Liability rests with the employee if. The employee and the material damage caused: when they answer with a salary. Reducing the amount of recoverable damages in court

The list of positions of materially responsible persons was specially developed by the Ministry of Labor of the Russian Federation in order to bring to the attention of managers the circle of employees on whom they can hold responsibility for the loss or damage of material assets in full. This list can be expanded or changed only at the legislative level, local acts enterprises in this case can not change anything.

In what cases can full liability be applied to an employee?

During the performance of their immediate duties, many employees have to deal with material values ​​for which the employer is responsible. Naturally, if something breaks or disappears, the employer will want to recover damages from the employee who caused the loss. But this is not always possible. In the labor legislation, the issue of the material liability of the employee is described in detail.

So, when it comes to liability, it can be established by law or contract. Moreover, contractual liability has its limitations: the employer's liability cannot be underestimated, and the employee's liability cannot be overestimated in relation to that established by law. In fact, the parties in the contract can specify those conditions on liability that are written in the law.

According to Art. 241 of the Labor Code of the Russian Federation material liability employee has a limit set at the level of one average monthly salary. And you can increase liability only in cases expressly prescribed in Art. 243 of the Labor Code of the Russian Federation, namely:

• When it is expressly stated in the law.
• When there was a special agreement between the employee and the employer (such an agreement may be one-time or permanent).
• When the damage was caused intentionally.
• If the worker who caused the damage was drunk or under the influence of drugs.
• If the action that resulted in the damage was officially recognized as a crime or administrative offense.
• If the employee who caused the damage was not performing his job duties.

The list of positions of financially responsible persons can be used in cases where the employee signs a special agreement with the employer, thereby assuming full financial responsibility.

Individual and collective liability

The legislator in the Labor Code of the Russian Federation uses 2 categories: individual and collective liability. Which one will be used depends on the nature of the work performed. If a group of people works with material values, between whom responsibility cannot be distinguished, then an agreement on full material liability is signed immediately with the entire team.

However, each member of the team has the opportunity to waive responsibility for the damage caused. To do this, he needs to prove his innocence. And at the same time, the degree of guilt of the members of the team may vary. This is either agreed within the team, or, if the dispute goes to court, the degree of guilt is already established by the court.

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Accordingly, individual material liability is assigned to only one employee who directly works with material values. And if such an employee has a shift, then a separate contract is concluded with him.

When choosing between these two categories, it is necessary to additionally pay attention to the list of works for which it is possible to conclude an agreement on full liability. Different lists are provided for individual and collective responsibility. But both of them are enshrined in the Decree of the Ministry of Labor of the Russian Federation No. 85 of December 31, 2002. Moreover, if for individual responsibility a list of positions and works is provided, then for collective responsibility only a list of works, in connection with the execution of which liability can be expanded.

List of persons and works subject to full liability

So, in the resolution of the Ministry of Labor there are 3 lists, where positions and types of work are indicated with the possibility of concluding an agreement on liability.

1. List of positions that may be assigned individual responsibility. It includes:

• Cashiers and controllers.
• Employees of any level working in the depositary or expert fields of activity, as well as those associated with the circulation of money and securities.
• Managers employed in the service, food, trade, hotels sectors.
• Heads of warehouses, storage rooms and pawnshops, building commandants, senior nurses, freight forwarders, housekeepers, storekeepers.
• Heads of pharmacies and pharmaceutical organizations.
• Laboratory assistants, methodologists, heads of libraries.

The list of works where individual liability agreements can be signed with the employees performing them:

• Acceptance and payment of payments, sale of goods and services.
• Depository and expert work, as well as work related to the circulation of banknotes and securities.
• Works related to the storage of material values.
• Works related to the repair of household items, cars, jewelry, nuclear materials, and hence their temporary storage.

The list of works, where collective responsibility agreements can be concluded with the employees performing them, coincides with the previous list of works.

Registration of liability: order of appointment and sample contract

The issue of full liability should be fixed separately. Only the heads of the company and the chief accountant can have this item as part of the employment contract.

An agreement on full liability may be offered to the employee for signing immediately along with the employment contract when he is enrolled in the state. If this has not been done, the employee is liable for damage only within the framework of monthly earnings - even if his position is fixed in the list of persons with whom full liability agreements can be concluded. The contract itself is concluded on the basis of the relevant order.

The employer may offer to sign the agreement some time after hiring, but the employee is not required to sign it. However, refusal may result in dismissal. True, before this, the employer will have to offer the employee another position. And the dismissal itself is carried out according to the procedure associated with a significant change in the terms of the employment contract.

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A model contract for such cases was proposed and approved by the Ministry of Labor in the same resolution as the above lists of positions and jobs. There are 2 options: to consolidate individual and collective responsibility.

Consequences of damage

Before demanding full compensation for damage from an employee, the employer must determine the amount of damage and give the employee a month to voluntarily compensate it. If the employee has not paid the required amount within this period, then the forced collection of the amount exceeding the average monthly earnings of the employee can occur only in judicial order.

The employee has a chance to avoid paying compensation if he proves his innocence. Also, the employee can, by agreement with the employer, pay compensation in installments. To do this, it is necessary that the employee draw up his obligation in writing, where he would indicate the terms of payment. But if the employee does not follow the payment schedule, then the debt can be collected in court.

Dismissal of a financially responsible person

The dismissal of an employee does not in any way affect his obligation to pay off the damage caused by him during work. The employer can even specifically dismiss an unreliable employee, but he will still have to pay damages.

The labor legislation enshrined the principle according to which liability does not depend in any way on bringing the employee to disciplinary, administrative or even criminal liability. So if an employee is imprisoned for theft, he will have to pay off the debt to the employer.

An employee who, during the performance of his job duties, works with material assets may be held liable for their damage or loss. But in order for such an employee to fully compensate for the damage, a special agreement must be signed with him. However, an agreement on full liability can not be signed with everyone - the position held by the employee or the work performed must be included in the appropriate list approved by the Ministry of Labor.

Financial liability for damage caused to the employer.

In accordance with labor legislation, the employee is obliged to compensate the employer for the direct actual damage caused to him, which is, as mentioned above, the real decrease in the employer's cash property or the deterioration of this property (including the property of third parties held by the employer, if the employer is liable for the safety of this property), as well as the need for the employer to incur costs or excessive payments for the acquisition or restoration of property. At the same time, lost income (lost profit) is not subject to recovery from the employee.

The conditions for the occurrence of liability are disclosed in Ch. 10.1 of this book.

The employee is liable both for direct actual damage directly caused by him to the employer, and for damage incurred by the employer as a result of compensation for damage to other persons.

At the same time, the employee is liable for the damage caused within the limits of his average monthly earnings, unless otherwise provided by the Labor Code of the Russian Federation or other federal law (Article 241 of the Labor Code of the Russian Federation).

In the event that the damage was caused to third parties by an employee who, at the time of the traffic accident, was in the performance of his official duties, the requirements of Art. Art. 238, 241 of the Labor Code of the Russian Federation, since this dispute arises from labor relations.

Accordingly, if the employer brings a claim against the employee in recourse for compensation for damage caused by the employee to third parties, then this category of cases in accordance with paragraph 6 of part 1 of Art. 23 of the Code of Civil Procedure of the Russian Federation is subject to consideration by a justice of the peace as cases arising from labor relations.

Full and limited liability of the employee (including cases of full liability)

The liability of an employee may be full or partial (limited).

The first occurs both under an agreement on full individual or collective liability, and in cases expressly provided for by law and not requiring reflection either in an employment contract or in an agreement on full liability.

An agreement on full liability is concluded by the employer with an employee who has reached the age of 18 and directly serves or uses monetary, commodity and other valuables or other property in the course of their activities. First of all, it is desirable for the employer to conclude this agreement (simultaneously with the signing labor contract) with employees such as Chief Accountant, cashier, seller-cashier, seller, storekeeper, driver, courier, etc. - in a word, people who carry out the transportation and delivery of inventory items. Indicative list persons with whom an agreement on full liability can be signed is established by the Government of the Russian Federation.

A special position among persons bearing full financial responsibility for the values ​​entrusted to them is occupied by the cashier of the organization. When hiring, he must be familiarized with a special document against receipt - an obligation on the liability of the cashier. The duties of the cashier of the organization are regulated by the Procedure for maintaining cash transactions in Russian Federation, approved by the Decision of the Board of Directors of the Central Bank of the Russian Federation of September 22, 1993 N 40.

The position of the cashier is indicated in the List of positions and works replaced or performed by employees with whom the employer can conclude written agreements on full individual or collective (team) liability, approved by Decree of the Ministry of Labor of Russia dated December 31, 2002 N 85, in connection with which he must conclude an agreement on full individual liability.

It should also be taken into account that an agreement on full material and full collective responsibility cannot be concluded with the same person.

Liability in the full amount of the damage caused to the employee occurs regardless of the conclusion of the contract in the following cases:

When, in accordance with the Labor Code of the Russian Federation or other federal laws he is liable in full for the damage caused by him to the employer in the performance of his duties;

Lack 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 toxic intoxication;

Causing damage as a result of his 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 (official, commercial or other), in cases provided for by federal laws;

Causing damage not in the performance of labor duties.

Liability in full for the damage caused to the employer can be established by an employment contract concluded by the employee with the head of the organization, deputy heads, chief accountant. This list is established by the legislator and is exhaustive.

If the fulfillment of duties for the maintenance of material assets is for an employee his main labor function, then an agreement on full individual liability is concluded with him without fail. The employee does not have the right to refuse, since the refusal in this case is interpreted as a failure to fulfill his labor duties with all the ensuing consequences, up to and including dismissal. The only exceptions to the rule are cases when an agreement on full liability cannot be signed due to valid reasons on the part of the employee, for example, such as the state of his health, preventing the performance of this work, confirmed medical opinion; failure of the administration to fulfill its obligations to create the necessary conditions for the employee to ensure the safety of the values ​​entrusted to him, and so on. Thus, if an agreement on full liability was not concluded with an employee for a good reason on his part, this is not a basis for dismissal. On the contrary, the employer must offer the employee another position or eliminate the reasons that prompted him to refuse to sign the contract on full liability.

In all other cases, liability for damage caused to the enterprise cannot be higher than the average monthly salary of an employee on the day the damage was discovered.

Thus, according to general rule for the damage caused, the employee is liable within the limits of his average monthly earnings, unless otherwise provided by the Labor Code of the Russian Federation or other federal laws.

All employees, including officials, are liable within the limits of the average monthly earnings, unless there are grounds for imposing liability on them in a higher amount.

Collective (brigade) liability for damage.

As a general rule, liability is individual. When jointly performed by employees certain types work related to the storage, processing, sale (vacation), transportation, use or other use of the values ​​transferred to them, when it is impossible to distinguish between the responsibility of each employee for causing damage and conclude an agreement with him on compensation for damage in full, a collective (team) may be introduced material liability. When damage is caused by the joint actions of several persons, either shared or joint and several liability arises. Shared liability is the main form of damages. Joint and several liability is possible in exceptional cases.

The need to organize work with collective (team) liability is determined by the head of the enterprise, institution, organization, taking into account the opinion of the trade union committee, if the following conditions are present simultaneously:

A) the work performed by the brigade (team) is provided for by the List of works, during the performance of which full collective (brigade) material liability may be introduced for the lack of property entrusted to employees, approved by the Decree of the Ministry of Labor and social development Russian Federation dated December 31, 2002 N 85.

