What is liability. The right of the employer to refuse to recover damages from the employee

The concept of liability under labor law, the conditions for the onset and its types

There is no definition in labor law liability. In part 1 of Art. 232 of the Labor Code of the Russian Federation establishes the obligation of a party to an employment contract to compensate for the damage caused by it to the other party to this contract.

parties to an employment contract comes for damage caused by it as a result of guilty unlawful behavior (action or inaction), unless otherwise provided by law (Article 233 of the Labor Code of the Russian Federation).

Guilty unlawful behavior in the labor process is a labor offense, a disciplinary offense. Consequently, material liability is directly related to a labor offense, a disciplinary offense, unless otherwise provided by law. It is a possible consequence of a disciplinary offense.

The party to the employment contract that suffered damage is not obliged under market economic conditions, but may demand compensation for damage (Article 240 of the Labor Code of the Russian Federation), which is quite widespread in practice, especially in cases where the amount of damage is small, insignificant. In other words, liability arises subject to the requirement of the injured party to the inflictor of damage to compensate for it. There is no potential, unrealized liability. Moreover, the legislator limits the time during which you can apply to the cause of material damage with a demand to compensate him (Article 248 of the Labor Code of the Russian Federation).

The obligation to compensate for damage on the part of the employment contract arises from the moment it is caused to the other party to the employment contract by virtue of the law (part 2 of article 21, part 2 of article 22 of the Labor Code of the Russian Federation). But material liability cannot be defined as an obligation of a party to an employment contract pre-established by law, since it occurs only after the demand of the injured party to compensate for the damage caused.

That is, terms of liability are:

labor offense, i.e. guilty unlawful behavior (action or inaction) of the parties to the employment contract;
causing damage to the property of a party to an employment contract;
the claim of the injured party to compensate for the damage caused to it.

From these positions material liability of the parties to the employment contract - this is a possible consequence of a labor offense, the exercise by the injured party of its right to demand compensation for the damage caused to it by the other party to the employment contract.

The commission of an offense is one of the conditions for the onset of material liability under labor law, which indicates its tortious nature. It only occurs between parties to an employment relationship and can be specified by them in an employment contract or agreements concluded in writing. Wherein contractual liability employer before the employee cannot be lower, and the employee before the employer - higher than provided by law (part 2 of article 232 of the Labor Code of the Russian Federation). This to a certain extent testifies to the contractual nature of liability. The existence of an employment contract, an agreement between the parties to an employment relationship should also be considered the conditions for the onset of material liability under labor law.

The legislator distinguishes between the types of material liability of the parties to the employment contract according to the subject composition and the amount of compensation for the damage caused.

By subject composition material liability is classified as the material liability of the employer (Articles 234-237 of the Labor Code of the Russian Federation) and the material liability of the employee (Articles 238-245 of the Labor Code of the Russian Federation), as well as individual and collective (team).

According to the amount of damage caused, a distinction is made between full (Article 242-245 of the Labor Code of the Russian Federation) and limited (Article 241 of the Labor Code of the Russian Federation) liability.

The liability of the employer

The employer, as a party to an employment contract that caused damage to the other party, is also obliged to compensate it in accordance with the Labor Code of the Russian Federation, and he must do this in full.

The liability of the employer to the employee is regulated by Ch. 38 of the Labor Code of the Russian Federation. In accordance with it, the onset of liability of the employer is possible in the following cases.

1. Compensation to the employee of material damage caused as a result of illegal deprivation of his opportunity to work.

Liability arises in the amount of the employee's average earnings for the entire period of his illegal suspension from work (in violation of Article 76 of the Labor Code of the Russian Federation), due to illegal transfer (in violation of Articles 72-74 of the Labor Code of the Russian Federation), due to illegal dismissal (in violation of the grounds of Art. 77-84 of the Labor Code of the Russian Federation and the procedure established by law), 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 in his previous job (in violation of art. 389, 396, 357 of the Labor Code of the Russian Federation), as well as in the event of a delay in the issuance of a work book (in violation of Article 62 of the Labor Code of the Russian Federation) or the inclusion in the work book of an incorrect or inconsistent wording of the reason for dismissal of a worker, which prevents employment.

2. Compensation for damage caused to the employee's property.

Damage caused by the employer to the property of the employee is compensated on the basis of Art. 235 of the Labor Code of the Russian Federation. The grounds for bringing the employer to liability under the named article include: damage to clothing in the performance of labor duties; loss of things from the wardrobe or in places designated for storage; loss or damage to other personal property, which, with the consent or knowledge of the employer, is used in the course of work. The damage is compensated in full. With the consent of the employee, the damage can be compensated in kind. The employer is obliged to consider the employee's application for damages and make a decision within ten days. If the employee disagrees with the decision of the employer, the employee has the right to go to court.

3. Compensation for non-pecuniary damage caused to an employee by unlawful actions (or inaction) of the employer.

The employer is obliged to compensate in cash for moral harm (Article 237 of the Labor Code of the Russian Federation) caused to the employee by illegal actions (for example, in the case of illegal transfer, illegal dismissal, in case of discrimination in the field of labor). Moral harm is physical and moral suffering caused by actions that violate the personal property rights of a citizen or encroach on other non-material benefits belonging to him. The amount of non-pecuniary damage must be determined by the parties to the employment contract. If the employer refuses to compensate moral damage voluntarily, the employee has the right to go to court. The presence or absence of property damage does not affect the employee's right to file a claim for compensation for moral damage.

4. Compensation for damage in case of violation of the established deadline for the payment of wages and other payments due to the employee.

In Art. 236 established the rules for the liability of the employer to the employee for the delay in the payment of wages. In this case, the employer is obliged to pay all the amounts due to the employee (wages, vacation pay, payments upon dismissal) with the payment of interest (monetary compensation) in the amount of not less than one three hundredth of the current refinancing rate of the Central Bank of the Russian Federation from the amounts not paid on time for each day of delay, starting from the next day after the due date of payment up to and including the day of actual settlement. The amount of compensation may be increased by a collective or labor agreement.

The presence or absence of the employer's fault in the delay in wages does not matter.

The accrual of interest due to late payment of wages does not exclude the right of the employee to index the amounts of delayed wages due to their depreciation due to inflationary processes, since such indexation is not an independent measure of the employer's responsibility, but a technical mechanism for restoring the purchasing power of money not received by the employee in a timely manner .

Previously, the employer also provided for the material liability of the employer for causing harm to an employee by injury, occupational disease or other damage to health associated with the performance of labor duties. Now this type of responsibility has been transferred to the plane of compulsory social insurance of employees, in accordance with the Federal Law of July 24, 1998 No. 125-FZ “On Compulsory Social Insurance against Industrial Accidents and Occupational Diseases”, and these relations already relate to another institution labor law (compulsory social insurance of employees), and the very compensation for harm to life and health is in the plane of social security law.

Grounds and conditions for the onset of material liability of employees

The material responsibility of the employee is expressed in his obligation to compensate for the damage caused to the employer by unlawful, guilty actions or inaction in the course of labor activity.

To bring an employee to liability, it is necessary to have the general conditions of liability discussed in the first paragraph.

Speaking of liability, of course, one should take into account the provisions of such an act of official interpretation as the decision of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52 “On the application by the courts of legislation governing the liability of employees for damage caused to the employer”.

An employee may be held liable not for any guilty, unlawful act or inaction, but only for that as a result of which property damage was caused to the employer.

The material liability of the employee occurs regardless of the fact that the employee is brought to disciplinary, administrative or criminal liability.

As a result of bringing an employee to liability, adverse moral and property consequences occur.

Article 238 of the Labor Code of the Russian Federation provides for the obligation of the employee to compensate the employer for the direct actual damage caused to him.

