The question of what financial responsibility the employee bears to the employer is key in many cases of employment, especially for responsible positions with a high risk of the employee’s actions causing damage to the enterprise. Current legislation provides for direct consideration of these issues in the context of labor law, depending on the specific situation of causing material damage by employees.

Employee financial liability – what is it and when does it arise?

The legal regulation of the concept of material liability in the conduct of labor relations is widely disclosed by the provisions of the Labor Code of the Russian Federation. In particular, a section is fully devoted to this topic.XI Labor Code of the Russian Federation. From the point of view of the employee’s financial responsibility to the employer, the main standards for regulating this topic are outlined in Articles 238-250 of the Labor Code of the Russian Federation.

This designation, in accordance with the provisions of Article 238 of the Labor Code of the Russian Federation, means the obligation to compensate for damage to the employer’s property caused by one’s own actions or inaction. Moreover, such an obligation arises through the fault of the employee in the process of carrying out labor relations. In addition, the financial liability of employees at an enterprise may include cases of harm they cause to third parties who have any business relationship with the employer.

The application of liability provisions requires compliance with three fundamental conditions. In particular, the employer has the right to demand compensation from the employee if the following facts are combined:

• There is a cause-and-effect relationship between the employee’s actions and the harm caused. That is, the employer must provide evidence that it was thanks to and due to the actions or failure to commit them by any employee or group of employees that material damage was caused.
• The damage was caused by the employee’s action or inaction that was unlawful. Thus, holding workers accountable is also allowed when, by virtue of their duties, they were required to take certain actions to prevent such consequences, but did not take them.
• The presence of guilt in the damage caused. This should imply a mandatory qualification of the person’s personal attitude to the action that caused the damage. This attitude is recognized as containing guilt if it was expressed in the form of negligence or intent of the employee. That is, when the worker acted in full accordance with existing job descriptions, work responsibilities and common sense, was not aware of the consequences of his actions or inaction and did not seek to cause damage to the employer, he can be released from financial liability.

The legislation considers only actual harm to be considered as liability. This means that the worker is responsible only for the actual decrease in the amount of property of the employer or third parties, or its damage, damage or destruction. The benefit lost due to the employee’s actions cannot be written off and claimed by the employer from the employee.

Labor legislation implies the existence of two main types of financial liability, which applies to workers. The use of the standards of this division is extremely important for the subsequent qualification of the case. Thus, liability can be full or limited. In the first case, the worker is responsible for all and any harm caused by him, and in limited liability it is expected that clear legal limits will be established financial amounts, which may be collected from the employee.

There is also the concept of collective or brigade liability. It provides for a certain division of harm and obligations for its compensation among all employees of a separate division of the enterprise. Members of the said collective, upon voluntary admission of guilt, have the right to themselves determine the degree of responsibility of each of their members, and when resolving the issue in court, it is determined by the court.

In the event of early termination of an employment contract, if the employee’s studies at the expense of the employer were provided for by the terms of this agreement, the person leaving is obliged to reimburse him for all funds spent on his studies.

How is financial liability determined and its size?

By default, all employees bear limited financial liability. It means that maximum size penalties and compensation that an employer can demand are limited to certain limits. Such limits are established by the provisions of Article 241 of the Labor Code of the Russian Federation and in most situations correspond directly to the employee’s average monthly earnings.

Determining the average monthly earnings is the responsibility of the company's accounting department. Moreover, this is calculated for the last two years of labor activity.

• If a shortage of valuables is detected that were entrusted to the employee on the basis of a one-time document or under a written agreement.
• In case of causing harm while intoxicated.
• If the worker intends to cause harm.
• When the damage was caused in connection with the commission of criminal acts by an employee, as determined by a court decision or administrative offense.
• When causing material damage outside the time of performance of their work duties.

In addition, the legislation provides for the possibility of the employer concluding a separate agreement on the full financial responsibility of the employee. Such an agreement is concluded in writing according to the template established by law. It can only be applied to adult workers and only to persons who are included in the list of professions or positions specified in the provisions of Order No. 85 of the Ministry of Labor of the Russian Federation dated December 31, 2002.

By decision of the court or the enterprise body responsible for labor disputes, the amount of funds required from the employee may be reduced.

The procedure for collecting compensation from an employee for damage caused

To recover funds from an employee by agreement during the pre-trial resolution of this issue, the employer can use several different tools. In particular, labor standards provide for the possibility of deducting funds from an employee’s monthly earnings, subject to certain restrictions. Thus, the amount of the penalty may be:

• Up to 70% of the monthly salary in cases where there was evidence of the employee’s criminal actions in causing it.
• Up to 20% of the monthly salary in situations where the employee caused damage through his actions unintentionally or accidentally.