These works include:

Works on acceptance and payment of all types of payments; for settlements in the sale (realization) of goods, products and services (including not through a cash desk, through a cash desk, without a cash desk through a seller, through a waiter or other person responsible for making payments); maintenance of vending and cash machines; for the production and storage of all types of tickets, coupons, subscriptions (including subscriptions and coupons for the release of food (food) and other signs (documents) intended for payment for services;

Works related to the implementation of depository activities; examination, verification of authenticity and other verification, as well as the destruction in the prescribed manner of banknotes, securities issued by a credit or other financial institution and / or the Ministry of Finance of the Russian Federation forms; transactions for the purchase, sale, authorization for payment and other forms and types of circulation of banknotes, securities, precious metals, coins made of precious metals and other currency values; operations with cash when servicing ATMs and servicing customers who have individual safes in the vault, accounting and storage of valuables and other property of customers in the vault; operations for the issuance, accounting, storage, issuance and destruction of bank, credit, discount cards, cash and other financial services for customers, for counting, recalculating or forming cash and currency values; collection functions and transportation (transportation) of cash and other valuables;

Works on the purchase (acceptance), sale (trade, release, sale) of services, goods (products), their preparation for sale (trade, release, sale);

Works on acceptance for storage, processing (manufacturing), storage, accounting, release (issuance) of material assets in warehouses, bases, storerooms, points, departments, sites, in other organizations and divisions; for equipping passenger ships, wagons and aircraft; servicing the residential sector of hotels (camping sites, motels, etc.);

Works on acceptance from the population of cultural and household items and other material assets for storage, repair and for performing other operations related to the manufacture, restoration or improvement of the quality of these items (values), their storage and performance of other operations with them; on the issuance of rent to the population of cultural and household items and other material values;

Works on acceptance and processing for the delivery (escort) of cargo, baggage, postal items and other material and monetary values, their delivery (escort), issue (delivery);

Works on the manufacture (assembly, installation, adjustment) and repair of machines and equipment, instruments, systems and other products manufactured for sale to the public, as well as parts and spare parts;

Works on the purchase, sale, exchange, transportation, delivery, forwarding, storage, processing and use in the production process of precious and semi-precious metals, stones, synthetic corundum and other materials, as well as products made from them;

Works on cultivation, fattening, maintenance and breeding of agricultural and other animals;

Works on the manufacture, processing, transportation, storage, accounting and control, sale (purchase, sale, supply) of nuclear materials, radioactive substances and waste, others chemical substances, bacteriological materials, weapons, ammunition, components for them, explosives and other products (goods) prohibited or restricted for free circulation;

B) the work is performed by employees jointly, and it is impossible to distinguish between the liability of each employee and conclude an agreement with him on full individual liability.

The decision of the employer is formalized by order (instruction) and announced to the team (team) at general meeting. The order (instruction) of the employer on the establishment of collective (team) liability is attached to the agreement on collective (team) liability between the employer and all members of the team (team).

The management of the team (team) is entrusted to the head of the team (team leader), who is appointed by order (instruction) of the employer. At the same time, the opinion of the collective (team) is taken into account.

In the temporary absence of the head of the team (team leader), his duties are assigned by the employer to one of the members of the team (team).

The contract is not re-executed when individual employees leave the team (team) or when new employees are admitted to the team (team). 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 of joining the team (team).

When the head of the team (team) is changed or more than 50% of its original composition leaves the team, the contract is renegotiated.

The basis for bringing members of the team (team) to liability is material damage caused by a shortage confirmed by the inventory. Bringing the team (team) to liability is carried out by the employer after a thorough check of the causes of damage, taking into account written explanations provided by members of the team (team), and, if necessary, also the conclusions of specialists. Members of a collective (team) are exempted from compensation for damage if it is established that the damage was caused through no fault of their own.

The damage subject to compensation caused by the collective (team) to the employer, in case of voluntary compensation for damage, is determined by agreement between all members of the collective (team), and when recovering damages in court, the degree of guilt of each member of the collective (team) is determined by the court.

Koshevoy filed a lawsuit against Okromelidze and Melnichenko for compensation for material damage caused by the shortage and for the recovery of lost profits. In support of the claim, he indicated that the defendants worked for him as sellers of industrial goods in accordance with an employment contract. On April 1, the plaintiff entered into an agreement with the defendants on full liability; On May 21, an inventory was carried out, as a result of which a shortage of 1,149 rubles was revealed. After that, both sellers left their workplace and did not go to work from 22 to 25 May. On May 25, with the participation of the defendants, a re-inventory was carried out and a shortage in the amount of 2841 rubles was revealed. The plaintiff also pointed out that as a result of the downtime of the store from May 22 to May 25, the lost profit amounted to 7813 rubles.

The court satisfied the plaintiff's claims in full, the claimed amounts of damage were recovered from the defendants jointly and severally.

The Judicial Collegium overturned the decision of the court, since the norms of substantive law were violated during its adoption.

Imposing joint and several liability on the defendants, the court did not take into account the provisions of Part 4 of Art. 245 of the Labor Code of the Russian Federation, which provides that when recovering damages in court, the degree of guilt of each member of the team is determined by the court.

It follows from the materials of the case that the defendants were with the plaintiff in labor relations, therefore, for the damage caused to the plaintiff in accordance with this article, they can only be held liable in shared terms.

Recovering from the defendants lost profits for the period of downtime of the store from May 22 to May 25, the court did not take into account the provisions of Ch. 39 of the Labor Code of the Russian Federation and art. 238 of the Labor Code of the Russian Federation, according to which lost income (lost profit) is not subject to recovery from the employee.

Determining the amount of recovery in the amount of 2841 RUB. according to the inventory sheet dated May 25, the court did not take into account that the defendants did not have access to material assets from May 22 to May 25, the fact of the theft of inventory items by the defendants as a result of an inspection conducted by the Vuktyl police department was not established, and according to the inventory sheet dated May 21, the shortage of inventory items amounted to only 1149 rubles.

An example of calculating the amount of liability of team members.

According to the results of the inventory carried out at the end of the reporting month (carried out monthly), a shortage of goods in the amount of 10,000 rubles was revealed.

The damage was caused by a team of workers with whom an agreement on full collective liability was concluded.

The team consists of three people, each of which worked out for the reporting month:

Employee A - 160 hours (salary per month - 5200 rubles);

Employee B - 152 hours (salary per month - 4800 rubles);

Employee B - 148 hours (salary per month - 5800 rubles).

Sum wages based on salary for actual work working time per month with a standard working time per month of 168 hours will be:

Employee A - 4952 rubles. (5200 rubles / 168 hours x 160 hours);

Employee B - 4343 rubles. (4800 rubles / 168 hours x 152 hours);

Employee B - 5109 rubles. (5800 rubles / 168 hours x 148 hours).

In total, the amount of the brigade's salary based on official salaries will be 14,404 rubles.

The damage caused will be distributed among the members of the brigade in the following order:

Employee A - 3438 rubles. (4,952 rubles / 14,404 rubles x 10,000 rubles);

Employee B - 3015 rubles. (4,343 rubles / 14,404 rubles x 10,000 rubles);

Employee B - 3547 rubles. (5109 rubles / 14,404 rubles x 10,000 rubles).

Total - 10,000 rubles.

Determination of the amount of damage caused.

Highly important point to compensate for harm caused by an employee, it is to determine the actual value of the losses incurred, documenting the fact of damage, and in some cases the physical condition of the guilty employee.

The most common and effective method identifying and establishing value is inventory. Its results serve as important evidence for the further recovery of the material damage caused to the employee. In order to recognize the results of the inventory as corresponding to the norms of the legislation, the following formalities must be observed:

Issue an order from the head of the inventory, indicating the composition of the commission, the timing, place and scope of the inventory. The commission must necessarily include a representative of the accounting department and an employee whose activities are being checked. The absence of at least one member of the commission leads to the recognition of the results of the inventory as invalid;

Familiarize yourself with the order of the employee. If he is a financially responsible person, he is obliged to hand over to the accounting department all the documents necessary for conducting an inventory of the enterprise, and indicate that all incoming valuables have been capitalized, and those that have left are written off as expenses. This document affixed with his signature. Also, the employee must sign that the calculation of the balances took place in his presence and he has no complaints about the work of the commission;

If an inventory is carried out without an employee being checked, it will be considered invalid, and in the future, in case of a shortage, it will be practically impossible to involve him in compensation for material damage;

If a check is carried out on cash balances at the cash desk of an enterprise or store, it is advisable to arrange it unexpectedly for the employee;

Members of the commission must draw up an inventory list and transfer it to the accounting department. The accounting department prepares a collation statement, in which it concludes that there is a shortage or the absence of such, and for goods of one group, the surplus covers the shortage;

Issue an order from the manager to approve the results of the inventory and to recover the damage caused from the employee who caused it.

The above conditions and the results identified are necessary and sufficient to bring the guilty person to liability.

In the event that an employee manufactures defective products, that is, one that cannot be used for its intended purpose either completely or without significant processing, the employee is liable within the limits of the average monthly salary. The amount of damage in this case is determined, taking into account the possibility of further use of damaged materials. For defective products (works) discovered in production QCD controller, the foreman, the head of the unit, an act (sheet) is drawn up, which is a document for accounting for poor-quality products, determining the size of losses. Officials sign. The employee guilty of producing a marriage must be familiar with the act.

Payment for labor in the production of defective products.

Marriage is considered to be products that are manufactured with a deviation from established standards (with defects).

Marriage may occur:

Through no fault of the employee (for example, due to a hidden defect in the material);

The fault of the employee.

Payment for a marriage that arose through no fault of the employee.

Marriage through no fault of the employee is paid on a par with good products (Article 156 of the Labor Code of the Russian Federation).

Payment for a marriage that arose through the fault of an employee.

A marriage that arose through the fault of an employee can be complete (that is, irreparable) or partial (a marriage that can be corrected).

A complete marriage that arose through the fault of an employee is not paid.

Partial marriage due to the fault of the employee is paid at reduced rates, depending on the degree of suitability of defective products.

Example. On one of the working days of March, an employee of CJSC Aktiv, S.S. Petrov, produced 100 parts, of which 30 were found to be 80% fit. The price for the manufacture of one part is 5 rubles.

Petrov's salary for this day should be calculated as follows:

(100 pcs - 30 pcs) x 5 rub/pcs + 30 pcs. x 5 rub/pc. x 0.8 \u003d 470 rubles.

The costs of correcting the marriage, as well as the costs associated with the write-off of defective products, can be deducted from the wages of the employee who allowed the marriage.

The total amount of deduction for an admitted marriage cannot exceed the average monthly earnings of an employee.

The amount of the monthly deduction cannot exceed 20% of the employee's wages due.

In addition, it must be remembered that the legislator also obliges the employer to find out whether the employee who caused the damage is guilty. He can be recognized as such if the act or omission is committed by him intentionally or through negligence. When intentionally causing harm, he is aware of the unlawful nature of his actions, foresees the onset of negative consequences of his behavior, and wishes or consciously allows the onset of these consequences. In case of careless infliction of damage, the employee foresees the possibility of the occurrence of harmful consequences of his behavior, but frivolously counts on their prevention, or does not foresee the possibility of such occurrence, although he should and could have foreseen them. An employee who is guilty of causing damage is liable only for the losses caused by him, that is, harm that is in a direct causal relationship between the action (inaction) of the employee and the consequences that have occurred.

The perpetrator also bears material responsibility for the damage caused to the employer as a result of compensation for damage to third parties affected by the actions of the employee, unless it is proved that the damage occurred due to force majeure circumstances or the intent of the victim.

Even before making a decision on compensation for damage, the employer is obliged to conduct an audit and establish the amount of losses caused to him in the event of loss and damage to property. It is determined by the relevant specialists on the basis of actual losses calculated on the basis of market prices in force in the area on the day of the damage, but not lower than the value of the property according to accounting taking into account the degree of wear.

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

After that, the employer is obliged to demand from the employee who caused the damage an explanation in writing to establish the cause of the incident.

If the losses were inflicted while under the influence of alcohol, drugs or toxic substances, you should take the explanations of witnesses confirming the fact that the employee was intoxicated, and send the perpetrator to a medical institution that has the appropriate licenses to obtain the necessary documents.

The decision of the administrative authorities or the verdict of the court in relation to the employee also serve as the basis for bringing to liability.