Direct actual damage is understood as a real decrease or deterioration in the condition of the employer's cash property (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs for the acquisition or restoration of property or to make excessive payments. We are talking about the property of the employer, owned by him on the basis of ownership (Article 209 of the Civil Code of the Russian Federation) or legally held by him: the right of economic management (Article 294 of the Civil Code of the Russian Federation), operational management (Article 296 of the Civil Code of the Russian Federation), under lease agreements (Article 606 of the Civil Code of the Russian Federation), storage (Article 886 of the Civil Code of the Russian Federation), etc.

An example of the cost of acquiring or restoring property is the purchase or repair of lost or damaged valuables.

Excessive payments may be penalties paid by the employer for failure to perform or improper performance of duties (for example, a fine for violation of consumer rights that occurred through the fault of the employee) That is, in fact, there is a transfer of responsibility from the employer, who is obliged to pay sanctions, to the employee, guilty of such sanctions. It should only be remembered that fines and penalties used as a way to ensure the fulfillment of obligations - a penalty, as a general rule (unless otherwise provided by a civil law contract), have a set-off character, which means that they are aimed at offsetting the damage caused. But in order for the fines and penalties paid to be assessed as the employer's expenses aimed at compensating for damage to third parties through the fault of the employee, it is necessary to recognize their creditable nature in court and establish the employer's obligation to compensate the counterparty for damage under a civil law contract, in an amount not less than than the penalty paid, as well as a causal relationship between the action or inaction of the employee and the arisen obligation to pay the penalty. Otherwise, the civil liability of the employer, in the amount of the amounts paid, cannot be recovered from the employee whose violations led to this liability of the employer.

A similar situation of the transfer of responsibility may be associated with the wages paid by the employer to the employee for the time of illegal deprivation of his opportunity to work, based on the decision of the body considering labor disputes. It can also be the amounts paid to the employee for delayed wages, and compensation for moral damage caused to him, which occurred as a result of illegal actions and orders of the head. Again, payments are made by the employer, but in a recourse order they are redirected to the manager responsible for the additional costs.

All employees, i.e., persons who are in labor relations with employers, regardless of their organizational and legal form, and also after dismissal for damage caused by them during the period of work, bear material liability in the amount of direct actual damage. The dismissal of an employee does not mean that he has ceased to be the subject of liability.

In Art. 239 of the Labor Code provides for circumstances excluding the liability of the employee.

Circumstances excluding material liability of an employee, the Labor Code includes:

irresistible force;
normal economic risk;
extreme necessity or necessary defense;
non-fulfillment by the employer of obligations to ensure proper conditions for the storage of property entrusted to the employee.

The current legislation has established that, as a general rule, for damage caused to the employer, the employee is liable in the amount of his average earnings. The amount of this earnings is determined by the day the damage is discovered. The calculation of average earnings is carried out according to the rules of Art. 139 of the Labor Code of the Russian Federation.

Employees bear material liability in the amount of their average monthly wage in the absence of grounds for imposing liability on them in full.

Full material liability may be assigned to an employee only in cases expressly provided for by law or on the basis of a material liability agreement signed in cases provided for by law.

Minors can be held fully liable only in certain cases, these are:

if damage to the property of the employer is caused by them intentionally;
if the damage was caused in a state of narcotic, toxic or alcoholic intoxication;
if the damage was caused as a result of a crime or administrative offense committed by a minor.

The agreement on material liability with minor employees is not concluded.

In all other cases, minors bear material liability in an amount not exceeding their average earnings.

For adult workers, the Labor Code of the Russian Federation defines in Art. 243 is an exhaustive list of cases of full liability of an employee, regardless of whether he signed an agreement on full liability or not.

The employee is fully liable in the following cases.

1. If, in accordance with the Labor Code or another (/deral law), the employee is entrusted with full financial responsibility.

So, in full, in accordance with Art. 277 of the Labor Code of the Russian Federation, the head of the organization bears material responsibility.

In accordance with Art. 68 of the Federal Law of 07.07.2003 No. 126-FZ “On Communications” 1 employees of telecom operators are liable to their employers for the loss or delay in the delivery of all types of postal and telegraphic items, damage to the attachments of postal items that occurred through their fault during the execution by them of official duties, in the amount of the declared value (i.e., in full), unless another measure of responsibility is provided for by the relevant federal law.

2. Lack of valuables entrusted to the employee on the basis of a special written agreement or received by him under a one-time document.

Written agreements on full individual or collective (team) liability, i.e. on compensation to the employer for damage caused in full for the lack of property entrusted to employees, are concluded with employees who have reached the age of eighteen years and directly serve or use monetary, commodity values or other property (Articles 244, 245 of the Labor Code of the Russian Federation). The list of positions and works to be replaced or performed by employees, with whom the employer can conclude written agreements on full individual liability for the shortage of entrusted property, was approved by the Decree of the Ministry of Labor and Social Development of the Russian Federation of December 31, 2002 No. 85. The same decree approved standard forms of agreements on full liability.

The employee bears full financial responsibility for the lack of material assets received by him under a one-time power of attorney or other one-time documents. Of course, it is impossible to receive material assets without the consent of the employee, in addition, the administration, before issuing a one-time power of attorney or other similar document to the employee, must familiarize him with the rules for accepting and storing material assets, as well as create all the necessary conditions to ensure that the employee performs the task without prejudice to received or entrusted material values.

For the application of liability for shortages, the form of fault is not essential. The very fact that the employee does not have the values entrusted to him is important. In this case, the shortage must be established realistically and recorded by the relevant documents.

3. Intentional damage.

In this case, the direction of intent matters. When performing these actions, the employee must be aware of their unlawfulness, foresee the possibility or inevitability of property damage, and also desire the onset of such consequences or consciously allow the possibility of their occurrence or be indifferent to them. Such actions of an employee may entail not only full liability, but also the dismissal of senior employees in accordance with paragraph 10 of Art. 81 of the Labor Code of the Russian Federation.

4. Causing damage while under the influence of alcohol, drugs or toxic substances.

Such a condition refers to circumstances aggravating the fault of the employee in accordance with criminal and administrative legislation. Full liability in case of damage caused while intoxicated occurs regardless of whether the employee's intent was to cause damage or the damage was caused by negligence. This is due to the fact that the very fact of appearing at work in a state of intoxication is a gross violation of labor discipline. The fact that the employee is in a state of alcoholic, toxic or drug intoxication must be established. It is advisable to send the employee for a drug test. If for some reason this is not possible, then it is necessary to draw up an act in which all the signs of the corresponding intoxication are described in detail.

5. Causing damage as a result of the criminal actions of the employee.

The fact of causing damage and the guilt of the person who caused the damage must be established by a court verdict. Therefore, it cannot be the basis for bringing the employee to full financial responsibility, for example, the initiation of a criminal case against him, or the production of investigative actions in this case, or the removal of the employee from work, etc.

An employee who has been acquitted due to lack of corpus delicti or the case has been terminated on this basis at the stage of preliminary investigation cannot be brought to full liability.

Considering that the presence of a guilty verdict of the court is a prerequisite for the possible bringing of the employee to full liability under paragraph 5 of part 1 of Art. 243 of the Labor Code of the Russian Federation, the termination of a criminal case at the stage of preliminary investigation or in court, including on non-rehabilitating grounds (in particular, in connection with the expiration of the statute of limitations for criminal prosecution, as a result of an amnesty act), or the passing of an acquittal by the court cannot serve as a basis for bringing a person to full liability.

If a guilty verdict was passed against an employee, however, as a result of an amnesty act, he was completely or partially released from punishment, such an employee may be held fully liable for damage caused to the employer, on the basis of paragraph 5 of part 1 of Art. 243 of the Labor Code of the Russian Federation, since there is a court verdict that has entered into legal force, which establishes the criminal nature of his actions.