Determining the amount of material damage is an extremely important component of this issue. The amount of possible compensation for harm caused by an employee is calculated from the real market value of goods and property, taking into account depreciation. Confirmation of the cost of goods can be the accounting documents of the enterprise, including those containing information about its acquisition by the enterprise.

Any situation in which material damage is recovered from an employee can be resolved in court or pre-trial. Regardless of the mechanism for resolving this issue, the employer must act in this case as follows:

In what cases is an employee not held liable?

Current legislation suggests that holding a worker liable for a material nature is not permissible in every case of damage to workers. Thus, the provisions of Art. 239 of the Labor Code of the Russian Federation directly classifies the following situations as cases that exclude this liability of employees:

• When causing harm within the limits of normal economic risk. Such a risk is established in the internal documents of the organization and job descriptions of employees, and if necessary, the final decision on this issue is made by the court based on common sense. Normal economic risks include accidental breakdowns of equipment during operation, partial damage to goods during loading or unloading operations, and other types of damage.
• If the harm was caused due to force majeure circumstances. These circumstances include natural disasters, illegal actions of third parties with which the employee was not associated and other events that he could not influence in any way.
• When harm occurred when it was absolutely necessary. Such situations may include an attack by third parties on an employee, the use of equipment and material assets of the enterprise to save the life and health of third parties or the employee himself, and other similar circumstances.
• If harm is caused through the fault of the employer, who did not bother to provide proper conditions for the storage or use of the property entrusted to the employee.

The employer has the exclusive right to relieve its employees from financial liability. That is, if they cause damage to him, he always has every right not to recover compensation from them and to waive any claims against them in connection with such damage to property.

Material liability– a type of legal liability of a party to an employment contract for damage caused to the other party by guilty unlawful actions (or inaction).

Conditions for the occurrence of financial liability are:

1) illegality of the employee’s action (inaction);

2) the presence of direct actual damage;

3) a causal connection between the actions (inaction) of the employee and the harm caused;

4) the employee’s fault (in the form of intent or negligence).

Financial liability of the employer to the employee includes:

1. The employer’s obligation to compensate for the harm caused to the employee as a result of illegal deprivation of his opportunity to work.

Such an obligation, in particular, arises if earnings are not received as a result of:

Illegal removal of an employee from work, his dismissal or transfer to another job;

The employer’s refusal to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee to his previous job;

Delays by the employer in issuing a work book to an employee, or entering into the work book an incorrect or non-compliant formulation of the reason for the employee’s dismissal.

2. The employer’s obligation to compensate for damage caused to the employee’s property.

3. The employer's obligation to compensate for moral damage caused to the employee.

4. The employer's obligation to compensate for damage caused to the employee as a result of delay in payment of wages and other payments due to the employee.

Financial liability of the employee to the employer

The employee is obliged to compensate the employer for damage caused to him direct actual damage– a real decrease in the employer’s available property or a deterioration in the condition of said property (including the property of third parties located at the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to make costs or unnecessary payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties.

Types of employee financial liability:

1) complete – occurs in the cases specified in the law (Article 243 of the Labor Code of the Russian Federation);

2) limited – occurs in all cases, except for the cases of full financial liability specified in the law within the limits of the employee’s average monthly earnings;

3) collective (team) - can be introduced when employees jointly perform certain types of work related to the storage, processing, sale (vacation), transportation, use or other use of the values ​​​​transferred to them, when it is impossible to differentiate the responsibility of each employee for causing damage and conclude with him an agreement on compensation for damages in full size.

Circumstances excluding the employee’s financial liability are:

1) force majeure;

2) normal economic risk;

3) extreme necessity;

4) necessary defense;

5) failure by the employer to fulfill the obligation to provide appropriate conditions for storing property entrusted to the employee.

The legislation provides for two types of liability:

• 1) the employee’s financial liability to the employer;
• 2) the financial liability of the employer to the employee.

These two types of liability differ significantly from each other. Recognizing the legal equality of the parties to an employment contract, the legislation takes into account that the employer:

• 1) economically is always stronger than an individual worker;
• 2) organizes the labor process and, in connection with this, bears responsibility for any adverse consequences that may arise;
• 3) as the owner of the property, he bears the burden of its maintenance and the risk of accidental death or accidental damage.

On the other hand, legislation proceeds from the fact that the main value of a person is his physical and mental ability to work, which he can realize in various legal forms, but primarily by concluding an employment contract. The above determines the difference in the two types of responsibility.

The employee’s financial liability consists of the obligation to compensate for property damage caused through his fault to the employer with whom he has an employment relationship.