For manufacturing enterprises where damage caused by the fault of an employee is not uncommon or the damage can be significant, it is advisable to create a permanent commission to consider issues related to the infliction of material damage. It is created by order of the head and is accountable to him. The commission should include an accountant, an employee legal service, heads of all structural divisions, a representative of the trade union (if it operates at the enterprise). The commission draws up an inspection report on the fact of causing damage to the enterprise, which should reflect:

Date, place, time of the inspection;

The number of the order on the appointment of the commission;

Composition of the commission;

Description of the circumstances that caused the damage;

Conclusions (as a result of which damage occurred, those responsible for its infliction);

Other circumstances that caused the damage;

Signatures of members of the commission and the employee guilty of causing damage.

The act is drawn up in three copies, one of which is transferred to the accounting department, the other (with materials and a draft order on the results of the audit) - to the head, the third - to the employee against signature.

The procedure for recovering damages.

As a result of the above measures, when the perpetrator and the degree of his guilt in causing harm, the amount of damage caused, the limits of the employee’s liability (full or partial) are determined, the manager issues an order to recover the amount of damage from the employee and sends it to the accounting department for execution.

In this case, the employee is obliged to compensate the employer for direct actual damage. Unreceived income (lost profit) is not subject to recovery from the employee.

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 1 month from the date of the final determination by the employer of the amount of damage caused by the employee. If the one-month period has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer, and the amount of damage to be recovered from the employee exceeds his average monthly earnings, then the recovery is carried out in court.

However, you should be aware that, taking into account the specific circumstances of the damage, the employer has the right to fully or partially refuse to recover losses from the guilty person, and he can voluntarily repay the amount of damage or, with the consent of the employer, transfer to him equivalent or repair damaged property to compensate for losses. In this case, an agreement is concluded with the employee that provides for the conditions for compensation for the damage caused. By the way, if the employee refuses to compensate for the losses in kind, neither the employer nor the court can oblige him to do so. The damage is compensated even if the employee is brought to disciplinary, administrative or criminal liability for actions or omissions that caused harm to the employer.

The employer also has the right to apply to the guilty person, in addition to the measures provided for by law to compensate for the damage caused, other measures of material impact, determined by internal regulatory documents, such as deprivation of bonuses, remuneration based on the results of work for the year, and so on. It would be expedient and fair to apply these measures to employees who, by virtue of the law, have not fully compensated for the losses incurred.

It should not be forgotten that when compensating for damages, the total amount of deductions from wages cannot exceed 20%, and in cases provided for by federal laws, 50% of the wages due to the employee, and also, in cases of limited liability, amount to an amount higher than the average monthly earnings. worker.

If the employer believes that material damage was caused to him as a result of an administrative offense or crime, then in order to hold the employee liable, he must transfer all necessary materials relevant authorities.

The employee who caused the damage has the right to appeal against the actions of the employer in court at any stage of bringing him to liability. Therefore, the fulfillment of all the above formalities will allow the employer to protect his rights as much as possible and compensate for the damage caused to him in accordance with applicable law.

Grishin K. - the owner of the store - decided to demand from one of the sellers the amount of the shortfall, which the accountant revealed on the basis of an analysis of the financial documentation of the store. The conclusions were not confirmed by any references. Having fired the seller, the owner became more and more insistent in demanding that he return the shortage. Then the seller turned to the police, who detained the owner, who once again tried to claim the shortage, for extortion. In this case, if the owner had information about waste or shortages in the store, he should have scheduled an inventory (conduct an audit), consolidate its results and, based on them, issue an order to recover the damage caused from the guilty person. Then his demands would be legitimate, and in case of non-payment of the shortage, the owner would have collected all the evidence necessary to go to court and make a decision in his favor.

Circumstances excluding material liability of the employee.

The material liability of the employee is excluded in cases of damage due to force majeure, normal economic risk, extreme necessity or necessary defense, in the absence of the employee's fault or the employer's failure to fulfill the obligation to ensure proper conditions for storing the property entrusted to the employee.

Liability cannot be applied to an employee even if he notified the employer or other executive enterprise about the improper organization of accounting, storage, transportation of inventory items, and the employer did not take any measures to eliminate these shortcomings, as a result of which damage occurred.

Reimbursement of costs associated with employee training.

The employee is also obliged to reimburse the costs incurred by the employer when sending him to training at the expense of the employer. In the event of dismissal without good reason before the expiration of the period stipulated by the employment contract or agreement on employee training at the expense of the employer, the Labor Code of the Russian Federation does not provide for a way to return this type of cost. But in the current practice, this is either a voluntary reimbursement by the employee of the employer's expenses, or the latter's appeal to the court, receiving writ of execution(in the event of a decision in his favor) and the recovery of funds in the course of enforcement proceedings.

The labor legislation provides for the full and limited liability of the employee. In any of these cases, the employee who has committed unlawful actions / inactions is obliged to compensate for the resulting harm. Next, let's look at what limited liability of employees ika.

General information

Involves compensation only for direct real harm, unless otherwise provided by law or labor agreement. The amount of compensation for damage cannot exceed the average monthly salary. These are enshrined in Article 241 of the Labor Code.

Terms

Limited liability of the employee for damage caused property of the enterprise arises if it arises:

• In the course of performance by the employee of his professional tasks.
• Due to negligence or lack of due diligence (negligent).

If the guilty actions/omissions were committed with intent or the damage arose in connection with the failure of the person to fulfill his duties, then full liability arises. Its limits are fixed in the TC.

Nuances

essence limited liability of the employee is that actual harm is compensated. In this case, the amount of compensation cannot be higher than the amount provided for by law for deduction from an employee.

If the total amount of losses is higher than the fixed limits, it is allowed to impose on the employee the obligation to fully compensate for the losses.

Cases of limited material liability of employees

In practice, the most common cases of imposing an obligation on an employee to compensate for damage within the limits of his average monthly earnings are:

• Payment by the employer of a fine for the employee (if, through the fault of the employee, a penalty was imposed on the enterprise).
• Damage to valuables transferred to a person for the performance of professional tasks.
• The loss of documents, which cannot be restored within a certain period of time, which causes real damage.
• Violation of the procedure for compiling documents, entailing the impossibility of the employer to conduct activities in full.

Limited employee liability for damages property involves compensation for the cost of repairs, restoration of damaged values. For example, due to the negligence or negligence of an employee, the machine failed. Its repair is carried out at the expense of the employer. However, due to the fact that the employee is guilty of a breakdown, the corresponding amount is deducted from his salary.

Pinning in local documents

In order to bring a person to full liability, it is necessary that the corresponding provision be fixed in the labor or additional agreement. With regard to limited material liability of employees, then there is no need to specifically prescribe such a condition in the contract. In this case, the penalty is imposed in accordance with the direct indication of the law.

As a rule, ordinary employees do not have access to the company's funds and other objects, the damage or loss of which could lead to significant negative consequences for the organization. The harm that may arise from their actions / inactions is incommensurable with the damage that may be caused by violations committed by employees who have access to such values.

Accordingly, it does not depend on the profession or position, but on the scope of authority, the amount of damage. In this case, there must be no intent in the actions / inactions of the person.

Conditions for the imposition of penalties

When deciding whether to attract employee to limited liability the manager must find out that the harm caused is due to the action / inaction of the employee. For example, the loader did not notice the window and, bringing in a box of goods, broke it, or the secretary accidentally spilled coffee on the keyboard.

An important condition for the imputation of limited liability is the absence of circumstances excluding it.

Exceptions

As mentioned above, there are several circumstances in the presence of which a penalty cannot be imposed on an employee. These include:

• Force majeure (force majeure).
• Disaster.
• Failure by the employer to provide the necessary funds, failure to create proper conditions for the work of employees.
• normal business risk.
• Necessary self-defense or emergency. For example, a robber burst into the office, the secretary was not at a loss and hit him on the head with a laptop, as a result of which the equipment was damaged.

It should also be said that the law provides for the right of the employer to refuse to impose a penalty on the employee.

The limits of limited liability, therefore, depend, among other things, on the presence / absence of the above circumstances.

Explanatory

After establishing the fact of causing harm, the employee responsible for it must submit written explanations to the manager. If he refuses to do this, an act is drawn up.

In most cases, after receiving the employee's explanations, the employer approves the order to impose a penalty. The guilty employee must familiarize himself with its contents against signature.

Liability Rules

They are enshrined in Article 248 of the Labor Code.

The order of the head on the imposition of a penalty on the employee must be signed within a month from the date of determining the final amount of damage. If this period has expired or the employee refuses to compensate for the damage, the employer has the right to go to court.

In the case of voluntary compensation by the employee for harm, he transfers the established amount to the account of the enterprise or transfers money to the cash desk of the organization. Payment by installments may be established by agreement of the parties. The conditions and procedure for payments in this case are fixed in the contract.

Termination of the employment relationship does not relieve the employee of the obligation to compensate for the resulting damage.

An employee can compensate for damage with equivalent property, restoration of damaged valuables with the consent of the employer.

Recovery of damages from an employee does not exclude the possibility of bringing him to disciplinary, criminal, administrative liability.

The amount of the penalty

As a general rule, the amount of compensation should be within the average monthly earnings of the guilty employee. If the amount of damage is equal to or less than the amount of the salary, then it is recovered in full. If the value is more than the average monthly earnings, the amount equal to the salary is compensated, and the rest is written off at the loss of the employer.

The amount of salary is determined on the date of detection of damage. The calculation of the average monthly earnings is carried out according to the rules of article 139 of the Labor Code. When determining the amount, all payments provided for the employee by the local documents of the enterprise are taken into account.

Regardless of the mode of operation, the amount of average monthly earnings is calculated in accordance with the amount actually accrued for the hours worked in the 12 months preceding the occurrence of damage.

Features of the trial

When filing a claim, the employer must take into account that the court will consider only those claims that have been filed. The instance has no right to go beyond their limits on its own initiative, except in cases expressly enshrined in law.

This means that if the employer files a claim for recovery of an amount based on the provisions of limited liability, and during the course of the proceedings it turns out that the liability in this case is full, the compensation will be awarded based on the original claims, i.e. in the amount of average monthly earnings guilty.

Full matresponsibility

It occurs under certain conditions:

• Full financial responsibility assumes the position held.
• There is a special agreement between the employer and the employee.
• Waste/damage of valuables entrusted to the person under the report took place.

The list of financially responsible employees includes all employees, to one degree or another connected with money or other values. These include:

• Directors.
• Heads of departments/divisions.
• Warehouse managers.
• Trade, bank employees.
• Cashiers, etc.

Cases of full liability

According to the law, compensation for the full amount of damage is imputed to the employee if:

• Full liability is assigned to the employee by legislative and other regulations, local documents for harm arising from the performance of his professional duties.
• There was a shortage of valuables transferred to the employee in accordance with a special agreement or a one-time document.
• The damage was done intentionally.
• The damage arose as a result of the actions of an employee who was in a state of intoxication (toxic, alcoholic, narcotic).
• The harm arose in connection with the commission of a crime established by the verdict of the court, or an administrative offense identified by the authorized state body.
• Information classified as a protected secret (official, commercial, state) has been disclosed.
• The damage was not caused in the performance of professional duties.

Important point

Before bringing an employee to liability, both limited and full, the manager must make sure that the actions of this particular citizen caused harm. For this, the legislation provides for the obligation to take explanations from the employee.

If necessary, to clarify the circumstances of the occurrence of damage may be involved law enforcement. As a rule, this happens when an employee commits criminal acts intentionally.

For the convenience of studying the material, the article is divided into topics:

Concludes in writing;
- concluded with employees not younger than 18 years old;
- an employee who occupies a position or performs work directly related to the maintenance or use of monetary, commodity values ​​or other property (it should be noted that this contract cannot be concluded with cleaners, watchmen and warehouse accountants material values are not directly entrusted);
- a list of such positions and works, as well as a standard contract providing for individual liability, are approved in the manner determined by the Government of the Russian Federation.

At present, the Decree of the Ministry of Labor of Russia No. 85 is in force, which approved the List of positions and works replaced or performed by employees with whom it can conclude written agreements on individual or collective liability (hereinafter - Decree of the Ministry of Labor of Russia No. 85).

The list cannot be expanded by the employer, although it does not list all types of positions and work related to material values. However, material liability can be imputed to employees if their main job (position) is not included in the above list, but a combined job (position) is included.