6. Causing damage as a result of an administrative offense, if such is established by the relevant state body.

An administrative offense (offence) is an unlawful guilty action (inaction), for which, in accordance with the Code of the Russian Federation on Administrative Offenses or the laws of the constituent entities of the Russian Federation on administrative offenses, administrative liability is provided. The list of bodies authorized to consider cases of administrative offenses is determined by the Code of the Russian Federation on Administrative Offenses or the laws of the constituent entities of the Russian Federation on administrative offenses. With this in mind, the employee may be held fully liable if, based on the results of the consideration of the case of an administrative offense, a judge, body, official authorized to consider cases of administrative offenses, a decision was made to impose an administrative penalty, since in this case the fact that a person committed an administrative offense has been established.

If an employee was released from administrative responsibility for committing an administrative offense due to its insignificance, which, based on the results of the consideration of the case on an administrative offense, a decision was made to terminate the proceedings on the case of an administrative offense, and an oral reprimand was announced to the employee, such an employee may also be imposed material liability in full amount of the damage caused, since with the insignificance of an administrative offense, the fact of its commission is established, as well as all the signs of the offense are revealed and the person is released only from administrative punishment.

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 an administrative penalty, are an unconditional basis excluding proceedings in a case of an administrative offense (clauses 4, 6, article 24.5 of the Code of the Russian Federation on Administrative Offenses), in these situations, the employee cannot be held fully liable under clause 6, part 1, sec. 243 of the Labor Code of the Russian Federation, however, this does not exclude the right of the employer to demand compensation from this employee for damages in full on other grounds.

7. Causing damage by disclosure of information constituting a legally protected secret.

The obligation to keep official and commercial secrets rests with the employee if this is provided for by the employment contract. Information constitutes an official or commercial secret in the case when the information has actual or potential commercial value due to its unknownness to third parties, there is no free access to it on a legal basis, and the owner of the information takes measures to protect its confidentiality. The list of information that cannot constitute a commercial secret is established by the Decree of the Government of the RSFSR dated December 5, 1991 No. 35 “On the list of information that cannot constitute a commercial secret”.

In accordance with the said resolution, the commercial secret of an enterprise and an entrepreneur cannot be:

constituent documents (decision on the establishment of an enterprise or an agreement of founders) and the Charter;
documents giving the right to engage in entrepreneurial activity (documents confirming the fact of making entries about legal entities in the Unified State Register
legal entities, certificates of state registration of individual entrepreneurs, licenses, patents);
information on the established forms of reporting on financial and economic activities and other information necessary to verify the correctness of the calculation and payment of taxes and other obligatory payments to the state budget system;
and other information established by law.

At the enterprise, the list of information constituting a secret protected by law must be determined by an order for the enterprise, which must be brought to the attention of the employee against signature. The absence in the employment contract of the obligation of the employee not to disclose secrets protected by law and non-compliance with the requirements listed above will make it impossible to bring the employee to full liability on this basis.

In addition, state secrets, personal data and other confidential information are also protected by law.

It should be emphasized that in all cases of bringing an employee to full liability, we can only talk about compensation for direct actual damage, because the recovery of lost income (lost profit) from the employee (including the head, his deputy, the chief accountant of the organization) labor legislation does not provides. And the disclosure of trade secrets is more often associated with a decrease in the likelihood of making a profit due to the fact that this information may become known to competitors.

8. If the damage was caused not in the performance of the employee's duties.

Full liability arises in this case, regardless of when such damage is caused: during working hours, after it ends or before work begins. When determining the amount of material damage caused by workers and employees by the unauthorized use for personal purposes of technical means during non-working hours belonging to enterprises, institutions, organizations with which they have labor relations, one should proceed from the fact that such damage as caused not in the performance of labor (official) duties may be subject to compensation using the norms of civil law. In these cases, the damage is compensated in full, including income not received by the enterprise, institution, organization from the use of technical means. Perhaps this is due to the fact that when the employee is not performing his labor duties, the employer is not bound by labor relations and the damage is of a civil law nature, and the seizure of property is comparable to the theft of a vehicle without the purpose of theft. But other circumstances, for example, the possibility for an employee to use the property of the employer for personal purposes during working hours, is also considered as causing damage not in the performance of duties, but since the damage is caused by the employee during working hours, liability should arise according to the rules of labor legislation, i.e. with . excluding lost income.

According to Art. 243 of the Labor Code of the Russian Federation, liability in the full amount of damage caused to the employer can be established by an employment contract concluded with the head of the organization, deputy heads, chief accountant. This is quite justified, since executives are endowed with great powers and manage the material resources of the organization. They must also bear higher responsibility, including material. In accordance with Art. 277 of the Labor Code of the Russian Federation, the head of the organization bears full liability for direct actual damage caused to the organization.

Liability for damage caused to the employer (organization, enterprise, institution and individual entrepreneur) can be borne by any employee - both an ordinary employee and a manager. The fundamental legislative act that determines the obligation of the employee to compensate for the damage caused to the employer is the Labor Code of the Russian Federation, which in Ch. 39 "The material liability of the employee" establishes what kind of damage is subject to compensation and under what conditions the employee is obliged to compensate for this damage. In addition, the Labor Code of the Russian Federation defines the limits and procedure for recovering damages, provides for guarantees when imposing liability on an employee, as well as the right of the employer to refuse to recover damages. Knowledge of the provisions of the Labor Code of the Russian Federation will allow the heads of organizations and individual entrepreneurs to correctly determine the cases of application of one or another type of liability, its limits, as well as the guilt of a particular employee (employees) on whom it is assigned.

According to Part 1 of Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate for the direct actual damage that he caused to the employer.

Liability for damage caused to the employer is assigned to the employee only if the damage was caused through his fault. Only those employees with whom a written agreement on full liability has been indemnified in full. Responsibility for the damage caused is not removed from the employee even after the termination of the employment relationship, if the damage was caused during the validity of the employment contract. Liability implies the deduction of funds from the employee to compensate for the material damage caused to him in the manner and amount established by the Labor Code of the Russian Federation. When determining the amount of damage, only direct actual damage is taken into account and the lost income that the employer could have received, but did not receive as a result of the illegal actions of the employee, is not taken into account. lost profit. Direct actual damage is understood as a real decrease (deterioration) of the employer's cash property (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs for the restoration or acquisition of property.

The amount of damage is calculated on the basis of market prices in force in the area on the day the damage was caused. But it cannot be lower than the residual value of the lost or damaged property according to accounting data. When determining damage, actual losses within the established norms of natural loss are not taken into account.

Material damage is not recovered from the employee if it arose as a result of force majeure - an extraordinary and unavoidable event, the elimination of a danger threatening a person, due to necessary defense. Liability also does not arise if the employer himself fails to fulfill his obligations to ensure proper conditions for the storage of property entrusted to the employee (Article 239 of the Labor Code of the Russian Federation). Thus, labor legislation expressly provides that an employee can be considered guilty of causing damage if his actions are committed intentionally or through negligence, i.e. illegal. Particular attention should be paid to the provision of art. 240 of the Labor Code of the Russian Federation, which provides for the right of the employer, at its discretion, to decide on the issue of bringing the employee to liability: to recover from him the cost of damage or to completely or partially refuse to recover from the guilty employee the damage caused by him.

In the event that the employer decides to recover from the employee the damage caused by him, then his compensation is made in the amount of two types of material liability provided for by labor legislation - limited and full (Articles 241, 242 of the Labor Code of the Russian Federation).

In case of limited material liability, the damage is compensated in the amount not exceeding the average monthly earnings of the employee. That is, the smaller of the two amounts is selected: if the damage is less than the salary, it will be fully reimbursed. If the salary is less than the damage, an amount equal to the salary is recovered, i.e. part of the damage will not be reimbursed. And this is a general rule. Full material liability is an exception and is possible only for those employees who directly serve or use monetary, commodity values or other property. With full liability, the damage is compensated without any restrictions, but this type of liability can be applied only in cases provided for in Art. 243 of the Labor Code of the Russian Federation:

when, in accordance with the Labor Code of the Russian Federation or other federal laws, the employee is held liable in full for damage caused to the employer in the performance of labor duties by the employee;
shortage of valuables entrusted to the employee on the basis of a special written agreement or received by him under a one-time document;
causing damage in a state of alcoholic, narcotic or toxic intoxication;
disclosure of information constituting a legally protected secret (official, commercial or other), in cases provided for by federal laws;

Persons under the age of 18 can only be fully liable for intentionally causing damage while under the influence of alcohol, drugs or toxic substances, as well as for damage caused as a result of a crime or administrative offense (for example, in case of criminal liability for theft).

