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 the specified 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 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 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 the employee who caused the 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.

To correctly determine the amount 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, foresees 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 body. 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 liability was introduced when employees jointly performed 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 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 harm 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 damage 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, deliberate destruction or deliberate damage to 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.

It is necessary to distinguish voluntary compensation for damage from written consent to withhold the amount as compensation for damage.

Voluntary compensation for damage is the transfer of either an amount or certain property to an enterprise, 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 may be obligated to compensate for this damage by way of recourse.

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.

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 wording 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 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 with him an agreement on compensation for damage in full.

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.

17.04.2016

Ownership in Russian Federation recognized and protected by the state. Accordingly, private, state, municipal and other forms of property are equally recognized and protected. The financial liability of employees for damage caused to the employer in the performance of labor duties is one of the means of protecting the employer's property rights.

Material liability of employees according to labor law standards

Careful attitude towards the employer’s property is one of the main responsibilities of an employee under an employment contract (Article 21 of the Labor Code of the Russian Federation). In cases where he violated the requirement of the law to take care of the employer’s property, as a result of which the employer suffered property damage, the employee is obliged to compensate for this damage. In other words, employees are held liable according to the norms of labor law, which is defined as a measure of state coercion, which consists of imposing on the employee the obligation to compensate, in the manner and amount established by law, for damage caused through his fault to the organization with which he has an employment relationship.

The legal basis for the institution of material liability of employees is formed mainly by constitutional norms, for example, Art. 8 of the Constitution of the Russian Federation, which establishes forms of ownership and their inviolability, as well as the Labor Code of the Russian Federation (Chapters 37, 39).

The financial liability of employees under labor law must be distinguished from other measures of material influence, namely:

• Deprivation or reduction of the bonus amount provided for by the wage and remuneration system based on the results of the organization’s annual work (where such remuneration is provided for by local regulations, containing labor law norms).
• Reducing the coefficient of labor participation in a collective form of organization and labor stimulation.
• Deductions from wages made on the basis of the law (Article 137 of the Labor Code of the Russian Federation).

Regulatory legal acts regulating compensation for material damage caused to the employer are intended to:

• Firstly, to ensure the safety of the property of the employer and employee, to prevent waste and mismanagement.
• Secondly, to help strengthen labor discipline.
• Third, ensure the protection of workers' wages from excessive and illegal deductions.

Material liability under labor law encourages workers to work in such a way that there is no damage, loss, destruction, or theft of material assets. It is called upon to play a serious role in the fight against violations of state discipline, which may include distortions of operational and accounting reporting and registration. Such phenomena not only cause significant harm to the normal activities of the organization, but also cause material damage, which, as practice shows, is expressed to a greater extent in the theft of unaccounted for or unspent material assets.

Subjects of material liability in labor law, as was said, can be both an employee and an employer (organization), regardless of the form of ownership on the basis of which this organization is created. As economic and judicial practice shows, the subject of legal relations regarding material liability in the sphere of labor is primarily the employee who has caused material (property) damage to the employer through his unlawful guilty actions (inaction).

Conditions for bringing an employee to financial liability

An analysis of the norms of the Labor Code of the Russian Federation, in particular Articles 233, 238 of the Labor Code of the Russian Federation, leads to the conclusion that the employee’s financial liability arises for damage caused to the employer only if a set of the following conditions is established:

1. The presence of direct actual damage.
2. Illegality of employee behavior.
3. Causal relationship between the employee’s unlawful behavior and the occurrence of damage.
4. The employee's fault for causing the damage.

These conditions are mandatory and in the absence of at least one of them, the employee cannot be held financially liable for labor law standards.

1. Existence of direct actual damage must be proven. Proof of the occurrence of damage is a statement by a party to the employment contract, supported by documents and other evidence, including witness testimony.

In paragraph 2 of Art. 55 of the Civil Procedure Code of the Russian Federation establishes that evidence obtained in violation of the law has no legal force and cannot be used as the basis for a court decision. Evidence is characterized by the fact that it represents factual data, that is, information that correctly and sufficiently reflects the circumstances that are important for determining the existence of material damage caused to one or another party to the employment contract.

Unlike civil law, only actual damage (also called direct or actual) that was actually caused by the employer or employee must be proven. In civil law, in addition to real damage, lost income is also recovered, which a person (individual or legal entity) would have received under normal conditions of civil circulation if his right had not been violated (lost profits or lost income). The norms of labor legislation do not provide for the recovery of lost income (profit that the employer could have received, but did not receive as a result of unlawful actions (inaction) of his employees)

2. Illegality of employee behavior is a legally significant circumstance when bringing him to financial responsibility. Behavior (action or inaction) is considered illegal if it violates certain obligations assigned to a party to an employment contract by the relevant labor standards. The main duties of the employee are provided for in Art. 21 of the Labor Code of the Russian Federation. In addition, the employee’s responsibilities arise from the content of the employment contract, as well as internal labor regulations.

The behavior of an employee in which he does not fulfill his job duties or performs them improperly, but only those duties that are directly or indirectly related to careful attitude towards material assets (the property of the employer and other employees) in accordance with Art. 21 Labor Code of the Russian Federation. These responsibilities are usually specified in special acts that determine the procedure for saving, storing and using property and other material assets. These acts, in addition to laws, decrees of the President of the Russian Federation, resolutions, orders of the Government of the Russian Federation, include internal labor regulations, job descriptions, various rules, instructions and orders of the employer.

Inaction is considered illegal if the above acts impose on the parties to the employment contract (or one of them) the obligation to perform certain actions, which one or another party did not fulfill. If this concerns, in particular, an employee, he must be familiar with such an act.