Resolution of the Ministry of Labor of Russia No. 85 also approved a standard contract on full individual liability, which defines the procedure for its conclusion, as well as the rights and obligations of the employee and the administration of the organization.

Full liability arises in cases of intentional damage (clause 3 of article 243 of the Labor Code). The employer must prove not only the amount of damage caused to him, but also the intent of the employee.

The employee bears full financial responsibility if the damage is caused to the employer as a result of the employee's criminal actions established by a court verdict (clause 5, article 243 of the Labor Code). Until the entry into force of the court verdict, the employer does not have the right to hold the employee liable on this basis. If the employee is terminated before the court verdict is passed, this also prevents the employee from being held fully liable. However, if the verdict has entered into force, but the person is released from it for some other reason (for example, an act of amnesty), then this cannot be a basis for exemption from full liability to the employer, since the criminal nature of the act is established by the court verdict.

An employee can be held fully liable to the employer in cases where the damage was caused as a result of an administrative offense, if such is established by the relevant state body (clause 6 of article 243 of the Labor Code). The concept of administrative is given in the Code of Administrative Offenses. An administrative offense is understood as an unlawful guilty action (inaction) of an individual or legal entity, for which the Code of Administrative Offenses or the laws of the constituent entities of the Russian Federation on administrative offenses are established (Article 2.1 of the Code of Administrative Offenses). If a government bodies authorized to consider administrative offenses, the fact of an administrative offense is established, then the employee may be held by the employer to full liability for the damage caused. However, it must be borne in mind that the possibility of bringing to liability from the employer comes after the employee has exhausted the opportunity to appeal against the decision of state authorized bodies on bringing to administrative responsibility.

According to Art. 22.1 of the Code of Administrative Offenses, cases of administrative offenses are considered within the competence established by law by judges (magistrates), commissions for minors and the protection of their rights, federal executive authorities, their institutions, structural divisions and territorial bodies, as well as other state bodies 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 magistrates, commissions for minors and the protection of their rights, authorized bodies and institutions of the executive authorities of the constituent entities of the Russian Federation, administrative commissions, other collegiate bodies created in accordance with with the laws of the subjects of the Russian Federation.

In accordance with paragraph 7 of Art. 243 of the Labor Code, disclosure of information constituting a legally protected secret (official, commercial or other), in cases provided for by federal laws, is one of the grounds for bringing an employee to full liability for damage caused. There are no concepts of official or commercial secrets in the labor legislation. The Civil Code defines an official or commercial secret as information that has actual or potential commercial value due to its unknown 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 (paragraph 1 of article 139 of the Civil Code).

Labor legislation does not provide for the possibility of recovering losses from employees for disclosure of the specified information, however, it may be the basis for bringing the employee to full liability in the event that the disclosure of official or commercial information caused material damage to the employer.

Conditions on non-disclosure by an employee of secrets protected by law (state, official, commercial and other) may be included by the parties in the content of the employment contract (Article 57 of the Labor Code).

Thus, it is possible to bring an employee to full liability for the disclosure of official, commercial secrets, provided that:

1) in labor contract included a provision on non-disclosure by the employee of official, commercial information;
2) liability in full for the disclosure of this information (official, commercial) is provided for by federal law.

Currently, due to the absence of federal laws providing for material liability of employees for damage caused by the disclosure of information constituting a legally protected secret, it is not possible to bring any employee to liability on this basis.

Information that cannot constitute an official or commercial secret is determined by law and other legal acts (Article 139 of the Civil Code).

Thus, the Decree of the President of the Russian Federation approved the List of confidential information. The list of information that cannot be a commercial secret is approved by the Decree of the Government of the RSFSR.

This Decree is given in almost all commentaries and textbooks. However, it should be borne in mind that it was taken to solve specific problems - in order to ensure the activities of the state tax service, law enforcement and regulatory authorities, as well as to prevent abuse in the process. For participants and in other cases (except for privatization), this Resolution cannot be considered automatically valid.

If material damage is caused by an employee not in the performance of labor duties, then this is also the basis for bringing the employee to full liability. The most typical case is an accident when using company vehicles for personal travel. Damage not in the performance of official duties can be caused at any time: before the start of work, during, after the end of the working day. It is important that the employee damaged the property of the employer (third parties) and at the same time he did not perform the functions assigned to him by the employment contract, job description, internal regulations, etc. and did not comply with the instructions of the official.

In addition to the cases expressly listed in Art. 243 of the Labor Code, liability in the full amount of damage caused to the employer may be provided for by an employment contract concluded with the head of the organization, deputy heads, chief accountant. However, it is important to note that in order to bring these persons to full liability for the damage caused to the employer, in addition to what is provided for in the employment contract, it is necessary to have all general conditions bringing to responsibility (causing damage, the fault of the employee, causation, etc.).

Determining the amount of damage caused to the employer depends on the nature of the offense that caused the damage, the form of fault of the employee who caused the damage, and the type of property lost.

If damage is caused as a result of loss or damage to property, its amount is determined by actual losses based on 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 the data, taking into account the degree of deterioration of this property.

According to the Federal Law "On Appraisal Activities in the Russian Federation", the market price is the most probable price at which this object of appraisal can be alienated on the open market in a competitive environment, when the parties act reasonably, having all the necessary information, and the value of the transaction price does not affect what or emergency circumstances. However, if the market value of the property is lower than according to accounting data, then the amount of damage will be determined according to accounting data, taking into account the degree of depreciation of this property.

The current labor legislation provides for the obligation of the employer to establish the amount of damage caused to him, as well as the reasons for its occurrence (Article 247 of the Labor Code). Even before making a decision on compensation for damages 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.

When clarifying the causes of damage, it is mandatory to demand explanations in writing from the employee who was entrusted with the property of the employer.

Based on these explanations, it is possible to draw conclusions about the illegal behavior of the employee, the presence or absence of his guilt, as well as the presence of a causal relationship between the damage and the illegal behavior of the employee.

The results of the verification of the causes of damage, its amount must be documented (reconciliation report, inventory report, etc.). The employee and (or) his representative have the right to get acquainted with all the materials of the audit. If the employee does not agree with the results of the inspection, he has the right to appeal them in the manner prescribed by the Labor Code.

Employer liability

The liability of the employer to the employee occurs in the following cases:

Causing damage by illegal deprivation of his opportunity to work;
- causing damage to the property of the employee;
- delays in the payment of wages and other payments due to the employee;
- infliction of moral harm to the employee.

The employer is obliged to compensate the employee for material damage caused to him by illegal deprivation of his opportunity to work ().

The employer is liable if the employee does not receive earnings as a result of:

Illegal removal of an employee from work, or his 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 in his previous job;
- delays by the employer in issuing to the employee, entering into it an incorrect or inappropriate wording of the reason for dismissal.

According to the legislator, this is an exhaustive list. Until 2006 Art. 234 of the Labor Code of the Russian Federation contained an indication of other cases provided for by federal laws and.

Currently, the most common grounds for bringing an employer to liability is unlawful suspension from work, dismissal or transfer to another job. Suspension from work, dismissal and transfer to another job are regulated by the current labor legislation. In the cases provided for, the employer is obliged to remove, not allow the employee to work. Therefore, most often it is not the very fact of suspending an employee from work that is illegal, but the procedure for applying such suspension is violated, which makes the corresponding order (instruction) of the employer illegal. So, when an employee who appears at work in a state of alcoholic, narcotic or other toxic intoxication is removed, his medical examination is not carried out or an act is not drawn up on his appearance in this form on.

There are frequent cases of transferring an employee at the initiative of the employer to another job without his consent, prompting the employee instead of an employment contract concluded for an indefinite period, to agree to fixed-term contract, or under the threat of dismissal, switch to part-time, work week.

In small businesses, employers often do not draw up a work book, despite the requirements of the employee.

The employer is liable for damage caused to the property of the employee. Such liability arises in case of damage, damage, loss of outer clothing, headgear, other things belonging to the employee, even if he did not transfer them to the cloakroom for safekeeping. They can be stored at the workplace, on the territory of the organization in specially designated places.

The property of the employee includes monetary values. Local regulatory legal acts may provide for the obligation of the employer, in the event of postponement of the vacation, to compensate the employee for the unreimbursable costs incurred by him for the purchase of tickets, hotel reservations, etc.

The legislator pays special attention to the timely payment of wages and other payments due to the employee in market conditions of management.

Ensuring the right of every employee to timely and in full payment of a fair wage, ensuring a worthy existence for him and his family, is enshrined in the Labor Code of the Russian Federation as a basic principle (Article 2). A similar obligation of the employer is contained in: “To pay in full the wages due to employees within the time limits established in accordance with this Code, collective agreement, labor contracts.

In market conditions of managing the delay by the employer of wages is widespread. It has become commonplace. The responsibility of the employer in such cases occurs regardless of his fault.

The legislator has provided a number of guarantees for the employee, encouraging the employer to pay him in a timely manner. So, if the payment of wages is delayed for more than 15 days, the employee has the right, by notifying the employer in writing, to suspend work for the entire period until the payment of the delayed amount (part 2 of article 142 of the Labor Code of the Russian Federation). In case of untimely payment to the employee of annual paid leave, the employer, upon the written application of the employee, is obliged to postpone such leave for another period agreed with him (part 2).

In case of violation by the employer of the established deadline for the payment of wages, vacation pay and other payments due to the employee, the employer is obliged to additionally pay him monetary compensation in the amount of not less than 1/300 of the current rate of the Central Bank of the Russian Federation from the delayed amounts for each day, starting from the next day after the due date up to and including the day of actual settlement. The amount of monetary compensation to an employee may be established by a collective or labor contract. At the same time, it cannot be lower than it is provided for by law (Article 236 of the Labor Code of the Russian Federation).

In cases where financial position organization does not allow the employer to pay off employees within the prescribed period, a debt repayment schedule is drawn up, and in extreme cases, the employer’s organization is declared bankrupt.

The employer is also liable in case of damage to the life and health of the employee. Such liability is regulated mainly by the norms of civil law. Violation by the employer of the current labor legislation usually causes moral or physical suffering to the employee. The definition of the concept of non-pecuniary damage in case of violation of the labor rights of employees was given in the resolution of the Plenum of the Supreme Court of the Russian Federation No. 10 “Some questions of the application of legislation on compensation for moral damage”. According to the Supreme Court of the Russian Federation, moral or physical suffering can be caused by the action or inaction of the employer, infringing on property belonging from birth or by virtue of law. wealth(life, health, personal dignity, business reputation, immunity privacy, personal and family secrets, etc.) or violating his personal non-property rights (the right to use his name, the right of authorship and other non-property rights in accordance with the law on the protection of rights to the results of intellectual activity) or violating the property rights of citizens.

From the above definition it follows that compensation for moral damage is possible in case of a guilty offense by the employer:

According to the Supreme Court of the Russian Federation, the amount of compensation for non-pecuniary damage is determined by the court based on the specific circumstances of each case, taking into account the scope and nature of the moral or physical suffering inflicted on the employee, the degree of guilt of the employer, other noteworthy circumstances, as well as the requirements of reasonableness and justice.

Collective liability

In accordance with the collective (team) liability may 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 distinguish between the responsibility of each employee for causing damage and conclude an agreement with him on compensation for damages in full.

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

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

Collective liability, as well as individual liability, can only be introduced in relation to employees holding certain positions and (or) performing certain work, an exhaustive list of which is established by the "List of positions and works ...". Among them are the following: work: on the receipt and payment of all types of payments; for settlements in the sale (realization) of goods, products and services (including not through a cash desk, through a cash desk, without a cash desk through a seller, through a waiter or other person responsible for making payments); maintenance of vending and cash machines; works: for the purchase (acceptance), sale (trade, release, sale) of services, goods (products), their preparation for sale (trade, release, sale); work: on acceptance for storage, processing (manufacturing), storage, accounting, release (issuance) of material assets in warehouses, bases, storerooms, points, departments, at sites, in other organizations and divisions; servicing the residential sector of hotels (camping sites, motels, etc.); works: on acceptance from the population of cultural and household items and other material assets for storage, repair and for performing other operations related to the manufacture, restoration or improvement of the quality of these items (values), their storage and performance of other operations with them; on the issuance of rent to the population of cultural and household items and other material values; works: on acceptance and processing for the delivery (escort) of cargo, baggage, postal items and other material and monetary values, their delivery (escort), issue (delivery); works: for the manufacture (assembly, installation, adjustment) and repair of machines and equipment, instruments, systems and other products manufactured for sale to the public, as well as parts and spare parts and other works.