When accepting employees for certain positions or work related to the maintenance of monetary, commodity values, the heads of organizations (individual entrepreneurs) must conclude agreements with them on full individual or collective (team) liability (part 1 of article 244 of the Labor Code of the Russian Federation). If material liability is established by federal law, then in this case it is not required to conclude an agreement on full material liability.

Decree of the Ministry of Labor and Social Development of the Russian Federation dated December 31, 2002 No. 85 approved the Lists of positions and works replaced or performed by employees with whom the employer can conclude written agreements on full individual or collective (team) liability (hereinafter - the Lists), as well as Standard forms of agreements on full liability. Employers should be guided by the Lists when concluding agreements on full liability, both individual and collective. Collective (brigade) full liability for causing damage to the employer is provided for in Art. 245 of the Labor Code of the Russian Federation. Contracts can be concluded in organizations of any organizational and legal forms and forms of ownership. Agreements on full liability may be concluded with the employees specified in the Lists, subject to the obligatory presence of the following conditions:

achievement by the employee of 18 years of age;
direct transfer of monetary, commodity values or other property for storage, processing, sale (vacation), transportation or use in the production process, i.e. for service or use.

Lists of positions and works replaced or performed by employees with whom the employer can conclude written agreements on full liability for the shortage of entrusted property are not subject to extended interpretation. When combining professions (positions), an agreement may be concluded with an employee if the main or combined profession (position) is provided for in the Lists. An agreement on full liability concluded with an employee whose position (job) is not in the Lists has no legal force.

An employee who has entered into an agreement on full liability with a private entrepreneur is fully responsible for ensuring the safety of those values that he personally received according to an invoice or other accounting document, despite the fact that in some cases other persons also have access to these values (for example, , auxiliary workers).

An agreement on full liability is concluded with an employee on the basis of an employment contract and an order in a standard form approved by the Decree of the Ministry of Labor and Social Development of the Russian Federation of December 31, 2002 No. 85. It specifies the obligations of the employee and the employer to ensure the safety of valuables. Failure by the employer to fulfill the obligations to ensure proper conditions for the storage of property entrusted to the employee is the basis for relieving the employee from liability, and in appropriate cases, for imposing the obligation to compensate for the damage on the guilty manager, his deputy or chief accountant.

The contract between the manager and the employee is drawn up and signed by the parties in two copies, one of which is with the administration, the second - with the employee. A prerequisite for the validity of the contract is the date of its conclusion, since from that moment the contract enters into force, and the employee becomes liable for the failure to preserve the values entrusted to him. For the shortage formed before the transfer of values, the employee is not responsible. In the absence of the date of conclusion of the contract, the latter is considered invalid.

The effect of the concluded agreement on full liability extends to the entire time of work with the material assets entrusted to the employee. A financially responsible employee, in accordance with the contract, must promptly report all circumstances that threaten the safety of the property entrusted to him, keep records, draw up and submit to the accounting department commodity-money and other reports on the balance and movement of the property entrusted to him (commodity reports). At enterprises where commodity reports are not kept, transactions of the movement of values are recorded in the accounting registers of the accounting department according to primary documents submitted by financially responsible persons.

A financially responsible person must participate in the inventory of the values entrusted to him, and the administration of the employer company is obliged to create conditions for the employee for normal work and ensure the complete safety of the values \u200b\u200bentrusted to him, to acquaint him with the current legislation on liability, as well as other regulations on the procedure for storing, receiving , processing, selling, dispensing, transporting and other transactions with valuables.

The employee is not liable if the damage from the shortage or damage to valuables occurred through no fault of his. This condition must be specified in the contract. In addition, this agreement provides for full liability only for the shortage and damage to valuables. In all other cases, the damage is compensated in accordance with the provisions of the Labor Code of the Russian Federation on limited liability.

About full financial responsibility

To begin with, let's define what full liability is in accordance with the norms of the Labor Code of the Russian Federation. General provisions on the liability of employees to the employer are contained in Ch. 39 of the Labor Code of the Russian Federation.

According to Art. 242 of the Labor Code of the Russian Federation, the full liability of the employee consists in his obligation to compensate the direct actual damage caused to the employer in full.

Article 243. Cases of full liability

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

when, in accordance with this Code or other federal laws, the employee is held liable in full for damage caused to the employer in the performance of labor duties by the employee;
shortage of valuables entrusted to him on the basis of a special written agreement or received by him under a one-time document;
intentional damage;
causing damage in a state of alcoholic, narcotic or other toxic intoxication;
causing damage as a result of the employee's criminal actions established by a court verdict;
causing damage as a result of an administrative offense, if such is established by the relevant state body;
disclosure of information constituting a legally protected secret (state, official, commercial or other), in cases provided for by federal laws;
causing damage not in the performance of work duties by the employee.

In order for the employer to be able to competently convict the employee of causing material damage to him, he needs to prove a number of circumstances:

wrongfulness of behavior (action or inaction) of the causer of material damage;
the fault of the employee in causing damage;
the presence of direct actual damage;
the amount of material damage caused;
compliance with the rules for concluding an agreement on full (individual or collective (team)) liability.

According to Art. 244 of the Labor Code of the Russian Federation, written agreements on full individual or collective (team) liability may be concluded with employees who have reached the age of 18 and directly serve or use monetary, commodity values or other property. The lists of works and categories of employees with whom these contracts may be concluded, as well as the standard forms of these contracts, are approved in the manner established by the Government of the Russian Federation.

The employee, pursuant to Art. 238 of the Labor Code of the Russian Federation, is obliged to compensate the employer only for the direct actual damage caused to him. Unreceived income (lost profit) is not subject to recovery from the employee.

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

In addition, Art. 239 of the Labor Code of the Russian Federation establishes a number of circumstances that exclude the liability of an employee:

the occurrence of damage due to force majeure, normal economic risk, extreme necessity or necessary defense;
non-fulfillment by the employer of the obligation to ensure proper conditions for the storage of property entrusted to the employee.

Limitation of deductions from wages

Compliance with the procedure for bringing an employee to liability involves recovering from the guilty employee, in the absence of his consent, the amount of damage caused, not exceeding the average monthly salary (by order of the employer, which can be done within the period established by the Labor Code of the Russian Federation). In this case, the restrictions on the amount of deductions from wages established by Art. 138 of the Labor Code of the Russian Federation.

Extract from the Labor Code of the Russian Federation

Article 138. Limitation of the amount of deductions from wages

The total amount of all deductions for each payment of wages may not exceed 20 percent, and in cases provided for by federal laws, 50 percent of the wages due to the employee.

When deducting from wages under several executive documents, the employee must in any case be retained 50 percent of wages.

The restrictions established by this article do not apply to deductions from wages when serving corrective labor, collecting alimony for minor children, compensating for harm caused to the health of another person, compensating for harm to persons who have suffered damage due to the death of a breadwinner, and compensating for damage caused by a crime. . The amount of deductions from wages in these cases cannot exceed 70 percent.

Article 248. Procedure for recovery of damage

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

The above approach is of general importance, and therefore it is used when bringing to liability any employee with whom an agreement on full individual liability has been drawn up.

Violation of these rules is sufficient grounds to recognize the employer's decision to hold the employee liable as unlawful.

The employee did not fulfill his duties

Consider a special case from judicial practice on the full individual liability of an employee in the position of cashier-controller of a large store.

So, an employee (plaintiff), working in an LLC (defendant) as a cashier-controller, filed a lawsuit against her employer about illegal, in her opinion, deduction of a sum of money from her salary.