3. Causalitybetween unlawful behavior of an employee and the presence of damage is one of the mandatory conditions for bringing him to financial responsibility. Proving this circumstance involves presenting evidence confirming the connection between the non-fulfillment or improper fulfillment of the duties assigned to the employee in compliance with the law with the occurrence of damage. Of course, there is no financial liability for accidental consequences.

4. The employee's fault for causing the damage should be taken into account when deciding whether to hold him financially liable. In labor law, guilt is understood as a person’s mental (internal) attitude towards his illegal behavior and its consequences (results).

A distinction is made between guilt in the form of intent (direct or indirect) and in the form of negligence (arrogance, negligence, imprudence). Direct intent occurs when the employee is aware of the illegal nature of his action (behavior), foresees the possibility of harmful consequences (damage) and desires their occurrence. With indirect intent, the employee, aware of the illegality of his behavior and understanding the possibility of material damage, does not want this, but allows harmful consequences to occur or is indifferent to their occurrence.

Carelessness in the form of arrogance is that the employee, aware of the illegal nature of his action (inaction) and the possibility of material damage as a result, frivolously hopes to prevent the latter.

Negligence and imprudence are evident where the employee was not aware of the illegal nature of his behavior and did not foresee the possibility of causing damage, but due to the circumstances of the case he should have and could have foreseen.

Any form of guilt can serve as a basis for holding an employee financially liable under labor law (of course, in the presence of other conditions of financial liability provided for by law).

When deciding whether to hold an employee financially liable, dividing intent into direct or indirect intent has no practical significance. At the same time, the difference between intent and negligence plays a certain role, since in some cases the limits of financial liability (limited or full) depend on the form of guilt. If the damage is caused by the intentional actions of the employee, including when the employee did not want, but consciously allowed the possibility of damage to occur, then financial liability arises in the full amount of the damage caused (Clause 3, Part 1, Article 243 of the Labor Code of the Russian Federation).

Circumstances excluding the employee’s financial liability

In a number of cases, the law provides for a rule according to which the employee’s financial liability to the employer is excluded. In particular, in accordance with Art. 239 of the Labor Code of the Russian Federation, such cases include: the occurrence of damage due to force majeure, normal economic risk, extreme necessity or necessary defense, or failure by the employer to fulfill obligations to ensure proper conditions for storing property entrusted to the employee.

Force majeure (force majeure) is an extraordinary and unpreventable event or circumstance under given conditions (natural disaster, for example, flood, earthquake, some social phenomena, for example, military operations, man-made accidents).

It is not allowed to hold employees financially responsible for such damage that arose as a result of normal economic risk.

The resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52 (clause 5) states that the actions of an employee that correspond to modern knowledge and experience can be classified as normal economic risk, when the goal could not be achieved otherwise, the employee properly fulfilled his official duties, showed a certain degree of care and prudence, took measures to prevent damage, and the object of risk was material assets, and not the life and health of people.

A circumstance that releases an employee from financial liability due to the absence of illegal behavior may be the fulfillment of a requirement (order, instruction) of the employer (his representative) to commit actions that led to material damage.

Article 240 of the Labor Code of the Russian Federation gives the employer the right to refuse to collect damages caused by an employee, in whole or in part. The employer can use this right taking into account the circumstances in which the damage was caused, the financial situation of the employee and other circumstances. Such a refusal is permissible regardless of whether the employee bears limited financial liability or full financial liability, and also regardless of the form of ownership of the organization.

tagPlaceholder Tags: labor, responsibility

^ 1. The employee’s financial liability is expressed in his obligation to compensate for damage caused to the employer by unlawful, guilty actions or inaction in the course of his work.

In its legal essence, an employee’s financial liability has many similarities with disciplinary liability.

Both are punishable for failure to perform or improper performance of duties that constitute the content of labor discipline, i.e., for a disciplinary offense.

To attract both material and disciplinary liability, it is necessary to have such general conditions of legal liability as the presence of the employee’s guilt in committing an action or inaction and their illegality.

At the same time, material and disciplinary liability of employees are independent types of legal liability, regulated by labor law, and therefore there are fundamental differences between them.

An employee’s financial responsibility, unlike disciplinary responsibility, is not directly aimed at ensuring labor discipline. Its main goal is compensation for the damage caused. Although it should be noted that indirectly financial responsibility contributes to the achievement of this goal.

Firstly, the enshrinement in law of the obligation to compensate for damage caused to the employer in itself encourages employees to comply with those rules of conduct that are aimed at ensuring the safety of the employer’s property.

Secondly, bringing a specific offender to financial responsibility has a preventive effect on other employees who are aware that in similar cases they will suffer equally unfavorable consequences.

In contrast to disciplinary liability, an employee can be held liable not for any guilty, illegal action or inaction, but only for that which resulted in property damage to the employer. Bringing an employee to financial responsibility does not exclude the employer’s right to subject him to disciplinary liability for the same offense that caused property damage.

If the application of disciplinary liability has only a moral impact on the employee, then as a result of being held materially liable, unfavorable moral and property consequences occur.

As already noted, the right of a party to an employment contract to compensate for damage caused to it by the other party continues even after the employment relationship is terminated. Applying disciplinary liability (disciplinary action) to an employee is possible only during the period of existence of the employment relationship.

^ 2. The material liability of an employee under labor law has some similarities with the property liability of citizens under civil law.

The basis of both liability is the obligation to compensate for the damage caused. However, there are very serious differences between the material liability of an employee under labor law and property liability under civil law, due to the peculiarities (specificity) of the subject and method of these industries, as well as their official role.