Article 165 of the Labor Code of the Republic of Kazakhstan establishes the financial liability of an employee for causing damage to the employer:

• 1. The employee’s financial liability for damage caused to the employer occurs in the cases and amounts provided for by this Code.
• 2. The employee is obliged to compensate for direct actual damage caused to the employer.
• 3. The employee’s liability for damage caused to the employer is excluded if the damage arose as a result of force majeure or extreme necessity, necessary defense, as well as the employer’s failure to fulfill the obligation to provide adequate conditions for the safety of property transferred to the employee.
• 4. It is unacceptable to hold an employee responsible for such damage that can be classified as a normal production and economic risk.
• 5. The employer is obliged to create for employees the conditions necessary for normal work and to ensure the complete safety of the property entrusted to them.
• 6. Direct actual damage is understood as a real decrease in the employer’s available property or deterioration in the condition of said property (including property of third parties located at the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to make expenses or unnecessary payments for acquisition or restoration of property.

The employee’s financial liability arises if the following conditions are simultaneously present:

1) real actual harm suffered by the employer. Direct actual damage is understood as damage to cash, actually existing property through loss of it (or part of it), appropriation, deterioration, damage, decrease in value, which led to the need for the employer to incur costs for restoration, acquisition of property or other valuables, or to make excessive payments for the fault of the employee to another entity (individual or legal entity).

Unlike civil law, in labor law only direct actual damage is subject to recovery. Current labor legislation does not allow recovery from an employee of the income that the organization could have received, but did not receive due to the employee’s incorrect actions. For example, it is impossible to recover from an employee who was absent without a good reason for losses caused by the machine being idle for the entire working day. Disciplinary or social sanctions may be applied to such an employee.

Damage expressed in monetary form is called damage. Actual harm (direct losses) should be distinguished from imaginary harm (imaginary losses). Imaginary harm occurs when there was no real reduction or deterioration of property, but due to improper documentation movement of material assets according to accounting data there is a shortage.

2) The illegality of an action (for example, theft of building materials) or the illegality of inaction (for example, failure to take measures to prevent excessive consumption of fuel), as a result of which harm was caused, i.e. violation by an employee of his labor duties.

Any behavior that is expressed in violation by an employee of the obligation to observe labor discipline and take care of the organization’s property is considered unlawful.

Evidence of the illegality of an employee’s behavior is provided by acts of disposal, loss or damage to property, invoices, explanatory notes, reports, messages from competent authorities and other documents. Indisputable evidence of the wrongfulness of the actions of an employee who caused harm is bringing him to criminal or administrative liability.

But harm can also be caused by lawful actions. Lawful actions that exclude financial liability for harm caused include actions committed in a state of need to prevent the onset of greater harm, as well as actions committed in a state of extreme necessity or due to force majeure.

3) The employee’s guilt in causing harm. Financial liability is assigned to the employee, provided that the damage was caused solely through his fault. Guilt as a condition of material liability lies in the fact that the tortfeasor foresaw or could have foreseen the consequences of his actions, as well as in his attitude towards the act. An unlawful act committed by an employee intentionally or carelessly is recognized as guilty. There are two forms of guilt: intent (direct or indirect) and negligence (frivolity or negligence). The form of guilt affects the type and amount of the employee’s financial liability.

For correct definition the extent of financial liability, it is necessary to carefully and comprehensively determine the degree of guilt of the employee who caused harm by unlawful action or inaction. Direct intent will be evident in the case when the employee is aware of the illegal nature of his behavior, anticipates its harmful consequences and desires their occurrence (for example, in cases of theft, embezzlement). Indirect intent occurs when the employee is aware of the illegal nature of his act and foresees the possibility of damage. At the same time, he does not want harm to occur, but consciously allows its occurrence or is indifferent, uncritical of the possibility of harm. In the form of negligence, damage can be caused through negligence, when the guilty person could and should have foreseen the occurrence of harm, but did not take measures to prevent it.

Material damage can be caused even if there is simultaneous guilt of the employer and the employee. Mixed guilt occurs when, at the same time, the employee improperly treats the safety of the property entrusted to him, and the employer does not take measures to ensure the safety of this property.

4) Causal connection between the employee’s unlawful behavior and the harm caused. An unlawful action or inaction of an employee is a prerequisite for compensation for material damage only when the damage was caused specifically by him. The absence of a causal connection between the employee’s action (inaction) and the harm caused excludes him from being held liable. Therefore, before deciding the issue of the employee’s guilt and causing harm, it is necessary, firstly, to establish the existence of a causal relationship between the action (inaction) and the result, and secondly, to determine whether the harm caused is a direct consequence of this action (inaction) or whether it arose due to other circumstances.

These are the mandatory conditions for the onset of financial liability of an employee; in the absence of at least one of the listed conditions, financial liability doesn't come.