The main criterion for the need to introduce collective liability is the impossibility of delimiting the liability of employees for causing damage. This is, for example, when in a store in one trading floor there are two or more sellers selling common goods located in the same trading floor or warehouse.

The procedure for concluding, amending and terminating an agreement on full collective liability is contained in the "List of positions and works ...".

Before concluding an agreement on full collective liability, an order should be issued to introduce such liability, which should also indicate the nominal composition of the team (team) with an indication of the positions of employees. Employees must be familiarized with the specified order against signature. In addition, taking into account that, in accordance with the requirements of the current legislation, the recruitment of a newly created team (team) is carried out on the basis of the principle of voluntariness, it is recommended that the order also make a note of the consent of the employees with the terms of this order. For example, after the text of the order and the signature of the manager, you can invite each of the employees to write the following text with their own hands: "I have read and agree with the introduction of full collective liability and the composition of the team (team)."

The order (instruction) of the employer on the establishment of full collective (team) liability is attached to the agreement on full collective liability.

An agreement on material liability is concluded between the enterprise and members of the team (team) in two copies and is signed by the head of the enterprise, the foreman and all members of the team (team). The first copy of the contract is kept by the administration, the second - by the foreman. Subsequent changes are made by the administration to both copies of the contract.

By order of the enterprise, employees are appointed who are responsible for storing contracts, recording them and making appropriate changes to them in a timely manner.

The material liability agreement comes into force from the date of its signing and is valid for the entire period of work with the material assets entrusted to the employee or team at this enterprise (in the trading unit).

The management of the team (team) is entrusted to the head of the team (team leader), who is appointed by order (instruction) of the employer. At the same time, the opinion of the collective (team) is also taken into account. Therefore, this order also recommends obtaining the written consent of employees who are members of the team (team).

When new employees are included in the team (team), the opinion of the team (team) is taken into account. In this case, as a rule, an order is issued, which reflects that a new member of the team is included in the specified team (team) of workers. All members of the team (team) should be familiar with this order, it is also desirable to indicate in the order their written consent with this decision of the leader.

The agreement on full collective liability is not renewed when individual employees leave the collective (team) or when new employees are admitted to the Collective (team). 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 Agreement and indicates the date of joining the Team (team).

The exceptions are the following cases: when changing the foreman or when leaving the brigade more than fifty percent of its original composition, and in the case when the brigade consists of two people - one employee, the contract must be reissued.

If the employee refuses to conclude an agreement on brigade liability, the head of the enterprise may offer the employee another job that matches his qualifications. In the absence of such work or the refusal of the employee from the work offered to him, he may be dismissed in the manner prescribed by current legislation.

When individual members of the brigade (except for the foreman) are admitted to the brigade or leave it, as well as when they go on vacation and return from vacation, the issue of the need to conduct an inventory is decided by the brigade together with these workers and in agreement with the administration.

In the case when, by decision of the brigade, agreed with the administration, an inventory is not carried out, the employee gives written consent to accept full liability without taking an inventory of the following content: “I agree to accept liability for the safety of valuables without taking an inventory”, or “I agree to leave the brigade without carrying out an inventory”, followed by the signature of the employee and the date.

The consent of the members of the brigade to accept liability without taking an inventory is documented in the minutes of the meeting of the members of the brigade or their signature as follows: “Agree to the admission to the brigade (or departure from the brigade) of Ivanov Ivan Ivanovich without taking an inventory” indicating the date. After that, changes are made to the payroll of the brigade.

When changing the foreman or leaving him on his next vacation, an inventory is mandatory.

When the foreman returns from the next vacation, as well as when the foreman temporarily leaves the brigade for other reasons (illness, business trip, etc.), an inventory of valuables is carried out, provided that this is required by the administration, the foreman or members of the brigade.

In the temporary absence of the head of the Team (team leader), his duties are assigned by the Employer to one of the members of the Team (team).

In case of collective liability, the receipt of goods, containers and other valuables arriving at the enterprise or a trading unit from the warehouse of the enterprise and directly from suppliers, as well as the release of valuables to a small retail network or in the prescribed manner to other enterprises or trading units is carried out by a foreman or deputy foreman and one of the members of the brigade, appointed first in each shift.

Reports on the movement and balance of valuables are signed by the foreman (his deputy) and, in order of priority, by one of the members of the brigade. The content of the report is announced to all members of the team.

The foreman and his deputy are responsible for violation of the established procedure for accounting, reporting and paperwork.

The accounting department of the enterprise does not have the right to accept reports and documents in violation of the established procedure and is obliged to return them to the team for proper processing.

Responsibility for accepting improperly executed reports and documents rests with the head and chief accountant of the enterprise.

For the purpose of a uniform reporting procedure and the settlement of other issues related to the application of full collective liability at the enterprise, it is recommended that, simultaneously with the conclusion of an agreement on full collective liability, it is recommended to issue any document (order, regulation, etc.) in which there would be all of the above provisions and requirements or include them directly in the agreement on full collective liability. In this case, having familiarized the employees with the specified document against signature, the employer will have the right to quite reasonably demand the fulfillment of the established requirements.

The basis for bringing employees or team members to liability is material damage caused through their fault by failure to ensure the safety of property and other valuables (shortage, damage) transferred to them for storage, sale and other purposes, and confirmed by the inventory sheet.

As in the case of individual liability, bringing the employees of the team (team) to liability is carried out by the administration after a thorough check of the causes of damage, taking into account written explanations provided by each employee (team member), and, if necessary, also the conclusions of specialists. In this case, in case of refusal or evasion of the employee from providing the specified explanation, an appropriate act is drawn up. Such an act must be signed, including by the employee, and in case of his refusal to sign, this must also be recorded in the act and confirmed by the signatures of the persons who drew up the act.

In accordance with Art. 245 of the Labor Code of the Russian Federation in case of voluntary compensation for damage, the degree of guilt of each member of the team (team) is determined by agreement between all members of the team (team) and the employer. When recovering damages in court, the degree of guilt of each member of the team (team) is determined by the court.

Individual liability

The individual material liability of an employee may occur if an agreement on full individual material liability is concluded with him. Such a written agreement on full individual liability, i.e. on compensation to the employer for the damage caused in full for the lack of property entrusted to employees, may be concluded in accordance with Art. 244 of the Labor Code of the Russian Federation with employees who have reached the age of eighteen and directly serve or use monetary, commodity values ​​or other property.

Now in this area there is a decree of the Ministry of Labor of the Russian Federation N 85 "On approval of 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 agreements on full liability " (hereinafter referred to as the resolution "On the lists of positions and works:").

Among the most frequently encountered positions in the field of small business, which are listed in the above resolution "On the lists of positions and jobs ...", are the following: cashiers, as well as other employees performing the duties of cashiers, directors, managers, administrators (in including senior, chief), other heads of organizations and divisions (including sections, collection points, departments, halls) of trade, Catering, consumer services, hotels (camping sites, motels), their deputies, assistants, salesmen, merchandisers of all specializations (including senior, chief), as well as other employees performing similar functions; chiefs (managers) of construction and assembly shops, sites and other construction and assembly divisions, foremen of work and foremen (including senior, chief) of construction and installation work, managers, other heads of warehouses, pantries (points, departments), other organizations and departments for the procurement, transportation, storage, accounting and issuance of material assets, their deputies; household managers, commandants of buildings and other structures, storekeepers, custodians; elder nurses healthcare organizations; procurement and / or supply agents, transportation forwarders and other employees who receive, procure, store, record, issue, transport material assets, heads and other heads of pharmacy and other pharmaceutical organizations, departments, points and other divisions, their deputies, pharmacists, technologists, pharmacists.

It should be noted that in relation to employees associated with the maintenance of inventory items in the field of trade, public catering, consumer services, hotels, the legislator provides the employer with the opportunity to conclude agreements on full liability with employees without limitation on the title of the position, but on condition that the employee will perform functions similar to those listed in the resolution "On the lists of positions and works ...". So, for example, in the case of organizing a communication salon, the employer will have the right to conclude an agreement on full liability with an employee holding the position of salon manager cellular communication, provided that in job description the specified employee will be registered official duties, similar seller, - demonstration of goods to the buyer, sale of goods, acceptance for purchase, pre-sale preparation, etc.

It should also be noted one more feature of the conclusion of an agreement on the full individual liability of the employee. Such an agreement can only be concluded if it is possible to determine exactly which product (commodity-material assets) is entrusted to a particular employee, i.e. it is possible to determine the exact amount of property entrusted to an individual employee. This is, for example, a cashier in case other employees do not have access to cash register, about the seller, if he works in this store (department, trading section), one, etc.

The most accurate list of conditions under which an agreement on full individual liability can be concluded is established in the Instructions on the Procedure for the Application in State Trade of the Legislation Regulating the Material Liability of Workers and Employees for Damage Caused to an Enterprise, Establishment, Organization.

Despite the specifics of the name of the above document, it is valid and contains a large number of recommendations for the correct execution of relations related to the liability of employees, which are fully consistent with the current Labor Code of the Russian Federation. So, in accordance with the specified document, individual liability can be established when replacing or performing the positions and works provided for in the attached list, and with the simultaneous presence of the following conditions.

When:

Inventory assets are handed over directly to the employee under the report, i.e. he is personally responsible for their preservation and sale (small retail workers, storekeepers, cashiers, barmaids, freight forwarders and other persons who carry out production operations with valuables on their own);
- the employee is provided with a separate isolated room or place for storage, sale or processing of inventory items;
- the employee independently reports to the accounting department of the enterprise for the values ​​entrusted to him.

A prerequisite for concluding an agreement on full individual liability is an accurate list of property that is entrusted to the employee. If we are talking about any permanent list of property that is entrusted to the employee for a certain time, then the list of such property can be indicated directly in the full liability agreement itself.

In the event that the list of property entrusted to the employee constantly changes during the performance of his labor function, then in such a situation it is possible to indicate in the contract on full liability for the initial list of property entrusted to the employee, and then indicate that the employee is also entrusted with property, which will be received by him on invoices and (or) established in stock according to the results of the inventory in the course of work.

So, for example, when operating a store in which two sellers work, replacing each other every three days, an agreement on full individual responsibility can be concluded with each of them. In addition, there must be a work schedule for sellers approved by the employer, with which these sellers must be familiarized against signature. At the end of every third day, as well as in the event of a change of sellers not according to the schedule, an inventory should be carried out, as a result of which, among other things, inventory items that are available and entrusted to the seller who enters the workplace are established. Such an order of acceptance and transfer of inventory items should be specified either in the order of the organization, or in agreements on full individual liability.

If the procedure for entrusting property to an employee is not followed or it is impossible to determine what kind of property was entrusted to an employee, it will be impossible to bring him to full liability in case of shortage of property. When imposing full liability on an employee, it should be borne in mind that the conclusion of an appropriate agreement with him in the event of a shortage of property entrusted to him will not be an indisputable basis for the immediate recovery of the damage suffered from him. Labor legislation provides for a certain procedure for determining the amount of damage and ways to recover it.

As a rule, the shortage of property entrusted to the employee is revealed during the inventory. It should be borne in mind that such an inventory must be carried out in strict accordance with the requirements of the current legislation, all the documents provided for in this case must be drawn up. If necessary, they must be signed by an employee who is a financially responsible person, as well as members of the inventory commission.