Respondent's position

The representative of the employer explained in court this deduction from the employee's wages. The plaintiff has been working in the LLC as a cashier-controller for more than a year; an agreement was concluded with her on full individual liability.

Counterfeit banknotes were found while depositing the proceeds with the bank. On this basis, the employer, in the presence of an agreement with the cashier-controller on full individual liability, has the full right to withhold from the wages of the delinquent employee the amount of the shortage that arose due to the presence of counterfeit banknotes in the proceeds handed over to the bank, if the employee's job description provides for the obligation to check the solvency of banknotes. Such a job description is available and signed by the employee (the employer submitted his copy for consideration during the court session).

In accordance with the requirements of paragraph 5 h. 2 Article. 22 of the Labor Code of the Russian Federation, the employer provided the employee with special technical means for monitoring the authenticity of banknotes in order to exclude the possibility of accepting counterfeit banknotes.

Justification of the position of the court

According to Art. 233 of the Labor Code of the Russian Federation, the liability of a party to an employment contract arises as a general rule for damage caused by it to the other party to this contract as a result of its guilty unlawful behavior (action or inaction), unless otherwise provided by the Labor Code of the Russian Federation or other federal laws. Each of the parties to the employment contract is obliged to prove the amount of damage caused to it.

In order to recover damages from an employee, the employer is obliged, first of all, to establish:

unlawfulness of the behavior (action or inaction) of the tortfeasor;
the presence of direct actual damage and its size;
a causal relationship between the employee's behavior and the resulting damage;
the absence of circumstances excluding the liability of the employee.

At the same time, the court proceeds from the fact that the legitimacy of concluding an agreement with the employee on full liability and the presence of a shortage, confirmed by the employer, relieve the latter from the need to prove the guilt of the employee.

However, this does not mean that the employee's failure to provide evidence of his innocence in causing damage to the employer necessarily indicates his guilty behavior. Sometimes the fact that the employee is not at fault can be established solely on the basis of evidence provided by the employer.

For example, the court refused to satisfy the claim for the recovery of shortage, since the plaintiff did not establish the cause of the shortage, and did not provide evidence of the defendant's guilt in this. In addition, there were no legal grounds for imposing material liability on the defendant due to the plaintiff's failure to comply with the provisions of Art. 247 of the Labor Code of the Russian Federation (before making a decision on compensation for damage by specific employees, the employer is obliged to conduct an audit to determine the amount of damage caused and the reasons for its occurrence). To conduct such an inspection, the employer has the right to create a commission with the participation of relevant specialists.

Requesting a written explanation from the employee to establish the cause of the damage is mandatory. In case of refusal or evasion of the employee to provide the specified explanation, an appropriate act is drawn up, signed by several employees of the company, including the immediate supervisor.

In this case, in order to deduct from the salary of the cashier-controller, who bears full individual financial responsibility on the basis of the relevant written contract, as well as the signed job description, the amount of the shortfall resulting from the presence of counterfeit banknotes in the proceeds, the employer must comply with the specified procedure for compensation for damage and establish specified legally significant circumstances.

In doing so, the following should be kept in mind when making this decision.

The qualification directory of positions of managers, specialists and other employees does not include the duty to check the solvency of banknotes in the labor function of a cashier-controller. The Regulations on the procedure for conducting cash transactions with banknotes and coins of the Bank of Russia on the territory of the Russian Federation do not establish such requirements either.

At the same time, the illegality of the employee's behavior lies in the failure to perform or improper performance of official duties, which are prescribed in the job description and signed by the employee.

In this regard, in order to recognize the employee's behavior as unlawful, the employer must provide evidence that this or that duty was part of the employee's labor function and was provided for by his job description. The absence of such confirmation does not allow the employer to compensate for the damage caused at the expense of the employee.

Thus, in order to withhold from the cashier the amount of the shortage that arose due to the presence of counterfeit banknotes in the proceeds, it is necessary that the obligation to check the solvency of banknotes is included in the employee’s labor function and is provided for by his job description, with which he must be familiarized with signature.

This circumstance, in turn, obliges the employer to provide the employee with technical means of monitoring the authenticity of banknotes (paragraph 5 of part 2 of article 22 of the Labor Code of the Russian Federation indicates that the employer is obliged to provide employees with equipment, tools, technical documentation and other means necessary for the execution their job duties).

Non-fulfillment or improper fulfillment of this provision excludes the material liability of employees, in particular, the plaintiff (cashier-controller).

Court statement

The claims of the employee (the cashier-controller of the LLC) were denied. In this case, the employer really has the right to withhold from the cashier-controller the amount of the shortage that arose due to the presence of counterfeit banknotes in the proceeds handed over to the bank.

The employer was able to prove in court that the obligation to check the solvency of banknotes was part of the employee's labor function and was provided for by his job description.

At the same time, the employer was able to fully comply with the correct procedure for bringing the employee to liability and establish all legally significant circumstances.

The amount of material damage must be withheld subject to the restrictions established by Art. 138 of the Labor Code of the Russian Federation.

Damage in the form of an administrative fine received through the fault of an employee

Consider another example from judicial practice regarding liability, but in this case we will talk about the claim of the employer against the employee.

Claimant's position

The employer (LLC) filed a lawsuit against his employee to recover material damage from him. The employer motivated his claims by the fact that the company was brought to administrative responsibility for committing an administrative offense through the fault of the employee.

The plaintiff considered that the material damage suffered by the company in the form of an administrative fine was caused as a result of improper performance of labor duties by the administrator of the grocery store. The duties of this employee, according to the job description signed by him, include compliance with the deadlines for the sale of goods. He signed an agreement on full liability.

Justification of the position of the court

According to paragraph 6 of part 1 of Art. 243 of the Labor Code of the Russian Federation, full liability may arise in the event of damage as a result of an administrative offense, if such is established by the relevant state body.

If the employee was released from administrative responsibility for committing an administrative offense due to its insignificance, about which a decision was issued based on the results of the consideration of the case, and an oral remark was announced to the employee, then he may be held fully liable with compensation for the damage caused, since even with the insignificance of an administrative offense, the fact of its commission is established by the court, and all signs of the offense are revealed, and the employee is released only from administrative punishment (Articles 2.9, 29.9 of the Code of Administrative Offenses of the Russian Federation (CAO RF)).

An employee who has concluded an agreement on material liability with the employer cannot be held fully liable for damage in the form of an administrative fine imposed on the organization.

Court statement

The court established the fact that the defendant really works in the LLC as an administrator of a grocery store and, according to the job description, his duties include compliance with the deadlines for the sale of goods. Based on the results of the audit, it turned out that the indicated store sold food products with an expired shelf life.

In this regard, the LLC was found guilty of committing an administrative offense under Part 2 of Art. 14.4 of the Code of Administrative Offenses of the Russian Federation, he was given an administrative penalty in the form of a fine, which was paid within the time limits established by law.

During the court session, the employee partially admitted his guilt and did not deny the fact that expired goods were on free sale. Since a legal entity was brought to administrative responsibility and the fine was collected from it, the court concluded that the defendant could not be held liable in the full amount of the damage caused (the amount of the administrative fine), since the defendant is an individual and in relation to different amounts of penalties are applied to it than to legal entities.

The court ruled that the defendant be held liable in the amount of his average monthly earnings.

The above examples from judicial practice indicate that it is necessary to carefully study all the circumstances of the material damage caused by the employee. An employer must properly prepare for a court hearing before filing a claim.

Typical violations when concluding agreements on full liability on the part of employers and employees

Conclusion of agreements on full liability with minors

Common violations in practice are cases of illegal conclusion of agreements on full liability with minors, whose work is not directly related to the maintenance of inventory items (for example, with assistant secretaries).

In accordance with Art. 242 of the Labor Code of the Russian Federation, employees under the age of eighteen are fully liable only for intentionally causing damage, for damage caused in a state of alcoholic, narcotic or toxic intoxication, as well as for damage caused as a result of a crime or administrative offense.