Labor law provides for two types of financial liability - limited and full financial liability. The first is limited to a certain limit in relation to the wages of the causer, and the second is equal to the amount of damage caused. As an innovation, the Labor Code of the Republic of Kazakhstan establishes limited financial liability within the limits of the average monthly salary. Article 166 of the Labor Code of the Republic of Kazakhstan limits the employee’s financial liability. For damage caused, the employee bears financial liability within the limits of his average monthly salary, unless otherwise provided by this Code. In exceptional cases, full financial liability is applied.

Article 167 of the Labor Code of the Republic of Kazakhstan establishes cases full financial liability of the employee for causing damage to the employer. Financial liability for the full amount of damage caused to the employer is assigned to the employee in the following cases:

• 1) failure to ensure the safety of property and other valuables transferred to the employee on the basis of a written agreement on assuming full financial responsibility;
• 2) failure to ensure the safety of property and other valuables received by the employee on account of a one-time document;
• 3) causing damage while under the influence of alcohol, drugs or substance abuse (their analogues);
• 4) shortage, intentional destruction or intentional damage to materials, semi-finished products, products (products), including during their manufacture, as well as tools, measuring instruments, special clothing and other items issued by the employer to the employee for use;
• 5) damage caused by illegal actions of the employee, confirmed in the manner established by the legislation of the Republic of Kazakhstan.

First of all, the question arises of what should be understood by full financial responsibility. It appears that full financial liability includes both damage to property and lost profits. In other words, not only direct actual harm, but also lost income that the employer would have received if there had been no violation on the part of the employee.

According to general rules, employees under the age of 18 are not held fully financially liable. At the same time, according to the legislation of some countries, there may be exceptions to this rule, allowing for the full financial liability of minors if the harm was caused intentionally, under the influence of alcohol, drugs or toxic substances, as a result of the commission of a crime. For example, a novelty in Russian legislation is compensation for damage in full as a result of an administrative violation, if such is established by the relevant government agency. If, as a result of an administrative offense, harm is caused to the employer, the employee who committed this offense may be held fully financially liable. Kazakh legislation generally does not provide for full financial liability for minors, considering that they can only be held to limited financial liability, even if they cause harm intentionally. And this is wrong, since the institution of material responsibility has not only a punitive, but also an educational function.

Employees may be held liable for full financial liability, regardless of their position or work performed. The form of guilt of the employee is important - exclusively intent. Only in case of deliberate destruction or damage to property does full financial liability arise.

Next, what I would like to dwell on is the possibility, under the current labor legislation, of concluding agreements on collective (team) financial liability by an employee for material damage caused to the employer. This issue was not sufficiently developed in the previous labor law of the Republic of Kazakhstan.

Such responsibility of employees was provided for in Art. 119-2 Labor Code of the Kazakh SSR.15 Labor Code of the Kazakh SSR allowed both the conclusion of an agreement on full financial liability (Article 119-1) and collective (team) financial liability. According to the now abolished labor legislation, collective (team) financial responsibility and the conditions for its application were established. A standard agreement on collective (team) financial liability was approved centrally. Such responsibility was introduced when employees jointly performed certain types of work related to the storage, processing, sale (vacation), transportation or use in the production process of valuables transferred to them, when it was impossible to delimit the financial responsibility of each employee. In this case, the valuables were handed over to a predetermined group of workers, each of whose members was responsible for harm caused as a result of failure to ensure the safety of the valuables. The amount of responsibility of a team member was determined in proportion to the tariff rate and the time actually worked by him for the period from the last accounting to the day the damage was discovered.

Meanwhile, in the educational literature on labor legislation, agreements on collective (team) financial responsibility of workers are indicated. This statement is hardly based on law.

The previous law “On Labor in the Republic of Kazakhstan” did not contain provisions on collective (team) financial responsibility. Obviously, this is not accidental and is not at all explained by the economy of legislative material, but by the law’s fundamental rejection of agreements on collective (team) financial liability as infringing on the interests of employees and deviating from the principle of responsibility of employees for guilty actions.

In the new Labor Code of the Republic of Kazakhstan, the provision on collective (team) financial responsibility is enshrined in Article 168, workers jointly performing work related to the storage, processing, sale (release), transportation, use or other use in the production process of property and valuables transferred to them , when it is impossible to differentiate the financial responsibility of each employee for causing damage, and the employer enter into a written agreement on the full collective (joint and several) financial liability of employees for failure to ensure the safety of property and other valuables transferred to employees.