If, for any reason, the signature of any person is missing, appropriate acts must be drawn up explaining the reasons for refusing to sign. After the shortage is revealed, the employer has the right to create a commission with the participation of relevant specialists to determine the amount of damage caused and the reasons for its occurrence. The creation of a commission is a right, not an obligation of the employer. But, as a rule, in disputable situations or when a large shortage is identified, the creation of such a commission is appropriate. The composition of the commission and the procedure for its work are established by the order of the employer. The results of the work carried out by the commission, as well as conclusions and conclusions, are drawn up in the form of an act signed by all members of the commission, with the rationale for the conclusions cited in it. Regardless of whether a commission will be created to investigate the causes of the damage or the employer will make a decision on his own, a written explanation of the causes of the damage must be required from the employee. This obligation of the employer is established by Art. 247 of the Labor Code of the Russian Federation. It should be noted that this article also provides that in case of refusal or evasion of the employee from providing the specified explanation, an appropriate act is drawn up. Such an act must be signed, including by the employee, but if he refuses to sign, this must also be recorded in the act and confirmed by the signatures of the persons who drew up the act.

Only with strict observance of the above procedure, the employer has the right to recover from the employee the damage caused. If the amount of such damage does not exceed the average monthly earnings of the employee, the recovery of such damage is carried out by order of the employer. But at the same time, it should be noted that such an order can be issued no later than one month from the date of the final determination by the employer of the amount of damage caused by the employee.

With the consent of the employer, the employee may transfer to him equivalent property to compensate for the damage caused or repair the damaged property. The recovery of damage caused to the employer in excess of the average monthly earnings of the employee may be carried out on the basis of a voluntary agreement between the employee and the employer. In this case, payment by installments can be set.

In this case, the employee gives a written obligation on the procedure and terms of repayment of the debt. In the event of the dismissal of an employee who gave a written commitment to voluntarily compensate for damage, but refused to compensate for the specified damage, the outstanding debt is recovered in court. At the same time, it should be borne in mind that, according to the established judicial practice, by going to court, the employer will be required to prove the reliability of the damage, the employee’s real guilt in causing it and the legality of the grounds for recovering the specified damage from the employee.

The written obligation of the employee in this case will be regarded only as one of the evidence that has no advantages over other evidence. Moreover, if violations are revealed in the procedure for conducting an inventory, establishing the amount and causes of damage, then, despite the existence of such a written obligation of the employee, compensation for damage to the employer will be denied. That is why it is very important to strictly observe the procedure established by law for determining the amount and causes of damage.

In all other cases, that is, when the one-month period for issuing an order to recover damages or exceeding the amount of damage to the employee’s average monthly earnings and his disagreement to pay it off voluntarily has expired, recovery can also be carried out only by the court.

Liability of the cashier

When hiring a cashier, each employer must remember that he entrusts his money to this person.

How to insure yourself against dishonesty and incompetence of the employee responsible for cash, read below.

Conclusion of an agreement

It is necessary to conclude not only an employment contract with an employee hired as a cashier. Since the cashier will deal with money and, sometimes, quite large amounts, a standard agreement on full liability is also needed.

The difference between this agreement and the liability agreement lies in the amount of damage that the employee is obliged to compensate. In the first case, the employee compensates the damage in full, and in the second - in the amount of the average monthly earnings.

The right of the employer to conclude an agreement on material liability with the cashier is confirmed by the Decree of the Ministry of Labor of the Russian Federation No. also standard forms of agreements on full liability".

On the basis of the above agreement, the liability of the cashier will be full:

For the fact that the values ​​\u200b\u200baccepted by him will be safe;
- for damage caused by him in any case - both intentionally and as a result of careless or negligent attitude to the duties stipulated by the employment contract.

If the position of an employee involves work on the maintenance of material assets, then his refusal to conclude an agreement with the employer on full liability will be considered as a failure to fulfill his labor duties.

Compensation for damage

In case of damage to the employer, compensation occurs as follows:

1. In order to establish the causes and extent of damage, a commission is created with the participation of relevant specialists. The employer is obliged to find out all the circumstances before making a decision for a particular employee to pay damages.
2. The employee is obliged to give a written explanation of the cause of the damage. If the employee refuses to provide explanations, it is necessary to draw up an appropriate act.
3. Not later than one month from the date of establishing the amount of damage caused, the amount of damage not exceeding his average monthly earnings is recovered from the guilty employee, by order of the employer.
4. If the monthly period has passed or the employee does not wish to voluntarily compensate for the damage caused to the employer, and the amount of damage to be recovered from the employee is more than his average monthly salary, then only the court can recover compensation.
5. When withholding damage from an employee's salary, you need to know that from each salary payment, the total amount of deductions cannot exceed 20%, and in cases provided for by federal law, 50% of the employee's salary (part 1, article 138 of the Labor Code of the Russian Federation ).

Other compensation options

The guilty employee can voluntarily compensate the employer for damages in whole or in part. The employer and the employee can sign an agreement between the parties, which allows compensation for damage in installments, with payment by installments. In this case, the employee provides the employer with an obligation in writing to compensate for the damage. The document must necessarily indicate the exact terms of payments.

If the employee voluntarily agrees to compensate for the damage caused to him, then nothing is withheld from his salary, and the money is paid into the cash desk of the enterprise or transferred to it.

The employee can compensate for the damage caused by him by transferring property of equal value to the employer or repair the damage himself, of course, with the consent of the employer.

Criminal and administrative liability of a cashier

The liability of the cashier may also be accompanied by bringing to administrative and criminal liability.

If the cashier

Made cash payments in excess of the established amounts with third-party organizations;
- did not capitalize (or did not fully capitalize) cash at the cash desk;
- did not comply with the procedure for keeping funds;
- Accumulated cash in cash in excess of the established limit.

Such cases are recognized as a violation of the procedure for working with cash, the procedure for conducting cash transactions and give rise to bring the cashier to administrative responsibility. The commission of these offenses entails a punishment in the form of an administrative fine for a cashier in the amount of 4,000 to 5,000 rubles, and for a legal entity - from 40,000 to 50,000 rubles.

Bringing an employee to disciplinary, administrative or criminal liability does not exempt him from compensation for damage to the employer ().

Dismissal of a cashier guilty of causing damage to an employer

The grounds for dismissal may be:

Entry into force of a court verdict, which established the commission of theft at the place of work (any, even small) of someone else's property, embezzlement (p. "d", p. 6,). Theft can also be established by a decision of a judge or a body that has the right to consider cases of administrative offenses;
- loss of confidence on the part of the management of the organization to the employee who is directly related to material values ​​​​and who has committed guilty acts (clause 7, article 81 of the Labor Code of the Russian Federation).

Types of liability

An employee may be released from liability. This occurs in the event of damage due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer’s failure to fulfill the obligation to ensure proper storage conditions for property entrusted to the employee (Article 239 of the Labor Code of the Russian Federation). It should be borne in mind that the obligation to prove the absence of circumstances excluding the material liability of the employee lies with the employer. This was pointed out by the Plenum of the Supreme Court of the Russian Federation in paragraph 4 of Decree N 52 "On the application by the courts of legislation governing the material liability of employees for damage caused to the employer" (hereinafter - Resolution of the Plenum of the Supreme Court of the Russian Federation N 52).

In addition, the employer has the right, taking into account specific circumstances, to fully or partially refuse to recover damages from the guilty employee. But this right may be limited by the owner of the property of the organization in cases provided for by federal laws, other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation, regulatory legal acts of bodies local government, founding documents organization().

Types of liability

Caused by the employer: full and limited liability.

Upon the occurrence of full liability, the employee is obliged to compensate the direct actual damage caused to the employer in full (part 1). Such liability may be assigned to an employee only in cases expressly determined by the Labor Code of the Russian Federation or other federal laws.

In practice, there may be other situations when you have to apply for the recovery of damages to the court. For example, an employee quit before the start of the reimbursement or full withholding of the required amounts. Recall that for disputes about compensation by an employee for damage, a shortened period is applied - one year from the date of its discovery (part 2).

Driver liability

As you know, Article 134 of the Labor Code contains a rule obliging employees, subject to their fault, to be liable in full for the damage caused to the enterprise, institution, organization.

At the same time, the legislator specifies the cases when the employee bears full liability, namely:

1) the employee has concluded with the enterprise (according to Article 135-1 of the Labor Code) a special agreement in writing, according to which he assumes full financial responsibility for the safety of property or other valuables that are transferred to him for storage or for other purposes;
2) the employee received valuables or other property under a report under a one-time power of attorney or other one-time documents;
3) the actions of the employee, as a result of which damage was caused to the property of the enterprise, contained signs of acts prosecuted in criminal proceedings;
4) the employee was in a state of intoxication at the time of causing the damage;
5) the damage was caused by shortage, deliberate destruction or deliberate 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 enterprise, institution, organization to the employee for use;
6) in accordance with the legislation, the employee is fully liable for damage caused to the enterprise, institution, organization in the performance of labor duties;
7) the damage was caused not in the performance of labor duties;
8) an official guilty of illegal dismissal or transfer of an employee to another job;
9) the head of an enterprise, institution, organization of all, guilty of late payment of wages for more than one month, which led to the payment of compensation for violation of the terms of its payment, and provided that and local budgets, legal entities state form property have no debt to this enterprise.

According to Art. 135-1 of the Labor Code, written agreements on full liability can be concluded by an enterprise, institution, organization with employees (who have reached the age of eighteen) who hold positions or perform work directly related to storage, processing, sale (vacation), transportation or use in the process production of the values ​​transferred to them. The list of such positions and works, as well as a standard contract on full individual liability are approved in the manner determined by the Cabinet of Ministers of Ukraine.

The list of positions and works that are occupied or performed by employees with whom enterprises, institutions, organizations can conclude written agreements on full liability for ensuring the safety of valuables transferred to them for storage, processing, sale (vacation), transportation or use in the production process.

As can be seen from the List, full liability agreements can be concluded, in particular, with persons holding the positions of supply agents, freight forwarders, and collectors. With regard to work, an agreement on full liability can be concluded only with employees who perform work on the purchase, sale, exchange, transportation, delivery, forwarding, storage, processing in the production process of precious metals, precious stones, synthetic corundum and products from them.

Enterprises do not have the right to deviate from the terms of this standard contract. Consequently, in the absence of the requirements specified in the Procedure regarding the types of positions and work, the legislation does not provide for the possibility of concluding an agreement on full liability with an ordinary driver.

Regardless of the fact that there is a written agreement on full liability, the employee in any case will bear such liability if there are grounds provided for in Art. 134 Labor Code.

And yet, it is possible to impose full liability on the basis of an agreement on those employees whose positions are not indicated in the List.

There are two ways:

1) expansion of the labor function, i.e. imposing on the employee the performance of additional duties that are not typical for his position (for example, the duties of a freight forwarder for the carriage of goods). The expansion of the labor function should be carried out with the consent of the employee, or in the order of changes in essential working conditions (the driver can be appointed to the position of a freight forwarder);
2) the introduction of a combination of posts. At the same time, it should be recalled that for combining the employee will receive additional payments or allowances, the amount of which is determined at the discretion of the management or in the collective agreement.

Seller's Liability

In order to protect themselves from the negligence and theft of trade workers, the employer concludes an agreement with them on full liability. Sometimes this responsibility becomes so complete that the seller is forced to pay for goods that he has never seen before. But it protects against unfounded accusations of "responsible" employees.

Almost any employee can face partial liability. You do not need to sign any contract to part with a monthly salary for damage to company property (Article 241 of the Labor Code of the Russian Federation). Another thing is an agreement on liability, which implies full compensation for damage (Article 242 of the Labor Code). Getting a job, this document must be signed by sellers and other trade workers. The “responsible contract” is a real pitfall in their work, but it cannot be abandoned.

The contract can be individual (Article 243 of the Labor Code), when the employee is responsible for the goods received under the reporting document, and collective - if it is impossible to distinguish between the limits of responsibility of employees (Article 245 of the Labor Code of the Russian Federation). The list of "especially responsible" positions is approved by the Ministry of Labor and Social Development of the Russian Federation. With representatives of professions that are not on this list, the employer does not have the right to agree on full liability - as well as with those who are under 18 years old.

Inventory tricks

The mechanism of "payment" is launched along with the inventory, that is, at the moment when the presence and safety of the goods are checked at the enterprise, in the company or in the store. The results may be the most unexpected. An example of this is the story in which the sellers of a store selling digital equipment fell into.