According to Art. 244 of the Labor Code of the Russian Federation, written agreements on full individual or collective (team) liability, i.e. on compensation to the employer of the damage caused in full for the lack of property entrusted to employees, are concluded with employees who have reached the age of eighteen years and directly serve or use monetary, commodity values and other property.

Thus, taking into account the above provisions of labor legislation, it should be noted that the conclusion of agreements with minors on full liability for the use and preservation of, for example, office equipment, is illegal and, accordingly, such agreements are invalid. In this regard, employees can apply to the legal labor inspectorate with a statement about the violation of their labor rights.

The employee refuses to conclude an agreement on full liability

Article 244 of the Labor Code of the Russian Federation establishes the conditions under which agreements on full liability are concluded. Paragraph 36 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” clarifies a number of issues that arise in the event of an employee’s refusal to conclude agreements on full liability. And here you need to pay attention to the following:

when resolving disputes arising in connection with the application of disciplinary measures to employees who refused to conclude a written agreement on full liability for the shortage of property entrusted to employees in the event that it was not simultaneously concluded with an employment contract, it is necessary to proceed from the fact that, if the fulfillment of obligations for the maintenance of material assets is the main labor function of the employee, which is agreed upon when hiring, and in accordance with the current legislation, an agreement on full material liability can be concluded with him, which the employee knew about, refusal to conclude such an agreement should be considered as non-fulfillment labor duties with all the ensuing consequences;
if the need to conclude an agreement on full liability arose after the conclusion of an employment contract with an employee and is due to the fact that, due to a change in the current legislation, the position held by him or the work performed is included in the List of positions and works replaced or performed by employees with whom the employer can conclude written agreements on full liability, however, the employee refuses to conclude such an agreement, the employer, by virtue of Part 3 of Art. 73 of the Labor Code of the Russian Federation is obliged to offer him another job, and in the absence of it or the employee’s refusal from the proposed job, the employment contract is terminated with him in accordance with paragraph 7 of Art. 77 of the Labor Code of the Russian Federation "Refusal of the employee to continue work in connection with a change in the essential conditions of the employment contract."

A commercial organization engages individuals under work contracts to perform certain works and at the same time requires them to conclude agreements on full liability

As follows from Art. 243 and 244 of the Labor Code of the Russian Federation, liability in the full amount of the damage caused is assigned to the employee in the performance of his labor duties. According to Art. 11 of the Labor Code of the Russian Federation, laws and other regulatory legal acts containing labor law norms do not apply to individuals working under civil law contracts.

Thus, there are no legal grounds for concluding agreements on full liability with the above individuals in such a situation. At the same time, within the framework of the Civil Code of the Russian Federation, the organization may include in the contract with the specified persons provisions providing for responsibility for the safety of material assets belonging to the organization.

An employee working in a warehouse of a large store and having access to material values refuses to conclude an agreement on full liability

In accordance with Art. 244 of the Labor Code of the Russian Federation, written agreements on full liability are concluded with employees, in addition to other conditions, also in the case of direct maintenance or use of monetary, commodity values and other property.

The lists of positions and works replaced or performed by employees with whom the employer can conclude written agreements on full individual or collective (team) liability, as well as standard forms of contracts on full liability, were approved by the Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85. In accordance with the specified Lists, the employer may conclude written agreements on full individual liability if the organization employs, in particular, procurement and (or) supply agents, transportation forwarders and other employees who receive, procure, store, record, issue , transportation of material values. Thus, the employer has the right to conclude agreements with the above employees on full liability.

As already mentioned, with regard to the refusal of employees to conclude agreements on full liability, one should keep in mind paragraph 36 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2.

The organization concludes an agreement on full liability with the watchman for the property protected by him

As follows from Art. 244 of the Labor Code of the Russian Federation, in order to conclude an agreement on full liability, in addition to other conditions, it is also required that the agreement be concluded with employees directly serving monetary or commodity values. Therefore, contracts should not be concluded, for example, with watchmen, since they do not directly serve these values.

An exemplary contract with an employee on full individual liability.

As Appendix No. 2 to the Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85, a standard form of an agreement on full individual liability is given. As a general rule, such an agreement can be supplemented with conditions that can only improve the position of the employee in comparison with the current legislation, but in no case worsen, otherwise such an agreement will be declared invalid.

On the basis of an exemplary contract, individual contracts are developed and signed in organizations. It is the signing of such an agreement that is the basis for full liability. At the same time, the contract is valid if the employee's labor function is named in the relevant List approved by the Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85. Once again, we draw your attention to the fact that for the onset of such responsibility, both the mention in the List and the signing of an individual contract are necessary.

In terms of imposing responsibility on the employee for failure to ensure the safety of the property entrusted to him, it should be borne in mind that if other persons have access to the property and the right to dispose of it, the court may release the employee from liability.

The amount of damage according to Art. 246 of the Labor Code of the Russian Federation is determined by actual losses calculated on the basis of market prices in force in the area on the day the damage was caused, but not lower than the value of the property according to accounting data, taking into account the degree of wear and tear of this property.

According to Art. 248 of the Labor Code of the Russian Federation, compensation for damage by deduction from wages is made if the amount of damage does not exceed the monthly earnings of the employee. This also applies to full liability. If the employee has caused damage in excess of his monthly earnings and is fully liable, the employer is not entitled to withhold the amount of monthly earnings in an indisputable manner, such a dispute is considered only in court.

Appendix

An approximate form of an agreement on full individual liability

Agreement on full individual liability

Moscow "__"______2006

A limited liability company (hereinafter referred to as the Employer) represented by General Director Ivanov I.I., acting on the basis of the Charter, and citizen Petrov V.V., holding the position of "Warehouse Manager" (hereinafter referred to as the Employee), having the following passport data ( ___________), in order to ensure the safety of goods belonging to the Employer, have concluded this Agreement on the following:

1. An employee holding the position of a warehouse manager directly related to the storage of goods belonging to the Employer assumes full financial responsibility for the shortage of goods entrusted to him, as well as for damage incurred by the Employer as a result of compensation for damage to other persons.

2. The employee undertakes:

take care of the goods of the Employer transferred to him for preservation and take measures to prevent damage;
promptly inform the Employer or immediate supervisor of all circumstances that threaten the safety of the goods entrusted to him;
keep records, draw up and submit, in accordance with the established procedure, commodity-money and other reports on the movement and balances of goods entrusted to him;
participate in the inventory, audit, other verification of the safety and condition of the goods entrusted to him.

3. The employer undertakes:

create the conditions necessary for the Employee to work normally and ensure the complete safety of the goods entrusted to him. For these purposes, the Employer is obliged to provide the Employee with appropriate premises and equipment necessary to ensure the safety of the goods entrusted to him;
to acquaint the Employee with the current legislation on the material liability of Employees for damage caused to the Employer, as well as other regulatory legal acts (including local ones) on the procedure for storage, acceptance, processing, sale (vacation), transportation, use in the production process and other operations with the goods transferred to him;
carry out, in accordance with the established procedure, inventory, audits and other checks of the safety and condition of goods.

4. In case of failure to ensure the safety of the goods entrusted to him through the fault of the employee, the determination of the amount of damage caused by the Employee to the Employer, as well as the damage incurred by the Employer as a result of compensation for damage to other persons, and the procedure for their compensation are carried out in accordance with applicable law.

5. The employee is not liable if the damage was caused through no fault of his.

6. This agreement comes into force from the moment of its signing. This Agreement shall apply to the entire period of work with the goods of the Employer entrusted to the employee.

7. This Agreement is made in two copies, of which the first is kept by the administration of the Employer, and the second - by the Employee.

8. Changing the terms of this Agreement, supplementing, terminating or terminating it are carried out by written agreement of the parties, which is an integral part of this Agreement.

Addresses and signatures of the parties to the Agreement.

Paragraph 2, clause 4 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52 “On the application by the courts of legislation governing the liability of employees for damage caused to the employer” (as amended on September 28, 2010).

