work book and other documentation due to the fault of the enterprise administration cannot be a reason for depriving a citizen of his of the constitutional right to social protection in relation to the resolution of the issues of providing an old-age pension. This was noted by the Supreme Court in the decision dated February 21, 2018 in case No. 687/975/17, where it is stated that the burden of proving the truthfulness or reliability of the data specified in his work book cannot be transferred to a person.
According to the letter of the Armed Forces of Ukraine dated 01.01.2012 “On the judicial practice of considering cases on the establishment of facts of legal significance”, when the institutions that issued these documents cannot correct the mistakes made in them, citizens have the right to apply to the court with a statement of establishment of the fact of ownership of the document establishing the right. However, the fact of ownership of the document itself does not create any rights for its owner, the fact that is confirmed by the document has legal significance.
Thus, for the applicant, the receipt of the document is not as important as the registration of personal or property rights arising from this fact. This means that in court it is possible to establish the ownership of such a document, which is a legal document, to a citizen.
In accordance with the explanation of paragraph 12 of the Resolution of the Plenum of the Supreme Court of Ukraine of March 31, 1995 No. 5 “On judicial practice in cases of establishing facts of legal significance”, when considering a case of establishing the fact of the ownership of legal documents to a person, surname, first name I, patronymic, whose place and time of birth, indicated in the document, do not coincide with the name, patronymic, surname, place and time of birth of this person, indicated in the birth certificate or passport, including the fact ownership of the title document, in which mistakes have been made in the surname, first name, patronymic or initials indicated instead of the name or patronymic, the court must invite the applicant to submit evidence that the title document belongs to him and that the organization that issued the document has no opportunity make appropriate corrections to it.
However, this procedure does not apply if corrections in such documents are not properly reserved or their details are not clearly expressed as a result of long-term use, improper storage, etc. This is the basis for solving the issue of establishing the fact referred to in the document, in accordance with the current legislation.