Thus, the Labor Code of the Republic of Kazakhstan has revived the provision on collective (team) financial liability, since in practice there is an objective need to assign responsibility both to the entire team as a whole and to each of its guilty members. Such liability is introduced when employees jointly perform certain types of work related to the storage, processing, sale (release), transportation or use in the production process of valuables transferred to them, when it was impossible to delimit the financial responsibility of each employee. In this case, the valuables are handed over to a predetermined group of workers, each of whose members is responsible for damage caused as a result of failure to ensure the safety of the valuables. The amount of responsibility of a team member is determined in proportion to the tariff rate and the time actually worked by him for the period from the last accounting to the day the damage was discovered.

The necessity of distinguishing between positive and negative responsibility of a team of workers is substantiated, since the nature of these types of responsibility is different. If the positive responsibility of the team is of a preventive and educational nature, then negative responsibility deprives the team of a certain part of the income, which also affects the property status of each employee. These types of liability must be provided for in legislation. When an employee is liable to the employer, the direct culprit of the harm is a specific employee who occupies a subordinate position in relation to the employer and acts only on his own behalf. And since the harm is compensated exclusively from the employee’s funds, recourse liability does not apply to him. In practice, there are cases when the cause of harm is the guilty actions of the employer or the harm arises as a result of the execution of the employer’s order. The employer, represented by the head of the organization, through his illegal behavior can directly cause harm or creates, as it were, conditions for others to cause it (for example, failure to register and store material or other assets, which creates conditions for their appropriation or damage by employees). In these cases, the employee's liability must be excluded.

The employee’s guilt in causing harm can be twofold. Firstly, the guilt is indirect due to insufficient qualifications or careless attitude to the performance of one’s job duties. Secondly, out of selfish motives or personal interest. In our opinion, in order to protect the wages of employees, differentially limited financial liability should be established in the presence of indirect fault of the employee. Intentional infliction of harm should entail full financial liability without any reservations. Moreover, intent is characterized by the fact that the employee foresees the harmful consequences of his behavior and desires or consciously allows them to occur, which means there is no doubt about his guilt (with the exception of a deficiency that can arise either due to intent or as a result of the employee’s careless behavior). In labor legislation we find neither a definition of guilt nor the outlines of the general framework of intent and negligence. Each form of guilt has its own characteristics, reflected in the types and amounts of financial liability.

All negligent offenses are characterized by the subject’s careless attitude towards his actions and consequences. The psychological mechanism of a careless offense is also unique, therefore it is proposed to differentiate the financial responsibility of employees based on the form of guilt: negligence or intent. There is a need for balanced state and legal regulation of social and labor relations. The establishment of financial liability cannot be completely left to the employer. The state should not play the role of a passive observer of the processes occurring in the labor market, it should foresee the consequences of market regulators and foresee an active socially oriented policy of legal regulation of the labor market. The implementation of this function of the state is possible only by saturating labor legislation with means that ensure the priority of the employee’s interests over the interests of the employer. Legal regulation of labor should be based on the idea of ​​legal inequality between employee and employer.

The procedure for compensation by the parties to an employment contract for damage caused is established by Article 169 of the Labor Code of the Republic of Kazakhstan. The party to the employment contract that caused damage (harm) to the other party shall compensate it in the amounts established by this Code and the laws of the Republic of Kazakhstan, based on a court decision or on a voluntary basis.

The amount of damage caused to the organization is determined by actual losses based on accounting data, based on the book value of material assets minus depreciation according to established standards. In case of theft, shortage, intentional destruction or intentional damage of material assets - at state retail prices, and in cases where material assets are lower than wholesale prices - at wholesale prices.

The amount of compensable damage caused due to the fault of several employees is determined for each of them, taking into account the degree of guilt individually in a shared ratio. This means that the degree of guilt of each employee must be taken into account.

The law allows voluntary compensation to employees for damage caused, either in full or in part. With the consent of the employer, the employee has the right to transfer equivalent property for compensation of damage or to repair the damaged property.

Voluntary compensation for damage should be distinguished from written consent to withhold an amount as compensation for damage.

Voluntary compensation for damage is the transfer to an enterprise of either an amount or certain property, and it is not limited either by the type of liability or its limits.

If, in the course of his work, an employee causes damage to third parties and this damage is compensated by the organization in accordance with the law, then the employee, by way of recourse, may be obligated to compensate for this damage.

According to current legislation, the amount of withholding cannot exceed 20% of the salary due for payment. And only when withheld according to several enforcement documents is it possible to recover up to 50%. In any case, the employee retains half of his salary.

The legislation of Russia strictly enshrines the employer’s obligation to pay in a timely and full manner. wages employees. If an employer decides to commit violations in this area, he will face serious inspections and fines for the damage caused. The Labor Code takes a less strict approach to the financial liability of an employee to the owners and management of enterprises. However, an employee should not completely neglect the provisions of Chapter 39 of the Labor Code.