Unlike civil legislation, according to which the parties to property relations, as a general rule, have equal rights and any of them has the right to demand full compensation for losses caused to it (i.e., both actual damage and lost profits), the subjects of the labor relationship are in unequal position in relation to each other.

In accordance with labor legislation, the employee, as a general rule, bears limited financial liability and, as already noted, only compensates for direct actual (real) damage, while the employer is obliged to compensate the employee for the losses caused in full.

This is due to the fact that the employee is the economically weaker side of the labor relationship. He is more dependent on the employer than the employer is on him. The employee is obliged to submit to the employer’s authority, follow his instructions in the course of his work, and strive to ensure the safety of the property entrusted to him in connection with the performance of his work duties. In turn, the employer has the responsibility not only to properly organize the labor process, but also to take measures to prevent the occurrence of property damage.

Labor law norms regulating the grounds, limits and procedure for compensation for material damage are mandatory in nature. They are established by law and cannot be changed by agreement of the parties.

Thus, protecting the interests of the economically weaker party - the employee, the Labor Code determined that by agreement of the parties, the employer’s financial liability cannot be determined lower, and the employee’s responsibility to the employer is higher than provided for by the Code (Part 2 of Article 232, Part 1 of Art. 235, Art. 241) or other federal laws. Only within the specified limits the parties have the right to establish a specific amount of liability. According to the norms of civil law, the parties have the right to determine the grounds, limits and conditions of property liability themselves.

^ 3. General provisions on the employee’s financial liability for damage caused to the employer are provided for in Art. 238

TK. In accordance with it, the employee is obliged to compensate the employer for direct actual (real) damage caused to him.

?

The obligation to compensate for direct actual damage arises for the employee both in cases where such damage was caused directly to the employer (for example, due to a shortage of valuables entrusted to him), and in cases where the damage was caused to third parties through the fault of the employee, and the employer, in accordance with obligated by law to compensate for this damage.

?

Damage caused by an employee to third parties should be understood as all amounts paid by the employer to third parties to compensate for damage. It must be borne in mind that the employee can be held liable only within the limits of these amounts and subject to the existence of a cause-and-effect relationship between the culpable actions (inaction) of the employee and causing damage to third parties.

By virtue of Part 2 of Art. 392 of the Labor Code, the employer has the right to file a claim against the employee for the recovery of amounts paid to compensate for damage to third parties within one year from the date of payment by the employer of these amounts (clause 15 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 16, 2006 No. 52).

Lost income (lost profits), as already noted, cannot be recovered from the employee.

?

While defining the grounds and conditions for the onset of financial liability of an employee, the Labor Code, at the same time, determines the cases in which the employee is released from such liability.

In accordance with Art. 239 of the Labor Code, an employee cannot be held financially liable if the damage occurred as a result of 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.

Normal economic risk may include the actions of an employee that correspond to modern knowledge and experience, when the set goal could not be achieved otherwise, the employee properly fulfilled his job duties, showed a certain degree of care and prudence, took measures to prevent damage, and the object the risk was material assets, and not the life and health of people (clause 5 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of November 16, 2006 No. 52).

The concepts of extreme necessity and necessary defense are enshrined in the Criminal Code.

In accordance with Art. 39 of the Criminal Code, damage is considered to be caused in a state of extreme necessity, when the person who caused the damage acted to eliminate a danger that directly threatens the person or rights of that person or other persons, the legally protected interests of society or the state, if this danger could not be eliminated by other means.

Damage is considered to be caused in a state of necessary defense if it was caused under circumstances when the defender defended himself or other persons, the legally protected interests of society or the state from a socially dangerous attack, if this attack was associated with violence dangerous to the life of the defender or another person, or with an imminent threat of such violence.

Protection from an attack that does not involve life-threatening violence or an immediate threat of such violence is lawful if the limits of necessary defense are not exceeded. Deliberate actions that clearly do not correspond to the nature and danger of the attack are recognized as exceeding the limits of necessary defense (Article 37 of the Criminal Code).

All persons have the right to necessary defense equally, regardless of their professional or other special training and official position. This right belongs to a person regardless of the possibility of avoiding a socially dangerous attack or seeking help from other persons or authorities.

The employer has the right, but not the obligation, to recover from the employee damage caused to him through his fault. Taking into account the specific circumstances in which the damage was caused, the employer may completely refuse to collect damages from the guilty employee or recover it partially (Article 240 of the Labor Code). Such a refusal is permissible regardless of whether the employee bears limited financial liability or full financial liability, and also regardless of the form of ownership of the organization (clause 6 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 16, 2006 No. 52). At the same time, in cases provided for by federal laws, other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of constituent entities of the Russian Federation, regulatory legal acts of local government bodies, and the constituent documents of the organization, the owner of the organization’s property may limit the specified right of the employer (Article 240 of the Labor Code).

^ 4. The Labor Code provides for two types of financial liability of an employee for damage caused to the employer - limited financial liability and full. In this regard, the employee who caused damage to the employer may be assigned either limited or full financial liability.

4.1. Limited financial liability is the main type of financial liability of an employee for damage caused to the employer. It consists in the employee’s obligation to compensate for direct actual damage caused to the employer, but not in excess of the maximum limit established by law, determined in relation to the amount of wages he receives.

In accordance with Art. 241 of the Labor Code, such a maximum limit is the average monthly earnings of an employee.

The use of limited liability within the limits of average monthly earnings means that if the amount of damage exceeds the employee’s average monthly earnings, he is obliged to compensate only that part of it that is equal to his average monthly earnings. In other words, with limited financial liability, the employee is obliged to fully compensate for direct actual damage caused to the employer only in cases where this damage does not exceed his average monthly earnings.