A negligent worker drowned a tractor in a river, a truck full of eggs overturned, or was your store robbed? Who will pay for all this? We will analyze with examples when an employee must be liable, and also talk about how to draw up an appropriate contract. In fact, the liability of an employee is the right of the employer to demand money from the employee for damage caused through the fault of the employee himself.

The Labor Code says that lost profits are not the material responsibility of the employee (Chapter 39 of the Labor Code of the Russian Federation), and the employee is only responsible for the waste of real material values.

Types of liability

The material liability of an employee can be limited and full.

Limited liability is when the amount of compensation has its limits and cannot exceed the average monthly earnings of an employee (Article 241 of the Labor Code of the Russian Federation). For example, the cleaning woman Baba Manya was washing the floor and accidentally pulled a monoblock worth 50,000 rubles from the table. In this case, it will not be possible to fully compensate for the damage. The employee must pay this amount only if you have drawn up a liability agreement with her.

In case of full financial responsibility, the employee is obliged to compensate the damage in full. But is it always possible to place such a duty on the shoulders of employees? And here Art will help us. 243 of the Labor Code of the Russian Federation, which establishes the scope of legal grounds for the recovery of damages.

Limited liability is when the amount of compensation cannot exceed the average monthly earnings of the employee. With full liability, the employee will be obliged to compensate for all damage caused.

When you hire an accountant, salesman, supply manager or other employees who are financially liable due to the specifics of their work, you need to conclude a special contract with them. You can see the list of employees who must be financially liable.

Examples of situations where an employee can be held liable:

When your employee intentionally caused harm, knowing about its consequences. For example, the cleaner Baba Manya cannot stand the accountant Zinaida Petrovna, and therefore broke her computer so that she would not submit the report on time. True, malicious intent will have to be proven.
When the employee was drunk or on drugs. In such a state, the damage caused is subject to mandatory full compensation.
When an employee has committed criminal acts and this has been proven by the court.
When the manager Vladimir sold the contact list of your regular customers to competitors.

Full financial responsibility is individual and collective. In the case of collective liability, the damage must be compensated by a team of employees.

The procedure for bringing an employee to liability

If your employee caused harm to the company in an amount that did not exceed the average monthly salary, then the issue can be resolved in the working order by order of the head. If it is much more, then it is worth going to court.

The employer, according to Art. 247 of the Labor Code of the Russian Federation, the following procedure must be followed:

Establish the value of damaged property.
We find out the degree of responsibility of the employee: limited or full.
We create a commission and conduct an internal investigation.
We ask the guilty person for an explanation.
We draw up an act on the results of an internal investigation.
We issue an order to bring to liability.
We sign an agreement on compensation for damage.

Exemption from liability

There are exceptions under which an employee may be released from liability.

Circumstances exempting from compensation for damage:

According to Art. 239 of the Labor Code of the Russian Federation, earthquakes, tsunamis, war or an epidemic are force majeure circumstances and relieve the employee from liability.
The extreme necessity or necessary defense lies in the examples presented below and is spelled out in Art. 39 of the Criminal Code of the Russian Federation. For example, the cashier Marina Ivanovna honestly performed her direct duties, spent the whole day picking up products at the checkout and receiving money from the population. And at the end of the working day, a man came and, threatening with a knife, demanded to put all the funds from the cash register in a bag. In this case, the shortage will not fall on the shoulders of Marina Ivanovna, because. she was protecting herself.
Normal economic risk is determined in each specific situation. For example, the locksmith Uncle Vasya was given the task to improve the part, but nothing good came of it during the work, and the materials were spent. According to the law, such a situation is treated as a normal economic risk, and the employee does not have to pay for it.
Also, according to Art. 240 of the Labor Code of the Russian Federation, an employee may receive exemption from liability on the personal initiative of the employer.

Results in examples

A drunk tractor driver will fully pay the cost of a drowned tractor.

The driver of the truck that transports the eggs is fully responsible for the damaged goods under a full liability agreement. But if the truck overturned at the epicenter of the earthquake, the driver is not at fault.

A team of workers who stole a tool from a construction site pays for the damage in full.

The cashier is not responsible for embezzlement during a robbery.

The liability of the employee is regulated by law, but this must be specified in the contract.

If your employee caused damage to the company, and the documents do not indicate that he is individually liable, then you will not be able to recover the damage. Moreover, some cases of employee sabotage will need to be proven.

Do not forget, when hiring employees whose positions are included in the list of financially responsible, to conclude an agreement on full liability.

It is better to prevent the situation than to correct it later, so each of your employees should know what he is responsible for. If you do encounter waste, stay calm. The main thing is to carefully study the grounds and conditions of the employee’s liability, correctly assess the situation and complete all the documents on time.

Liability is one of the basic legal terms that denotes the legal obligation of the perpetrator of causing property damage to compensate it to the injured person. The amount and procedure for compensation for harm is regulated by labor legislation. This type of obligation is a response of one side of the business relationship to violations of the other.

The liability of the parties to an employment relationship has its own distinctive features.

First, it is always personal. This means that the employee must independently compensate for the damage caused by him. This also applies to minor employees with whom he was imprisoned.
Secondly, the obligation to compensate for harm arises only after establishing the guilt of the person himself directly. The owner of the entrusted property must prove the existence of an offense.
Thirdly, when establishing the guilt of an employee, the limit of liability is correlated with his salary. The amount of payments to compensate for the damage caused should not exceed the average monthly income of a person.
Fourthly, this type of liability threatens only for actual property damage. It is impossible to oblige an employee to make payments for non-compliance with plans and income not received by the company.
Finally, if several employees are at fault, the amount of payments should be distributed taking into account the degree of guilt of each of them. This phenomenon is called shared liability.

If you want to know more about Mr. orders and regulations, go ahead. we present an analysis of the RF legislation on this topic. Having talked about the concept of liability, let's move on to the types.

There is this term. According to the subject, the obligation of the employee and the employer can be distinguished.

And in terms of the amount of cash payments, it includes:

. The person must compensate the property damage caused in full. This type of obligation often arises from intentional harm, violations while under the influence of alcohol or drugs, or disclosure of legally protected corporate secrets. Read about such an agreement.
. The amount of payments in this case should not exceed the monthly income of the person (according to article 241 of the labor legislation). This type of liability is the most common.

Conditions of occurrence

Existence of actual property damage.
The guilt of the violator (one of the parties to the labor relations) is proven.
The exact amount of damage and the amount of payments have been determined.
There are no circumstances that could relieve the violator from liability.

Briefly about mat. responsibilities of the parties to the employment relationship:

Knowing what liability is, it is worthwhile to deal with those cases when it does not apply. There are certain circumstances that relieve an employee from the obligation to compensate for the harm caused to them. The first of these is property damage due to force majeure. These can be attributed natural disasters(flood, earthquake), man-made circumstance (accident at an enterprise, fire) or public disasters (terrorist attack, war, armed attack, etc.).

The second circumstance is the normal economic risk. The criteria for this concept can be interpreted in different ways. If the employee made every effort and accuracy in relation to the property, fulfilled all the instructions assigned to him by the management, if the damage was caused for the benefit of the health and life of people, or if the goal could not be achieved in another way, then it is removed.

The third circumstance is causing harm in conditions of extreme necessity. This item includes self-defense, as a result of which property damage was caused.

And the last circumstance is the failure of the employer to fulfill his duties. If the authorities violated the storage of property and the conditions for its storage, then the employee is not responsible for the harm caused.

Practically in any organization there is a special system of incentives and criteria for evaluating the results of employees' work. Such systems are supported by the basic principle of liability. It lies in the fact that each employee who is directly related to the property is responsible for the results of labor activity. At enterprises, 2 forms of organization of this type of responsibility are quoted:, and collective.

The most common is 1 form. It means that the employee who is responsible for the property of the organization:

will have to compensate for the damage caused by certain goods. We wrote about such an agreement. represents the responsibility of not one person, but a group of materially responsible persons (of this type).