Basic regulations

Despite the fact that an employee, in fact, has more opportunities to cause harm to the employer, the code does not contain a detailed list of types of such damage. Article 238 of the Labor Code of the Russian Federation implies that the employee’s financial liability arises only for direct actual damage. This means that the employer can only demand compensation for damaged or lost material or financial assets. To ensure that management does not try to hold employees responsible for hypothetical costs, in the form of lost profits, this same article clearly prohibits demanding this from team members.

Material damage caused by the employee must be tangible and be expressed in a physical decrease in the amount of valuables or deterioration in their condition, Art. 238 Labor Code of the Russian Federation.

In recent years, management has begun to gladly use this method of moral influence on the consciousness of workers, such as the promise to bring them to financial responsibility for disclosing trade secrets. To increase the vigilance of employees and prevent the spread of internal information, the employer often classifies things that are not at all related to such information as secret. For example, the amount of salary or bonuses, the composition of the founders or registration data. You need to understand that only internal reporting data, tender proposals or proposed activities to promote products, data on technologies, models and designs, and the like are subject to non-disclosure. But, even if this information became known to the hired person, this is not a reason to try to punish him financially. A necessary condition for prosecution will be the obligation to prove several facts:

• the employee owned the information, was aware of its special status and signed a signature on its safety;
• transferred it to unauthorized persons (accidentally or intentionally);
• the data used caused real material losses to the enterprise.

But even in this case, the court will determine the degree of guilt and classify the severity of the employee’s misconduct; until its decision is made, only disciplinary liability can be applied.

If, nevertheless, the illegal use of commercial information is proven, and even with signs of personal gain, then the employee risks falling under Art. 183 of the Criminal Code of the Russian Federation, which states not only the application of impressive fines, but also real imprisonment.

Collect all or cases of full financial liability

Learned - work or compensate

Today you can often find an employer who cares about improving the qualifications of his employees. Investing in the training of specialists has become a common practice, but since modern education costs a lot of money, management also needed means of protection against the dishonesty of students. Article 249 of the Labor Code is intended to regulate this aspect of labor relations, which allows the employer, who has spent financial resources and time on personnel training, to demand their compensation in the event that the employee fails to fulfill his obligations for mandatory work.

If an employee violated the contract to obtain a specialty at the expense of the company and quit before completing his studies without good reason, then the entire amount spent during the years of study is subject to recovery. If the work period is violated, then an amount calculated in proportion to the unworked time is reimbursed.

There is damage, but there is no responsibility

But even established actual damage and its culprit do not always mean that the employee will be held financially responsible. In the event of force majeure or a risk of life for the employee himself or several, especially if the person did everything possible to preserve the property, such damage cannot be recovered, Art. 239 TK.

This same article also implies another reason for the employer to refuse attempts to obtain from the employee the value of stolen or damaged materials. If management neglects its responsibilities to ensure conditions for storing valuables, then even the specialist who signed the documents on their preservation will not be financially responsible for their loss. For example, if the employer discloses information about security methods, admits strangers to the warehouse territory, or refuses to timely repair locks and install bars, the storekeeper will be able to prove in court his innocence of the detected shortage and avoid paying their cost.

The employee is to blame, but the employer will answer

In addition to direct damage in the form of theft or equipment breakdown, an employee can also cause harm in an indirect way: damaging property belonging to the counterparty, but transferred to his enterprise for safekeeping. In this case, the employer of the negligent specialist will have to pay the full cost of the damaged materials (Articles 402 and 1068 of the Civil Code of the Russian Federation), and then decide how to recover the costs incurred from the offender (Chapter 39 of the Labor Code). So, if the fabric was damaged in the studio or the size was wrong, the customer will rightfully demand a refund from the management of the sewing company. All attempts by the employer to remove responsibility from the organization and step aside will be illegal, since the court will consider the atelier to be the executor, and not a specific seamstress. How the relationship between management and the person hired to perform the work will develop in the future will not concern the customer.

The employer’s responsibility is to prove the amount of damage and establish the employee’s guilt

The fact of material damage can be established both situationally (application from a counterparty, emergency, report of the financially responsible person) and during planned activities (inventory). But recording this state of affairs is not enough to make financial claims against an employee. First you need to conduct an inspection and comply with the established art. 247 TC procedures:

1. Create a new or convene an existing commission at the enterprise, designed to establish the amount of damage, its causes and those responsible.
2. Determine the quantitative composition of the missing property and its value (based on accounting registers or according to current market valuations).
3. Find out the circumstances of the damage and the circle of those involved.
4. Require written explanations from all those potentially responsible for causing harm. If employees refuse to write them, this should be recorded in a separate act.
5. Assess the degree of guilt of the employee or the participation of each member of the team, taking into account mitigating circumstances that make it possible to refuse the demand for compensation payments, Art. 240 TK. As a rule, the salaries of all those responsible are also taken into account.
6. Based on the results of the inspection, draw up an inventory sheet or a defect report.
7. Familiarize the guilty employee with the inspection materials and take into account his objections.
8. Issue an order (instruction) to hold the employee financially liable.