The rule on limited financial liability within the limits of average monthly earnings is applied in all cases, except for those in respect of which the Labor Code or other federal law directly establishes higher financial liability, for example, full financial liability (Article 242 of the Labor Code). At the same time, as explained in the Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 16, 2006 No. 52, if the employer makes a claim for compensation by the employee for damage within the limits of his average monthly earnings (Article 241 of the Labor Code), however, during judicial trial If the circumstances with which the law connects the onset of full financial liability of the employee are established, the court is obliged to make a decision on the claims made by the plaintiff and cannot go beyond their limits, since by virtue of Part 3 of Art. 196 of the Code of Civil Procedure, such a right is granted to the court only in cases provided for by federal law (clause 7).

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

Financial liability in the full amount of damage caused to the employer can be assigned to the employee only in cases expressly determined by the Labor Code or other federal law.

The list of cases of full financial liability of employees is established by Art. 243 TK. However, it does not apply in full to all workers, but only to those who have reached the age of 18. In accordance with Art. 242 of the Labor Code, employees under the age of 18 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 as a result of committing a crime or administrative offense, i.e. only in cases provided for in paragraphs 3-6 of Art. 243 TK.

Financial liability in the full amount of damage caused to the employer in accordance with Art. 243 of the Labor Code is assigned to the employee in the following cases.

When financial responsibility in full is assigned to the employee by the Labor Code or other federal law (clause 1, part 1, article 243 of the Labor Code).

So in accordance with Part 1 of Art. 277 of the Labor Code, full financial responsibility for damage caused to the organization lies with its director. Therefore, the employer has the right to demand full compensation for damages from the head of the organization, regardless of whether the employment contract with him contains a condition on full financial liability. By virtue of Part 2 of Art. 243 of the Labor Code, financial responsibility in full can be assigned to the deputy head of the organization or the chief accountant, provided that this is established by the employment contract. As explained in the Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 16, 2006 No. 52, if the employment contract does not stipulate that in the event of damage, these persons bear financial liability in full, then in the absence of other grounds giving the right to hold these persons to such liability, they can only be held liable to the extent of their average monthly earnings.

In accordance with Art. 68 of the Federal Law of 07.07.2003 No. 126-FZ “On Communications”, employees of telecom operators are financially liable to their employers for the loss or delay of delivery of all types of postal and telegraph items, damage to postal mail attachments that occurred through their fault in the performance of their official duties , in the amount of liability that the telecom operator bears to the user of communication services, unless another measure of liability is provided for by the relevant federal laws.

In the Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 16, 2006 No. 52, it was explained to the courts that when considering a case for compensation for direct actual damage caused to the employer in full, the employer is obliged to provide evidence indicating that, in accordance with the Labor Code or other federal laws, the employee may be held accountable for the full amount of the damage caused and at the time of its infliction reached the age of 18, with the exception of cases of intentional damage or damage caused while under the influence of alcohol, drugs or other toxic substances, or if the damage was caused as a result of a crime or administrative offense, when an employee can be held fully financially liable before reaching the age of 18 (clause 8).

If there is a shortage of valuables entrusted to the employee on the basis of a special written agreement or received by him under a one-time document (clause 2, part 1, article 243 of the Labor Code). A written agreement on full financial responsibility can be concluded with an individual employee (agreement on full individual financial responsibility) or with a team (team) of workers (agreement on full collective (team) financial responsibility).

In case of collective (team) financial liability, the damage caused to the employer is compensated in full not by one employee, but by all members of the team who have entered into an agreement on collective financial liability.

Agreements on full individual and collective (team) financial liability are concluded according to the rules established by Art. 244 TK.

In accordance with this article, an agreement on full individual or collective (team) financial liability is an agreement on compensation to the employer for damage caused in full for the shortage of property entrusted to employees.

Such an agreement can be concluded with an employee only if the following mandatory conditions are met: 1)

if the employee has reached 18 years of age, i.e. is an adult;

2)

if the position held or the work performed by the employee is directly related to the maintenance or use of monetary, commodity valuables or other property;

3)

The Government of the Russian Federation, by its Resolution No. 823 dated November 14, 2002, ordered the development and approval of lists of positions and work replaced or performed by employees with whom the employer can enter into written agreements on full individual or collective (team) responsibility, as well as standard forms of agreements on full financial responsibility Ministry of Labor and Social Development of the Russian Federation. In pursuance of this decree of the Government of the Russian Federation, the Ministry of Labor of Russia, by Decree No. 85 dated December 31, 2002, approved two such lists: List of positions and work replaced or performed by employees with whom the employer can enter into written agreements on full individual financial liability for shortages of entrusted property, and List of work , in the implementation of which full collective (team) financial liability for the shortage of property entrusted to employees can be introduced. The same resolution of the Ministry of Labor also approved standard forms of contracts on full individual financial responsibility and on full collective (team) financial responsibility.

The named Lists of positions and works are exhaustive and are not subject to broad interpretation.

The List of positions and work replaced or performed by employees with whom the employer can enter into written agreements on full individual financial responsibility for shortages of entrusted property includes, in particular, the following positions: cashiers, controllers, cashier-controllers; managers, specialists and other employees carrying out transactions for the purchase, sale and other forms and types of circulation of banknotes, valuable papers, precious metals, coins made of precious metals and other currency values, collection functions; sellers, merchandisers of all specializations; managers of warehouses, storerooms, pawnshops, storage rooms, and their deputies; forwarders and other workers.