As for, for them the principle of this type of obligation is expressed in a system of fines and penalties for non-compliance with tax laws.

Timing

The management may hold the employee liable for property damage within one year after the discovery of the violation. If the employee refuses to compensate for the actual damage caused to him, he can be brought to such obligations in court.

With the agreement of both parties, according to labor legislation, payment by installments can be carried out. The employee is obliged to provide the authorities with a document in which he indicates the exact timing of the repayment of the debt.

Target

There are two main purposes of this type of obligation. First of all, bringing an official to liability significantly reduces the number of violations that result in property damage.

Secondly, labor legislation clearly indicates the conditions for this type of responsibility, its types, a special procedure and principle. This helps to protect the employee's wages from illegal and unreasonable penalties from the employer.

limits

According to article 241 of the Labor Code of the Russian Federation, the amount of monthly payments for causing property damage should not exceed the average income of an employee. This is the main limit of liability.

The right of the employer to refuse to recover damages from the employee

The employer, under article 240 of the Labor Code of the Russian Federation, may refuse to recover damages for harm caused by the employee. To do this, he must refer to certain circumstances. Instead of collecting the debt in full or in part, the employer may apply a disciplinary sanction to the employee.

This article has been updated. The owner of the property may overrule the employer's wish and force the violator to pay damages.

Legal entities that are directly related to the property also have some obligations. For example, an employer who did not comply with the rules for the storage and operation of goods must compensate the owner for all damage caused.

So, liability is a term without which it is impossible to imagine labor law. The obligation to compensate for property damage may be imposed on both individuals and legal entities.

The amount of monthly payments, the procedure for collection, types of liability are regulated by labor legislation. Any withdrawal is illegal.

The main purpose of this type of liability at work is to compensate for the harm caused. Any disciplinary action must be taken either on a voluntary basis or through the courts.

Liability is compensation for material damage (harm) caused by the guilty party in an employment relationship (employee or employer).

Depending on who caused the damage, there is a distinction between the material liability of the employee for damage caused to the property of the employer, and the liability of the employer for harm caused to the employee.

I. Liability of the employee. One of the labor duties of an employee is his duty to take care of the property of the enterprise (institution). And if he causes harm in the course of labor activity, he is obliged to compensate him.

Limited liability, as a rule, is imposed on the employee for the harm caused. This is due to the fact that the legislator takes into account the fact that, firstly, the employee, performing labor duties, acts in the interests of the employer, and, secondly, the employer had the opportunity to choose the employee’s candidacy, and therefore must bear a certain risk for his actions. That is why the employee who caused material damage is placed in a more privileged position compared to the defendant under a civil obligation and, as a rule, compensates for the damage not in full, but within the limits of monthly earnings.

It is this material liability that is called limited, which essentially distinguishes it from liability for harm under civil law. For example, if a worker breaks one of them in the process of washing glass (and the area of window glass in industrial premises is very significant), then no matter how much it costs, more than the average monthly earnings cannot be recovered from her.

Full liability, i.e., liability in the amount of damage caused, is assigned only in cases provided for by law (Article 243 of the Labor Code):

when the legislation imposes full liability on the employee, regardless of whether an agreement on full liability has been concluded with him;
when the property was received by the employee on the basis of a special written agreement or a one-time document (for example, the freight forwarder received the property for transportation, but it disappeared on the way);
when the damage is caused by intentional destruction or damage to the property of the enterprise;
when the damage was caused by an employee who was in a state of intoxication (for example, a drunk driver violated traffic rules, as a result of which the car was damaged);
when the damage was caused by a crime established by a court verdict or as a result of an administrative offense;
when an agreement was concluded with the employee on full individual or collective liability (usually such an agreement is concluded with employees related to the sale, transportation, processing and storage of the values transferred to them);
when the damage was caused not in the performance of labor duties (the driver broke the car while driving to the country), regardless of what time (working or non-working) it happened.

Full financial responsibility can be not only individual, but also collective. It is based on a written contract concluded by all members of the team (team) with the employer. It is clear that in this case the team members must trust each other. Therefore, they have the right to withdraw a member of the brigade, including the foreman, give consent to the admission of new members. The amount of compensation by the brigade for damage is distributed among its members depending on the time they have worked (taking into account the time of illness, vacation), on the degree of their guilt and on their tariff rates. To be released from liability under such an agreement, the employee must prove the absence of his guilt.

Compensation procedure. The employee who caused the damage may voluntarily compensate the employer in whole or in part. With the consent of the administration, he may transfer property of equal value as compensation for damage or repair damaged property.

If voluntariness is not shown on his part, then the deduction of damage not exceeding the monthly salary is carried out by order of the administration. Such an order must follow no later than one month from the date of establishing the amount of damage.

In other cases, damages are compensated by filing a lawsuit by the administration in court. The court may, taking into account the degree of guilt, specific circumstances and the financial situation of the employee, reduce the amount of damage to be compensated.

It should be noted that the employee bears material responsibility regardless of bringing him to disciplinary, administrative or criminal liability for actions that caused damage to the employer.

Causing harm to the employer in connection with the performance by the employee of his labor functions and his compensation within the framework of material liability under labor law excludes bringing such an employee to civil liability.

II. Liability of the employer for harm caused to the employee, can be imposed in two cases.

1. For harm caused to an employee by a labor injury or occupational disease. This liability is provided for in Art. 184 of the Labor Code and a special law.

In this case, the damage is compensated in full, namely:

lost earnings are compensated depending on the degree of disability;
additional expenses are reimbursed (for enhanced nutrition, prosthetics, spa treatment, etc.);
a one-time allowance in the amount of the minimum wage for five years is paid;
non-pecuniary damage is compensated in monetary form;
damages to the family are compensated in the event of the loss of a breadwinner from a labor injury.

2. Liability of the employer for the harm caused by him to the employee as a result of violation of his labor rights. These violations deprive the worker of the opportunity to work and, accordingly, receive the necessary means of subsistence.

What violations of the employer can cause such a negative result for the employee:

unlawful suspension from work;
illegal transfer to another job;
illegal dismissal;
refusal to execute a court decision on reinstatement;
delay in issuing a work book;
entering in the work book an incorrect or inappropriate wording of the reason for dismissal;
causing damage to the property of an employee (for example, if he uses his tool, technical means, personal transport, etc. in the process of work).

In these cases, the damage caused to the employee is compensated in full.

The novelty of labor legislation is the establishment of the employer's liability for delayed payment of wages (Article 236 of the Labor Code). In this case, along with the necessary payments, interest is collected from the employer (not less than 1/300 of the refinancing rate of the Central Bank of the Russian Federation for each day of delay).

home > Abrasives

What is liability. The right of the employer to refuse to recover damages from the employee

The concept of liability under labor law, the conditions for the onset and its types

The liability of the employer

Grounds and conditions for the onset of material liability of employees

About full financial responsibility

Limitation of deductions from wages

Extract from the Labor Code of the Russian Federation

The employee did not fulfill his duties

Respondent's position

Justification of the position of the court

Court statement

Damage in the form of an administrative fine received through the fault of an employee

Claimant's position

Justification of the position of the court

Typical violations when concluding agreements on full liability on the part of employers and employees

Conclusion of agreements on full liability with minors

The employee refuses to conclude an agreement on full liability

A commercial organization engages individuals under work contracts to perform certain works and at the same time requires them to conclude agreements on full liability

An employee working in a warehouse of a large store and having access to material values ​​refuses to conclude an agreement on full liability

The organization concludes an agreement on full liability with the watchman for the property protected by him

An exemplary contract with an employee on full individual liability.

An approximate form of an agreement on full individual liability

Agreement on full individual liability

Types of liability

The procedure for bringing an employee to liability

Exemption from liability

Results in examples

Conditions of occurrence

Timing

Target

limits

The right of the employer to refuse to recover damages from the employee

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An employee working in a warehouse of a large store and having access to material values refuses to conclude an agreement on full liability