It should be noted that conducting an inspection is the direct responsibility of the employer. If he evades it, but does not give up his intention to financially punish an employee for damaged property, the indiscriminately accused person can not only ignore the demands of his superiors, but also go to court to protect his interests.

In the process of checking and determining the amount of losses, the employer has the right to waive claims against the employee, or partially reduce them, based on the employee’s explanations or the specific circumstances of the incident, Art. 240 Labor Code of the Russian Federation.

Procedure for payment of material damage

If all the formalities to establish the amount of financial losses of the enterprise and the circle of persons responsible for them are observed, the moment comes when the funds must be legally withheld from the income of employees and their withdrawal must be documented.

Voluntary payment for damage caused

In rare cases of reaching an agreement between an employee and an employer on voluntary reimbursement of costs incurred by the company to restore material assets or settle relations with counterparties, it will be necessary to conclude a written agreement. The offending employee undertakes to pay the amount of damage. Moreover, the restriction established by Art. 138 TK. The agreement may imply a complete one-time deposit of money into the cash register or the current account of the enterprise, and repayment of debt in installments, and even a separately agreed amount that does not correspond to either accounting data or market information. The validity of the signed contract does not terminate with the termination of the employment relationship and will continue even after dismissal.

Unfortunately, such agreements are often not fully implemented or they are abandoned before payments have begun. In this case, the employer has only one way to bring the employee to financial responsibility - going to court for the truth.

Arbitrage practice

Lawyer at the Legal Defense Board. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and other regulatory documents to regulatory authorities.

The employee is obliged to compensate the employer for direct actual damage caused to him. Lost income (lost profits) cannot be recovered from the employee.

Direct actual damage is understood as a real decrease in the employer’s available property or deterioration in the condition of said property (including property of third parties located at the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to make costs or excessive payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties.

Part three is no longer valid. - Federal Law of June 30, 2006 N 90-FZ.

Article 239. Circumstances excluding the financial liability of an employee

The employee's financial liability is excluded in cases of damage arising due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer's failure to fulfill the obligation to provide adequate conditions for storing property entrusted to the employee.

Article 240. The employer’s right to refuse to recover damages from an employee

The employer has the right, taking into account the specific circumstances in which the damage was caused, to fully or partially refuse to recover it from the guilty employee. The owner of the organization's property may limit the specified right of the employer in cases provided for by federal laws and other regulatory legal acts. Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation, regulatory legal acts of local governments, constituent documents of the organization.

(as amended by Federal Law No. 90-FZ of June 30, 2006)

Article 241. Limits of employee’s financial liability

For damage caused, the employee bears financial liability within the limits of his average monthly earnings, unless otherwise provided by this Code or other federal laws.

Article 242. Full financial liability of the employee

The employee’s full financial liability consists of his obligation to compensate the direct actual damage caused to the employer in full.

(as amended by Federal Law No. 90-FZ of June 30, 2006)

Financial liability in the full amount of damage caused may be assigned to the employee only in cases provided for by this Code or other federal laws.

Employees under the age of eighteen bear full financial liability only for intentional damage, for damage caused while under the influence of alcohol, drugs or other toxic substances, as well as for damage caused as a result of a crime or administrative offense.

(as amended by Federal Law No. 90-FZ of June 30, 2006)

Article 243. Cases of full financial liability

Financial liability in the full amount of damage caused is assigned to the employee in the following cases:

1) when, in accordance with this Code or other federal laws, the employee is charged with financial liability in full for damage caused to the employer during the performance of the employee’s job duties;

2) shortage of valuables entrusted to him on the basis of a special written agreement or received by him under a one-time document;

3) intentional infliction of damage;

4) causing damage while under the influence of alcohol, drugs or other toxic substances;

(as amended by Federal Law No. 90-FZ of June 30, 2006)

5) damage caused as a result of the employee’s criminal actions established by a court verdict;

6) causing damage as a result of an administrative violation, if established by the relevant government body;

7) disclosure of information constituting a secret protected by law (state, official, commercial or other), in cases provided for by federal laws;

(as amended by Federal Law No. 90-FZ of June 30, 2006)

8) damage was caused while the employee was not performing his job duties.