The types of work, in particular, include: work on accepting and paying all types of payments; servicing vending and cash machines; work on receiving and processing (accompanying) cargo, luggage, postal items and other material assets;

work on the purchase, sale, exchange, transportation, delivery, forwarding, storage, processing and use in the production process of precious and semi-precious metals, stones and other materials, as well as products made from them; work on the production, processing, transportation, storage, accounting and control, sale of nuclear materials, radioactive substances and waste, other chemicals, bacteriological materials, weapons and other products (goods) prohibited or restricted for free circulation, as well as other work.

In accordance with the Model Agreement on Full Individual Liability, the employee is obliged to: take care of the employer’s property transferred to him for the implementation of the functions (responsibilities) assigned to him and take measures to prevent damage; promptly inform the employer or immediate supervisor about all circumstances that threaten the safety of the property entrusted to him; keep records, draw up and submit in the prescribed manner commodity-money and other reports on the movement and balances of the property entrusted to him; participate in the inventory, audit, and other verification of the safety and condition of the property entrusted to him.

In turn, the employer is obliged to: create for the employee the conditions necessary for normal work and ensuring the complete safety of the property entrusted to him; acquaint him with the legislation on financial liability, as well as regulatory legal acts regulating the procedure for storage, reception, processing, sale, transportation and use in the production process of the property transferred to him; carry out inventory, audits and other checks of the safety and condition of property in the prescribed manner.

Failure by the employer to fulfill the obligations assigned to him by the contract, if this contributed to the occurrence of material damage, may serve as grounds for reducing the amount of damage recovered from the employee or releasing him from financial liability.

Collective (team) financial liability is introduced when employees jointly perform certain types of work related to the storage, processing, sale (vacation), 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 conclude an individual agreement with him full compensation agreement.

The list of works, during the performance of which full collective (team) financial responsibility for the shortage of property entrusted to employees can be introduced, practically coincides with the list of works, during the performance of which an agreement on full individual financial responsibility is concluded with employees.

Under an agreement on collective liability, a predetermined group of workers (team) assumes responsibility for the shortage of valuables entrusted to it.

General provisions on the procedure for concluding an agreement on full collective liability are provided for in the standard form of such an agreement. In accordance with it, the recruitment of a newly created team (team) is carried out on the basis of the principle of voluntariness. The employer's decision to establish full collective (team) financial liability is formalized by order (instruction) of the employer and announced to the team (team). The employer's order (instruction) to establish full collective (team) financial liability is attached to the contract.

When new employees are included in the team (team), the opinion of the team (team) is taken into account.

Management of the team (team) is entrusted to the team leader (foreman).

The foreman is appointed by order (instruction) of the employer. In this case, the opinion of the team (team) is taken into account.

In the temporary absence of a foreman, his duties are assigned by the employer to one of the team members.

In the event of a change in the team leader (foreman) or when more than 50% of its original composition leaves the team (team), the contract must be re-signed. However, when individual workers leave the team (team) or new workers are admitted to the team (team), the contract is not re-signed, but in these cases, the date of his departure is indicated against the signature of the retired member of the team (team), and the newly hired employee signs the contract and indicates the date joining a team (team).

An agreement on full collective (team) financial responsibility must be signed by each member of the team. It defines the mutual rights and obligations of team members and the employer. In particular, the team (team) is obliged to:

treat the property entrusted to the team (team) with care and take measures to prevent damage;

in accordance with the established procedure, keep records, draw up and promptly submit reports on the movement and balances of the property entrusted to the team (team);

promptly notify the employer of all circumstances that threaten the safety of the property entrusted to the team (team).

In accordance with the contract, the employer is obligated to:

create for the team (team) the conditions necessary to ensure the complete safety of the property entrusted to it;

timely take measures to identify and eliminate the reasons that prevent the team from ensuring the safety of the entrusted property, identify specific persons responsible for causing damage, and bring them to responsibility established by law;

familiarize the team (team) with the legislation and other regulatory legal acts on the financial responsibility of employees, as well as the procedure for storage, processing, sale (vacation), transportation, use in the production process and other operations with the property transferred to it;

provide the team (team) with the conditions necessary for timely accounting and reporting on the movement and balances of the property entrusted to it, etc.

The basis for bringing the team to financial responsibility are the results of the inventory, which established the presence of damage.

The damage to be compensated is distributed among the team members in proportion to the monthly tariff rate (salary) and the actual time worked for the period from the last inventory to the day the damage was discovered.

A team member is exempt from compensation for damage if he proves that the damage was not caused through his fault, or specific culprits from among the team members are identified.

If damage occurs, team members can voluntarily compensate for the damage caused. In this case, by agreement between all members of the team and the employer, the degree of guilt of each individual member of the team (team) in causing the damage is established and, according to the degree of guilt, the amount to be recovered to compensate for the damage caused is determined.

If recovery of damage is carried out in court, the degree of guilt of each member of the team (team) in causing the damage is established by the court. When determining the amount of damage to be compensated by each employee, the court also takes into account the monthly tariff rate (official salary) of each person, the time that he actually worked as part of the team (team) for the period from the last inventory to the day the damage was discovered.

When considering a claim for compensation for damage by a team (team), the court also checks whether the employer has complied with the rules for establishing collective (team) financial liability provided for by law, as well as whether a claim has been brought against all members of the team (team) who worked during the period the damage occurred. If the claim is not brought against all members of the team (team), the court, based on Art. 43 of the Code of Civil Procedure, has the right, on its own initiative, to involve them in the case as third parties who do not make independent claims regarding the subject of the dispute, on the side of the defendant, since it depends on this correct definition individual responsibility of each member of the team (team) (clause 14 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 16, 2006 No. 52).