After the change of director in the store, an extraordinary inventory was carried out and goods were found to be missing for almost half a million rubles. The company did not conduct an investigation. The new director told the salespeople that the loss would be made up by a deduction from their salaries. They were worried, but agreed: they did not want to lose their jobs.

A month and a half later, during a planned inventory, the store again ran out of equipment for a large amount. This time, the perplexed sellers wrote letters of resignation by agreement of the parties. The director signed them, but at the same time, at the main office of the company, employees were persuaded to “walk” on vacation until the inventory was completed.

As a result, they received work books only three weeks after the resignation letters were written. But first, everyone was given a choice: either he signs an agreement on voluntary compensation for damage and pays money for the shortage, or an entry will be made in his work book about his dismissal under the article about the loss of confidence on the part of the employer. And they will open a criminal case against him on the fact of shortage. Some succumbed to blackmail in order to finally get a job and get a new job. And others left with an unflattering entry in the book.

Forms of liability

When deciding on the choice of the form of liability (individual or collective), the employer must take into account that full individual liability can be established under certain conditions.

Namely:

- material assets are transferred under the report to a specific employee, and it is he who is obliged to fully ensure their safety;
- for the storage (processing, vacation, sale, etc.) of valuables, the employee should, as a rule, be provided with a separate isolated room or place for storing valuables, and he independently reports to the accounting department of the organization for the values ​​\u200b\u200baccepted by him under the report.

These conditions follow from the content of the Model Agreement on full individual liability, approved. Decree of the Ministry of Labor of Russia No. 85. However, these requirements are not always met in practice. In some cases, material responsible persons are not provided with isolated premises or places for storing products (goods), although organizations report to the accounting department on their own. In essence, this leads to the fact that the employee cannot be held fully liable.

The introduction by law of full individual liability is possible in respect of not all employees serving inventory and monetary values, but only in relation to those who hold positions or perform work related to storage, processing, release (sale), transportation or use in the process production of these values. The lists of works and categories of employees with whom a written agreement on full individual liability can be concluded, as well as the standard form of such an agreement, are approved in the manner established by the Government of the Russian Federation (part 2 of article 244 of the Labor Code of the Russian Federation). On behalf of the Government of the Russian Federation, the resolution approved the List of positions and works replaced or performed by employees with whom the employer can enter into written agreements on full individual liability for the shortage of entrusted property (hereinafter - the List).

It should be noted that in sect. II of the List includes types of work in the performance of which by an employee, regardless of the position held under an employment contract, the employer can conclude a written agreement with him on full individual liability.

The names of positions and types of work that are included in the List have intersectoral significance and are not subject to broad interpretation. Additions and changes to it can be made only in the manner prescribed by law.

Bringing to liability

The employer determines the amount of damage caused

According to Art. 246 of the Labor Code of the Russian Federation, the amount of damage caused to the employer in the event of loss and damage to property is determined by actual losses calculated on the basis of market prices 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 depreciation of this property. The federal law may establish a special procedure for determining the amount of damage to be compensated caused to the employer by theft, deliberate damage, shortage or loss of certain types of property and other valuables, as well as in cases where the actual amount of damage caused exceeds its nominal amount.

According to par. 2, paragraph 13 of Decree No. 52, in cases where it is impossible to establish the day the damage was caused, the employer has the right to calculate the amount of damage on the day it was discovered.

The amount of damage is determined by the employer on the basis of calculations made by the accounting department, in accordance with the current regulations, recommendations and guidelines of the Ministry of Finance of the Russian Federation (for example, Methodological guidelines for accounting approved by the Ministry of Finance of the Russian Federation No. 91n, Regulation on accounting and in the Russian Federation, approved Order of the Ministry of Finance of the Russian Federation No. 34n).

Employer takes inventory

Before a decision is made on compensation for damage by specific employees, it is imperative to conduct an audit to establish the amount of damage caused and the reasons for its occurrence (part 1 of article 247 of the Labor Code of the Russian Federation). The purpose of the audit is to identify the presence of the employer's property, as well as to establish its compliance with the inventory records. The obligatory nature of this check (inventory) is also established by paragraph 2 of Art. 12 of Federal Law No. 129-FZ "On Accounting". There is a unified form of the order to conduct an inventory, approved by the Decree of the State Statistics Committee of the Russian Federation No. 88 (form No. INV-22).

The results are documented by a document fixing the fact of damage and its size. For example, if there is a shortage of property, an inventory act is drawn up, if damage or defective products are detected, - if there is a shortage or damage to cargo in railway transport - a commercial act.

Holding official investigation

To conduct such an investigation, the employer has the right to create a commission with the participation of relevant specialists (part 1 of article 247 of the Labor Code of the Russian Federation). The employer issues an order, for example, the following content:

"In connection with the shortage of goods stored in the warehouse, identified by the results of the inventory, I order:

Create a commission to conduct an internal investigation in the following composition (the positions and names of the members of the commission will be listed);
- conduct an internal investigation to establish the causes of damage before ____."

Obtaining a written explanation from the employee

In order to determine the cause of the damage, the employer must demand a written explanation from the employee:

"I ask you to provide me with explanations in writing, within two working days from the date of receipt of this request, outlining the reasons and circumstances for the absence of the following material assets in the warehouse: ___________."

An explanation can be requested, for example, from the moment the damage is discovered, as well as during or after an internal investigation. The period during which a written explanation must be requested from the employee is not established by law.

If the employee refuses or evades providing the specified explanation, an appropriate act is drawn up. If the employee agrees to voluntarily provide the specified explanation, then there is no need to request it in writing.

The conclusion of the commission on the results of an internal investigation

Based on the results of the internal investigation, a conclusion is drawn up, which is signed by all members of the commission.

The conclusion reflects the facts established by the commission, in particular:

fault of the employee;
unlawfulness of committed actions;
causal relationship between the actions of the employee and the damage incurred by the employer.

Inventory materials, written explanations of the employee and other documents may also be attached to the conclusion.

The employee and (or) his representative have the right to get acquainted with all the materials of the audit and appeal them in the manner established by the Labor Code of the Russian Federation.

Liability of an accountant

The accountant of the organization more often than other employees comes into contact with the property of the organization. For example, money and securities are kept in accounting. And the most expensive office equipment is often located there. But an accountant is an ordinary person, and can lose issued documents or accidentally break a printer. It turns out that the oversight of the employee in these cases is detrimental to the company. And the company's management may require the employee to reimburse the direct actual costs (Article 238TK). For example, in the event of a printer breakdown, the cost of repairing it.

But what about, for example, in such a situation? The organization took custody of the collateral of its client. The accountant accidentally damaged this property (for example, broke the monitor). In this case, it turns out that the accountant has damaged property that is not the property of the organization.

The new wording of Article 238 of the Labor Code clearly states that direct damage will be, including “costs or excessive payments to compensate for damage caused by an employee to third parties.” Therefore, the employer can recover the cost of the monitor from the perpetrator, despite the fact that the property does not belong to him.

At the same time, lost income that the organization could have received, but did not receive through the fault of the accountant, cannot be recovered from it (Article 238 of the Labor Code). For example, the accountant broke the printer. Due to this breakdown, the director was unable to print the documents and get to a meeting with potential client. And the organization did not receive the income that it theoretically could receive. However, it is impossible to recover the amount lost from the accountant.

Liability is of two types: full and partial. Incomplete financial responsibility is assigned to the employee of the organization "by default". This means that for damaged property, an amount can be recovered from it within the limits of the average monthly earnings (Article 241 of the Labor Code). If an agreement on full liability is concluded with the employee, then the employee is obliged to compensate the entire amount of damage caused to the organization.

With employees who directly serve or use monetary commodity values ​​or other property of the organization, it is possible to conclude a written agreement on full liability. The list of positions and works substituted or performed by employees with whom these contracts can be concluded is established by the government (Article 244 of the Labor Code), (Decree of the Ministry of Labor No. 85). Please note: the position of an accountant is not included in this resolution. Of all the positions of accounting employees, only the cashier is indicated. And the list of works includes: acceptance and payment of payments, settlements in the sale of goods, works, services, acceptance for storage, processing, accounting, release (issuance) of material assets. As you can see, the duties of accountants were not included in this list.

However, the Labor Code indicates situations in which it is still possible to recover damages in full from the accountant. They are stipulated in article 243 of the Labor Code.

For example:

1. A shortage of valuables entrusted to the employee under an agreement or under a one-time document was detected;
2. Deliberately caused damage to the organization, including in a state of alcoholic, narcotic or other toxic intoxication;
3. Damage caused as a result of a crime (there must be a court verdict);
4. Damage has been caused as a result of an administrative offense, if such is established by the relevant state body;
5. Information constituting a legally protected secret (of an organization, official, commercial or other) has been disclosed;
6. Damage caused to the organization by an employee not in the performance of his job duties,

The list specified in Article 243 of the Labor Code is closed. And, it would seem, it is impossible to hold an accountant liable in other cases. However, not everything is so smooth. Full liability may be established by other articles of the Labor Code. For example, if an accountant officially performs the duties of a personnel officer, then he must follow the procedure for working with personal data of employees. For violation of this procedure, the organization may bring the accountant to disciplinary and material liability (Article 90 of the Labor Code).

In order for the recovery of damages to be legal, the director of the organization must prove that the property of the organization was damaged precisely through the fault of the accountant. Moreover, the director of the organization is obliged to receive written explanations from the employee. This procedure is established in article 247 of the Labor Code. If the employee refuses to give written explanations, the director must draw up an act about this and record the refusal in it. Please note: if the manager did not turn to the accountant for explanations, but immediately demanded to pay the amount of damage, the actions of the employer can be considered illegal. After all, the fault of the accountant in this case has not been proven.

Before bringing the accountant to liability, the employer is obliged to assess the amount of damage (Article 233TK). It must be evaluated regardless of what form of liability is assigned to the accountant: full or "standard". The amount of damage is calculated based on the actual losses of the organization. Losses are assessed at market prices in effect on the day the damage was caused. However, this amount cannot be lower than the book value of the property, taking into account accumulated depreciation (Article 246 of the Labor Code). If the accountant is in doubt about the amount of damage, you can appeal the employer's decision in court.

If the amount of damage is not more than the size of the average monthly salary, it is possible to recover damages only on the basis of the decision of the director. It must be accepted no later than one month from the moment when the amount of damage was finally established. In other cases (when the monthly period has expired or the amount of damage is more than the average salary), only the court can recover the damage (Article 248 of the Labor Code).

The employer may also refuse to recover damages from the employee. However, the new version of the Labor Code allows the founders of the organization to limit this right. This possibility should be spelled out in the statutory documents (Article 2.40 of the Labor Code).

It is possible to recover damages from the guilty employee that do not exceed his average monthly salary on the basis of an order (order) of the director (Article 248 of the Labor Code). However, the Code does not spell out the exact procedure in detail. Therefore, some employers deduct losses from the accountant's salary. But withholding money from a salary is possible only in cases provided for by the Labor Code (Article 137 of the Labor Code). The list of these cases is closed, and the deduction of material damage is not included in it. There is a controversial situation. New edition The Labor Code has made some changes to Article 137. However, the possibility of deducting the amount of losses from the salary, as before, is not provided. So the accountant, as before, can challenge the deduction of the amount of damage caused from the salary in court.

If the accountant agrees with the amount of damage and the amount of losses is not more than his average salary, then the money can be reimbursed voluntarily. Or agree with the employer on installment payment and sign an agreement with him. In addition, the employer and the accountant may agree that the latter will repair the damaged property at his own expense or buy an equivalent one. These provisions in the Labor Code remained unchanged (Article 248 of the Labor Code).

Suppose an accountant was sent to study. He entered into an agreement with the employer that after the training, the employee will work in the organization for a certain time. The organization paid for the training. However, without having completed the due date, the employee quit without good reason, due to own will.

The new wording of Article 249 of the Labor Code states that the employee must reimburse the costs not in full, but in proportion to the time not actually worked after graduation.