Financial liability in the full amount of damage caused to the employer can be established by an employment contract concluded with the deputy heads of the organization and the chief accountant.

(as amended by Federal Law No. 90-FZ of June 30, 2006)

Article 244. Written agreements on the full financial responsibility of employees

Written agreements on full individual or collective (team) financial liability (clause 2 of part one of Article 243 of this Code), that is, on compensation to the employer for damage caused in full for the shortage of property entrusted to employees, can be concluded with employees who have reached the age of eighteen years and directly servicing or using monetary, commodity values ​​or other property.

(as amended by Federal Law No. 90-FZ of June 30, 2006)

Lists of works and categories of workers with whom these contracts can be concluded, as well as standard forms of these contracts, are approved in the manner established by the Government of the Russian Federation.

Article 245. Collective (team) financial liability for damage

When employees jointly perform certain types of work related to the storage, processing, sale (release), transportation, use or other use of valuables transferred to them, when it is impossible to differentiate the responsibility of each employee for causing damage and to conclude an agreement with him on compensation for damage in full, collective (team) financial liability may be introduced.

A written agreement on collective (team) financial liability for damage is concluded between the employer and all members of the team (team).

Under an agreement on collective (team) liability, valuables are entrusted to a predetermined group of persons, who are assigned full financial responsibility for their shortage. To be released from financial liability, a member of a team (team) must prove the absence of his guilt.

In case of voluntary compensation for damage, the degree of guilt of each member of the team (team) is determined by agreement between all members of the team (team) and the employer. When recovering damages in court, the degree of guilt of each member of the team (team) is determined by the court.

Article 246. Determination of the amount of damage caused

The amount of damage caused to the employer in the event of loss and damage to property is determined by actual losses, calculated on the basis of market prices prevailing in the area on the day the damage was caused, but not lower than the value of the property according to accounting data, taking into account the degree of depreciation of this property.

Federal law may establish a special procedure for determining the amount of damage subject to compensation caused to an employer by theft, intentional damage, shortage or loss of certain types of property and other valuables, as well as in cases where the actual amount of damage caused exceeds its nominal amount.

Article 247. The employer’s obligation to establish the amount of damage caused to him and the cause of its occurrence

Before making a decision on compensation for damage by specific employees, the employer is obliged to conduct an inspection to establish the amount of damage caused and the reasons for its occurrence. To conduct such a check, the employer has the right to create a commission with the participation of relevant specialists.

Requiring a written explanation from the employee to establish the cause of the damage is mandatory. In case of refusal or evasion of the employee from providing the specified explanation, a corresponding act is drawn up.

(Part two as amended by Federal Law No. 90-FZ of June 30, 2006)

The employee and (or) his representative have the right to familiarize himself with all inspection materials and appeal them in the manner established by this Code.

Article 248. Procedure for recovery of damages

Recovery from the guilty employee of the amount of damage caused, not exceeding the average monthly earnings, is carried out by order of the employer. The order can be made no later than one month from the date of final determination by the employer of the amount of damage caused by the employee.

If month period has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer, and the amount of damage caused to be recovered from the employee exceeds his average monthly earnings, then recovery can only be carried out by the court.

(as amended by Federal Law No. 90-FZ of June 30, 2006)

If the employer fails to comply with the established procedure for collecting damages, the employee has the right to appeal the employer’s actions in court.

An employee who is guilty of causing damage to the employer may voluntarily compensate for it in whole or in part. By agreement of the parties to the employment contract, compensation for damage by installments is allowed. In this case, the employee submits to the employer a written obligation to compensate for damages, indicating specific payment terms. In the event of dismissal of an employee who gave a written commitment to voluntarily compensate for damage, but refused to compensate for the specified damage, the outstanding debt is collected in court.

With the consent of the employer, the employee may transfer equivalent property to compensate for the damage caused or repair the damaged property.

Compensation for damages is made regardless of whether the employee is subject to disciplinary, administrative or criminal liability for actions or inactions that cause damage to the employer.

Article 249. Reimbursement of costs associated with employee training

(as amended by Federal Law No. 90-FZ of June 30, 2006)

In the event of dismissal without good reason before the expiration of the period stipulated by the employment contract or agreement on training at the expense of the employer, the employee is obliged to reimburse the costs incurred by the employer for his training, calculated in proportion to the time actually not worked after completion of training, unless otherwise provided by the employment contract or training agreement.

Article 250. Reduction by the labor dispute resolution body of the amount of damage to be recovered from the employee

The labor dispute resolution body may, taking into account the degree and form of guilt, the financial situation of the employee and other circumstances, reduce the amount of damage to be recovered from the employee.

The amount of damage to be recovered from the employee is not reduced if the damage was caused by a crime committed for personal gain.