One-time documents for receiving valuables are usually issued in cases where it is not possible to perform this work by a person who has entered into an agreement on full individual financial responsibility. An employee whose duties do not include performing this type of work can be issued a one-time document to receive valuables only with his consent.

In case of intentional damage (clause 3, part 1, article 243 of the Labor Code). To bring to full financial liability on this basis, it is necessary to identify the form of the employee’s guilt in causing the damage. It is allowed if it is established that the damage was caused intentionally, that is, if there is guilt in the form of intent.

If the shortage of property entrusted to the employee, its damage or destruction occurred due to negligence, limited financial liability occurs within the limits of the average monthly salary.

The presence of intent in the actions (inaction) of the employee must be proven by the employer.

?

If damage is caused as a result of the employee’s criminal actions established by a court verdict (clause 5, part 1, article 243 of the Labor Code). In this case, we are talking about criminal actions established by a court verdict, and therefore cannot be the basis for bringing the employee to full financial responsibility, for example, initiating a criminal case against him, or carrying out investigative actions in this case, or removing the employee from work, etc.

An employee who was acquitted for lack of corpus delicti or the case was terminated on this basis at the preliminary investigation stage cannot be brought to full financial liability. At the same time, releasing the employee from criminal liability under an amnesty, due to the expiration of the statute of limitations and for other non-rehabilitative reasons, does not relieve him from full financial liability, since the criminal nature of the actions that caused the damage was established by the court verdict. This circumstance is specifically indicated in the Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 16, 2006 No. 52. It states: “Taking into account that the presence of a court conviction is a prerequisite for the possible bringing of an employee to full financial liability under paragraph 5 of part one of Article 243 of the Labor Code, termination criminal case at the stage of preliminary investigation or in court, including on non-rehabilitative grounds (in particular, due to the expiration of the statute of limitations for criminal prosecution, as a result of the amnesty act), or an acquittal by the court cannot serve as a basis for bringing a person to full justice material liability.

If a guilty verdict is passed against an employee, but as a result of the amnesty act he was fully or partially released from punishment, such employee may be held fully financially liable for damage caused to the employer on the basis of paragraph 5 of part one of Article 243 of the Labor Code, since there is an entered into a court verdict establishing the criminal nature of his actions into legal force.

The impossibility of bringing an employee to full financial liability under paragraph 5 of part one of Article 243 of the Labor Code does not exclude the employer’s right to demand from this employee full compensation for damage caused on other grounds.”

When the damage is caused as a result of an administrative violation, if such is established by the relevant government body (clause 6, part 1, article 243 of the Labor Code). An administrative offense (offence) is an unlawful, guilty action (inaction), for which administrative liability is provided in accordance with the Code of Administrative Offenses or the laws of the constituent entities of the Russian Federation on administrative offenses.

According to Art. 22.1 of the Administrative Code, cases of administrative offenses provided for by this Code are considered within the competence established by law: by judges (magistrates); commissions on affairs of minors and protection of their rights; federal executive authorities, their institutions, structural divisions and territorial bodies, as well as other government agencies, authorized to do so based on the tasks and functions assigned to them by federal laws or regulatory legal acts of the President of the Russian Federation or the Government of the Russian Federation.

Cases of administrative offenses provided for by the laws of the constituent entities of the Russian Federation are considered within the powers established by these laws: by justices of the peace; commissions on affairs of minors and protection of their rights; authorized bodies and institutions of executive authorities of the constituent entities of the Russian Federation; administrative commissions and other collegial bodies created in accordance with the laws of the constituent entities of the Russian Federation.

A decision of a court (magistrate) or a resolution of an authorized body to impose an administrative penalty for an employee committing an administrative offense, if as a result of this offense the employer suffered material damage, is the basis for bringing the employee to full financial liability.

Article 3.2 of the Code of Administrative Offenses provides for the following administrative penalties for committing administrative offenses: warning, administrative fine, forfeiture of the instrument or subject of an administrative offense, confiscation of the instrument or subject of an administrative offense, deprivation of a special right granted to an individual, administrative arrest, administrative deportation from the Russian Federation foreign citizen or stateless person, disqualification.

An employee who causes material damage to the employer as a result of an administrative offense shall compensate for this damage regardless of the type of administrative punishment applied to him, for example an administrative fine.

If an employee was released from administrative liability for committing an administrative offense due to its insignificance, about which, based on the results of the consideration of the administrative offense case, a decision was made to terminate the administrative offense proceedings, and the employee was given an oral reprimand, such employee may also be subject to be assigned financial liability in the full amount of the damage caused, since if the administrative offense is insignificant, the fact of its commission is established, and all the signs of the offense are identified and the person is released only from administrative punishment (Article 2.9, paragraph 2, paragraph 2, part 1 of Art. 29.9 Code of Administrative Offenses).

Since the expiration of the statute of limitations for bringing to administrative responsibility or the issuance of an amnesty act, if such an act eliminates the application of administrative punishment, is an unconditional basis excluding proceedings in the case of an administrative offense (clause 4, 6 of article 24.5 of the Code of Administrative Offences), in these situations the employee does not may be brought to full financial liability under clause 6, part 1, art. 243 of the Labor Code, however, this does not exclude the employer’s right to demand full compensation for damages from this employee on other grounds (clause 12 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 16, 2006 No. 52).

?