If an organization does not want to follow this reimbursement policy, it may use another amendment. The new version of the Labor Code allows the employer and employee to agree on the amount that the employee must pay in this situation. Or, for example, generally decide that the money does not need to be returned. Thus, the changes in Article 249 of the Code eliminated the ambiguity in what amount to compensate for the cost of education. And also provided an opportunity for the organization and the employee to agree on the amount of payment.

In resolution No. 52, the supreme judges clarified some aspects of the liability of employees. For example, they reminded that soon justices of the peace should consider material liability under an employment contract regardless of the value of the claim. The organization can also file a lawsuit if the employment contract has expired or even missed the one-year period allotted for its filing. However, if the deadline is missed, the organization must prove a good reason for being late with the application. This must be done before a decision is made. If the judge deems the reason disrespectful, then the claim of the organization can be denied precisely because of the violation of the deadline for filing it.

Separately, the judges indicated that the employer is obliged to prove the circumstances that are important for the correct resolution of the dispute. For example: the wrongfulness of the employee's behavior and guilt, the causal relationship between the employee's behavior and the damage that has occurred, the amount of damage caused, compliance with the rules for concluding an agreement on full liability. However, if the organization has proved the legitimacy of concluding an agreement on full liability and the fact that the employee has a shortage, then the obligation to prove the absence of his guilt in causing damage lies with the employee.

But there are circumstances in the event of the occurrence of which the employee cannot be held liable. For example, if the damage arose as a result of force majeure or normal economic risk (Article 239 of the Labor Code). However, the concept of “normal economic risk” is not included in the Labor Code. The judges gave him such a definition - these are the actions of the employee, “corresponding to modern knowledge and experience, when the set goal could not be achieved otherwise, the employee duly performed the duties assigned to him, showed a certain degree of care and discretion, took measures to prevent damage, and the object of risk was material values, and not the life and health of people” (Resolution No. 52).

In the ruling, the judges also clarified some points of “payment” for damages. For example, the organization claimed to be reimbursed an amount within the average monthly earnings of an employee. And as a result of the trial, it turned out that the employee could be held fully liable. In this situation, judges can increase the amount of compensation for damages only in cases provided for by federal laws (Article 196 of the Code of Civil Procedure).

Terms of liability

The general principle is to lay on each of the parties to the contract liability for property damage caused to the other party by non-performance or improper performance by the party of contractual obligations.

With the adoption and entry into force of the Labor Code of the Russian Federation, the parties to the employment contract were placed in fair conditions when resolving issues of liability, while previously it was only about the liability of the employee for damage caused to the property of the employer (Articles 118–123 of the Labor Code of the Russian Federation).

Therefore, a further thorough analysis of the effectiveness of all regulatory legal acts that ensure not only the complete safety of the employer's property, but also compliance with the guarantees of employees in the field of labor relations provided for by the Constitution of the Russian Federation, the Labor Code of the Russian Federation, and other federal laws is required.

The lack of relevant clarifications of the Supreme Court of the Russian Federation on the issue raised, necessary for judicial and economic practice, a number of norms of the Labor Code of the Russian Federation, other regulatory legal acts containing norms labor law regarding the application of Art. 232-237 and others of the Labor Code of the Russian Federation, gives rise to unforeseen individual labor disputes.

It seems that the improvement of legislation in the field of liability of the employer and its explanation by the Supreme Courts of the Russian Federation, the relevant authorities government controlled should be carried out taking into account the increase in the level of legal guarantees for employees of all organizations, regardless of organizational and legal forms and forms of ownership.

Liability cases

Employees, in accordance with the law, bear material liability in the full amount of damage caused through their fault to the enterprise, institution, organization in certain cases.

Namely:

1) when the damage is caused by the criminal actions of the employee, established by a court verdict;
2) when, in accordance with the legislation, the employee is fully liable for damage caused to the enterprise, institution, organization in the performance of labor duties;
3) when a written agreement has been concluded between an employee and an enterprise, institution, organization in accordance with Article 121.1 of this Code on the assumption by the employee of full liability for failure to ensure the safety of property and other valuables transferred to him for storage or for other purposes;
4) when the damage was caused not in the performance of labor duties;
5) when the property and other valuables were received by the employee on account of a one-time power of attorney or other one-time documents;
6) when the damage is caused by shortage, deliberate destruction or deliberate 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 enterprise, institution, organization to the employee for use ;
7) when the damage was caused by an employee who was in a state of intoxication.

Employee liability- this is one of the types of liability that may be applicable to a person who is in an employment relationship with an employer. It can occur in violation of the requirements of the law or local regulations, as well as as a result of causing damage to them. Below we will talk about the existing typesemployee liabilityand the grounds that allow such measures to be applied to the perpetrators.

On the liability of the employee to the employer

An employee's material liability may arise in cases where his actions (or, conversely, inaction) were the basis for causing material harm to the employer.

It is important to note that prosecution is possible only if a number of conditions are met, the main of which are:

• the presence of fixation and evidence of the fact of the damage that was caused;
• the existence of a causal relationship between the damage that occurred and the actions (inaction) of the employee that caused such consequences;
• determination of the amount of damage caused.

At the same time, an employee can be held fully liable only in cases where an appropriate contract has been signed with him.

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For responsibility to come necessary condition is also conducting a check. This is carried out by authorized representatives of the employer or by a specially created commission appointed by order of the employer.

During the verification period, materials are collected that help to restore the picture of what happened and identify the guilty person. It is important to correctly and reasonably establish the amount of damage caused. The employee has the full right to get acquainted with all the materials received during the audit, to make objections and give explanations.

After checking, the employee is introduced to its materials, allowing him to express his own opinion regarding the decision made by the employer and the established amount of damage. The opinion must be expressed in writing, and if the employee refuses to familiarize himself or give explanations, the employer draws up an appropriate act.

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The material liability of an employee can be of several types:

• limited;
• complete;
• individual;
• collective.

On the limited liability of the employee

Limited liability is its most common type: in this case, employees compensate for the damage caused only in a certain part of the total amount of damage (incomplete amount of losses). In Art. 241 of the Labor Code of the Russian Federation states that an employee can be held liable only within the limits of his average monthly earnings - this is called the employee's limited liability.

In this case, the employer has the right to independently (without going to court) to impose a material penalty on the employee. On the other hand, the employee is also entitled to refuse to voluntarily repay the debt to the employer - then the disputed situation is considered in court.

On the full liability of the employee

By analogy with the previous version of liability, the full material liability of an employee is a variant such that the real damage is compensated to the employer in full, regardless of the size of the employee's salary.

Don't know your rights?

An employee can be brought to this kind of liability on grounds, the range of which is rather limited, as evidenced by Art. 243 TK:

1. Responsibility can come only when illegal actions are committed by the employee intentionally, i.e. he knows about the onset of adverse consequences and wants them to occur.
2. The full liability of an employee can also be discussed in cases where he commits guilty actions in a state of alcoholic / toxic / drug intoxication or damage is caused during the commission of a crime / offense. It is important to say that the fact of committing a crime by an employee must be established by the court, and the fact of committing an offense - by an authorized state body.
3. An employee may also be held liable for full liability for disclosure of state/commercial or any other secrets protected by law.
4. A similar type of liability is also applicable when an employee is entrusted with valuables - both under a specially concluded agreement, and under a one-time document.
5. Another reason for bringing an employee to full liability is damage caused to them as a result of actions not related to the performance of labor duties.

It should be said that the employment contract concluded with the chief accountant or any of the deputy heads may also contain conditions for full liability.

Agreements on such a degree of responsibility may be concluded with those employees who, in the course of their labor activity engaged in the transportation, maintenance or receipt of goods and materials. At the same time, the list of works and professions that require the conclusion of such a document is established by the Decree of the Ministry of Labor of December 31, 2002 No. 85.

If we talk about the liability of employees under the age of 18, then it is mentioned in the provisions of Art. 242 of the Labor Code, in particular, it can occur only if they intentionally cause damage, causing it in a state of any kind of intoxication, or as a result of an administrative offense / crime.

Agreement on individual and collective liability (sample 2017-2018)

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Now we will deal with such varieties of responsibility of the material plane as individual and collective.

In the first case, the material liability of the employee should be considered that which is applicable to a particular employee in the event of causing material harm to the employer. It is important to note that this type of liability can be discussed in cases where the damage was caused as a result of proven illegal actions a particular employee or because of his inaction.

Collective material liability occurs in cases where an agreement on it is concluded between the employer and the team (team) of employees. In Art. 245 of the Labor Code of the Russian Federation states that a liability agreement of this kind is concluded with a team of workers who, by the nature of their activities, have to transfer, receive, transport, store, service, or otherwise have free access to goods and materials. But this is possible only on the condition that the specifics of the team's activities do not allow bringing a particular employee to individual responsibility.

It should be noted that even if an agreement on the collective liability of employees is concluded, this does not mean at all that an individual employee of the collective will have to compensate for damage in any situation. According to paragraph 3 of Art. 245 of the Labor Code, if the employee manages to prove his non-involvement in actions (inaction) that caused damage to the employer, then he will be released from liability.

Employees with whom a collective liability agreement has been concluded have the right to voluntarily conclude an agreement on compensation for damages with the employer. If the employees do not agree to compensation for damage, then the dispute is referred to the court, which must determine the degree of guilt of each of the employees and determine the amount of liability of each in proportion to their fault.

The agreement on collective liability of the sample of 2017-2018 (as well as previous years) is not subject to renegotiation if new employees were accepted into the team. However, the agreement can be changed at the initiative of the employer or upon dismissal of more than 50% of the team.

When should you go to court?

In accordance with the current legislation, the employer has the right to independently bring a subordinate to liability of a material nature only when it comes to the amount of damage that does not exceed the average monthly salary of the employee. In addition, the employer must make a decision to hold the employee liable no later than one month from the date of the final determination of the amount of damage caused. If the deadline for making such a decision has expired, it will be necessary to demand compensation for damage, regardless of its size, in court (part 2 of article 248 of the Labor Code of the Russian Federation).

If the amount of damage determined during the audit exceeds the average monthly salary of the employee, then in order to bring the latter to liability, it is necessary to go to court. It is also necessary to apply for protection to the courts in cases where the damage was caused by an already dismissed employee who is not currently in an employment relationship with the employer.

In addition, going to court to bring to liability an employee who does not agree to voluntarily compensate for the damage caused is also practically the only option.

It should also be noted that bringing an employee to liability does not prevent him from applying other sanctions provided for by law, including bringing him to criminal, administrative or disciplinary liability.

On the liability of the employer to the employee

In addition to the material liability of the employee, the legislator provided for the same for the employer in front of him - and in this case there can be no talk of limited liability. The employer is always liable for the damage caused in full (that is, in an amount equal to the losses actually incurred by the employee).

Such liability may arise in the following cases:

1. In case of unlawful deprivation of the employee of the opportunity to work. Of course, the latter needs to prove that such deprivation is unlawful. This item should include: illegal dismissal, suspension from work, refusal of the employer to fulfill the order given to him regarding the reinstatement of the employee at work, delay in issuing work book or entering incorrect or erroneous information into it, etc.
2. In case of damage to any property of the employee through the fault of the employer. This includes clothing, personal items and technical devices belonging to the employee, including those that the employee did not hand over for safekeeping (for example, in a wardrobe).
3. With a delay in wages, as well as other payments that are due to the employee in accordance with applicable law. This violation entails not only bringing the employer to administrative or criminal liability (depending on the severity of the violation), but also civil liability - in the form of compensation to the employee for lost payments, and possibly penalties.

It should be noted that the responsibility of the employer for late payment of wages to the employee occurs regardless of whether there is his direct fault in the committed act. For example, if the non-payment is related to banking activities, the employer is still responsible for violating the terms of payment of wages.

Based on the foregoing, we can conclude that the material liability of the employee is inextricably linked with the rights of the employer, and the liability of the employer - with the rights of the employee. At the same time, the application of penalties to each of the parties must be carried out either on the basis of a voluntary agreement or on the basis of a court decision - and only in compliance with the procedure provided for by the current legislation.