When the damage arose as a result of the employee’s disclosure of information constituting a secret protected by law (official, commercial or other) (clause 7, part 1, article 243 of the Labor Code). Disclosure of information constituting a secret protected by law is the basis for bringing the employee to full financial liability, provided that the employee’s obligation not to disclose this information is provided for in the employment contract concluded with him or an annex to it and if full financial liability for damage caused by the disclosure of such information, expressly provided for by federal law.

It should be emphasized that we can talk about compensation by the employee only for direct actual damage. ? If damage is caused while the employee is not performing his job duties (clause 8, part 1, article 243 of the Labor Code). Full financial liability occurs in this case, regardless of when such damage was caused: in

4.3. The list of cases of bringing employees to full financial liability, provided for in Art. 243 TC is exhaustive. This means that in all other cases of damage caused by an employee who is in an employment relationship with the employer, only limited financial liability arises.

^ 5. Determining the amount of damage caused to the employer depends on the nature of the offense that resulted in the damage, the form of guilt of the person causing the damage and the type of lost property.

? If the damage is caused as a result of loss or damage to property, the amount of damage is determined by actual losses, calculated on the basis of market prices prevailing in the area on the day the damage was caused. In cases where it is impossible to determine the day the damage was caused, the employer has the right to calculate the amount of damage as of the day it was discovered. At the same time, it should be borne in mind that if, during the consideration of the case in court, the amount of damage caused to the employer by loss or damage to property due to an increase or decrease in market prices changes, the court does not have the right to satisfy the employer’s demand for compensation by the employee for damages in larger size

or the employee’s demand for compensation for damage in a smaller amount than it was determined on the day it was caused (discovered), since the Labor Code of the Russian Federation does not provide for such a possibility (clause 13 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 16, 2006 No. 52).

The market price is the most probable price at which a given valuation object can be alienated on the open market in a competitive environment, when the parties act reasonably, having all the necessary information, and the transaction price is not affected by any extraordinary circumstances, i.e. When: ?

one of the parties to the transaction is not obliged to alienate the object of valuation, and the other party is not obliged to accept execution;

?

the parties to the transaction are well aware of the subject of the transaction and act in their own interests;

?

In cases where the amount of damage determined at market prices turns out to be lower than the value of lost or damaged property according to accounting data (taking into account the degree of depreciation of this property), the amount of damage is determined according to accounting data.

This is the most common way to determine the amount of damage.

If damage is caused to the employer by theft, intentional damage, shortage or loss of certain types of property and other valuables, federal law may establish a special procedure for determining the amount of damage to be recovered.

A special procedure for determining the amount of damage may be established by federal law in cases where the actual amount of damage caused exceeds its nominal amount. However, federal laws that would establish a special procedure for determining the amount of damage in these cases have not been adopted to date.

At the same time, Federal Law No. 3-FZ dated January 8, 1998 “On Narcotic Drugs and Psychotropic Substances” provides for financial liability of employees in multiple amounts for damage resulting from theft or shortage of narcotic drugs or psychotropic substances. In accordance with it, if the failure or improper performance by employees of their labor duties resulted in the theft or shortage of narcotic drugs or psychotropic substances, they bear financial liability in the amount of 100 times the amount of direct actual damage caused to a legal entity as a result of the theft or shortage of narcotic drugs or psychotropic substances. psychotropic substances (clause 6, article 59).

^ 6. The procedure for compensation for damage caused by an employee to the employer is established by Art. 247 and 248 TK. Conventionally, it can be divided into two stages. The first is to establish the circumstances (reasons) of the occurrence of damage and its size. The second includes the collection procedure itself.

At the first stage, before making a decision on compensation for damage by a specific employee, the employer is obliged to conduct a thorough check of the causes of damage and, depending on its results, determine the amount of damage (Part 1, Article 247). When conducting an inspection, the employer must establish whether the employee’s behavior was unlawful and he was guilty of causing damage, whether there are circumstances that exclude financial liability in this case, etc.

To clarify all these circumstances, the employer has the right to create a special commission with the involvement of relevant specialists in its work.

When determining the causes of damage, the commission is obliged to take into account the explanation of the employee who is held liable. An explanation from the employee must be received in writing. In cases where the employee refuses or evades providing the specified explanation, a corresponding act is drawn up.

The results of checking the cause of damage and determining its size must be documented, for example, an inventory report, a defect sheet, etc. The employee has the right to familiarize himself with all inspection materials personally or entrust this to his representative. If an employee does not agree with the results of the inspection, he has the right to appeal them.

The procedure for collecting the established amount of damage caused from the guilty employee depends on its size.

If the amount of damage caused does not exceed the employee’s average monthly earnings, recovery is made by order of the employer, i.e. in an indisputable manner. In this case, the employer’s order must be made no later than one month from the day when the amount of damage caused was finally determined. If the employer does not make an appropriate order within the specified period, he can recover from the employee the damage caused by him only in court.

Damage caused by an employee can only be recovered through legal proceedings in cases where the amount of damage to be recovered exceeds the employee’s average monthly earnings, and the employee has not agreed to voluntarily compensate for the damage caused to the employer.

If the employer, in violation of the established procedure for collecting damages, nevertheless made a deduction from the employee’s wages, then the employee has the right to appeal the employer’s actions in court. The court hearing a labor dispute based on an employee’s complaint makes a decision to return the illegally withheld amount to the employee.

An employee who pleads guilty to causing damage to the employer may voluntarily compensate for this damage in whole or in part. If the employer and employee have agreed to compensate the employee for damages by installments, then they must formalize such an agreement in writing. The written commitment given by the employee must indicate specific payment terms and amounts contributed by the employee to repay the damage within each specified period.

The employee’s written obligation to compensate for damages with installment payments remains valid even in the event of the employee’s dismissal. If a resigned employee refuses to compensate for the damage caused to the employer, the employer has the right to collect the outstanding debt in court.

^ 7. As a general rule, damage caused to the employer is compensated by the employee in cash. However, with the consent of the employer, the employee may transfer to him equivalent property to compensate for the damage caused. By agreement with the employer, the employee can also repair damaged property on his own or at his own expense. If the issue of compensation for damage is considered in court, then, as explained in the Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 16, 2006 No. 52, the question of the method of compensation for damage caused in cases where the employee wishes to transfer equivalent property to the plaintiff or repair damaged property as compensation for damage , is decided by the court based on the specific circumstances of the case and taking into account the rights and interests of both parties (clause 17).

The employee’s financial liability for damage caused to the employer occurs regardless of whether the employee is brought to disciplinary, administrative or criminal liability for the unlawful act that resulted in the damage (Part 6 of Article 248 of the Labor Code).

The labor dispute resolution body, when considering an employer's claim for the recovery of material damage from an employee, may, taking into account the form and degree of the employee's guilt in causing the damage and his financial situation, reduce the amount of damage to be recovered from the employee, but does not have the right to completely release the employee from such liability (Article . 250 TK). When assessing the financial situation of an employee, his property status (amount of earnings, other basic and additional income), his marital status (number of family members, presence of dependents, deductions under executive documents), etc. are taken into account (clause 16 of the Resolution of the Plenum of the Supreme Court RF dated November 16, 2006 No. 52).

The basis for reducing the amount of damage recovered from the employee may also be other specific circumstances in which this damage arose. For example, the conditions for storing property entrusted to the employee, the organization and working conditions of the employee who is the financially responsible person, etc. According to established practice, the court also takes into account what measures the employee took to prevent damage, whether he informed the employer about its possible occurrence, what measures have been taken by the employer to prevent damage.

The labor dispute resolution body has the right to reduce the amount of damages recovered both in cases where the employee has full financial liability and in cases where the employee bears only limited financial liability. A reduction in the amount of damages to be recovered is also possible in the case of collective (team) financial liability, but only after determining the amounts to be recovered from each member of the team (team), since the degree of guilt and specific circumstances for each member of the team (team) may be different (for example, active or indifferent attitude of the employee to preventing damage or reducing its size). It is necessary to take into account that a decrease in the amount of the penalty from one or more members of the team (team) cannot serve as a basis for a corresponding increase in the amount of the penalty from other members of the team (team) (clause 16 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 16, 2006 No. 52).

The Labor Code does not define any limits for reducing the amount of damage recovered from the employee. In this regard, this issue is resolved by the relevant authority in each specific case based on the actual circumstances of the case.

However, a reduction in the amount of damage is not allowed if the damage was caused by a crime committed for personal gain (Part 2 of Article 250 of the Labor Code).

^ 8. In cases provided for in Art. 249 of the Labor Code, the employee is obliged to reimburse the employer for the costs incurred by him in connection with his training at the expense of the employer. Such an obligation arises for an employee if the following mandatory conditions are present: 1)

the employee is sent for training by the employer; 2)

training was carried out at the expense of the employer;

3)

the employee quit his job before the expiration of the period stipulated by the employment contract or agreement on training the employee at the expense of the employer; 4)

the condition on the obligation of the employer to pay for training, and the employee to work for a certain period after training, is provided for in an employment contract or a special agreement on training, concluded in writing.

The initiative for training at the expense of the employer can come from both the employer and the employee himself. The condition on the employer’s obligation to pay for training, and the employee to work for a certain period after training, can be included in the employment contract when concluding it or formalized by a special agreement during the period of his work with this employer. The specific period that the employee must work after training is determined by agreement of the parties.

The legislation does not establish a list of reasons that would be recognized as valid for the dismissal of an employee before the expiration of the period stipulated by the parties.

According to established practice, such reasons include: illness or disability of an employee that prevents continuation of work, violation by the employer of labor legislation, a collective or labor agreement, illness of a child or other close family members, relocation of the husband (wife) to another area, etc. In each specific In this case, the validity of the reason for early dismissal from work is determined by the employer. However, if the employee does not agree with the assessment of the validity of the reason given by the employer, he can go to court. The question of whether the reason for dismissing an employee is valid before the expiration of the period stipulated by the parties can be decided by the court when considering the employer’s claim to recover from the employee the costs associated with the employee’s training.

When assessing the reasons for early termination of an employment contract, Art. 80 of the Labor Code, which classifies as valid reasons that determined the impossibility of continuing work, enrollment in an educational institution, retirement, established violation by the employer of labor legislation and other regulatory legal acts containing labor law norms, local regulations, the terms of a collective agreement, agreement or employment contract.

The obligation to reimburse, at the request of the employer, expenses related to training, including the stipend received during the apprenticeship, also arises for persons who have entered into an apprenticeship contract, if at the end of the apprenticeship they do not fulfill their obligations under the agreement without good reason, in particular, they do not start work (Article 207 of the Labor Code).

When considering the obligation of an employee who was trained at the expense of the employer and, without good reason, did not work after training for the period established by the employment contract or agreement, to reimburse the expenses incurred by the employer related to his training, it is necessary to proceed from the rules established by Art. 249 TK. According to this article, 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. Other rules may be established by the employment contract or training agreement. However, the general requirements enshrined in Part 2 of Art. 232 TK. In accordance with them, the contractual liability of the employer to the employee cannot be lower, and the employee to the employer - higher, than provided for by the Labor Code or other federal law.

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 breakdown of equipment, 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, an agreement is reached between the employee and the 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.