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Financial liability.

The liability of the employee and the employer is defined in the Labor Code. The legislation establishes various grounds for its occurrence, the rules for compensation for harm caused. Consider some cases of employee liability.

Foundations

The material liability of the employee for the damage caused occurs if the employer can prove:

The fact of harm.
A violation committed by an employee that resulted in damage.
The presence of a causal relationship.
The amount of harm.
The existence of an agreement on mat. employee's responsibility.

To do this, the employer checks the labor discipline of the employee who caused the damage. If necessary, a special commission is formed. The head of the enterprise issues an order defining its composition.

Explanatory

The employee is obliged to explain in writing the reasons why he caused damage by his behavior. This requirement is set out in Art. 247, part 2 of the Labor Code. If the employee refuses or evades this duty, the employer draws up an act. Art. 247 of the Labor Code does not establish a period during which the employee must give explanations. Due to the fact that bringing an employee to liability is carried out on the basis of a disciplinary offense, in such situations, the provisions of Art. 193. Part 1, in particular, sets a time limit of 2 business days.

Employee rights

The employee has the right to get acquainted with all the materials collected during the verification of the offense that caused the damage. If necessary, he can appeal against them, file petitions and by other means contribute to an objective analysis of what happened. In addition, the employee has the right to attract a representative. This possibility is enshrined in Part 3 of Art. 247 TK. A representative may be a specialist who, in the opinion of the employee, has the necessary experience and knowledge for a legitimate, objective examination of the charges.

Features of compensation for losses

The procedure for compensation for the harm caused is included in the contract of material liability of the employee. According to part 1 of Art. 238 of the Labor Code is not subject to compensation for lost profits. The tenant can count on the recovery of only direct actual harm. It should be understood as a real decrease in the amount of cash property or deterioration in the state of values. The material liability of the employee and the employer extends to objects owned by third parties, but stored at the enterprise. If damage to such property was caused by employees, the employer may compensate for it in favor of third parties. The manager has the right to recover from the employee expenses or excessive payments for the restoration, acquisition of property of third parties.

Types of liability of an employee

According to the law, the amount of compensation for harm is limited to the average monthly earnings of employees. In this regard, such material liability of the employee is called limited. The establishment of the limit for the recovery is explained not only by the desire of the legislator to protect the interests of employees, but also by the conditions in which they perform their professional duties. By the end of the shift, employees often lose self-control, the ability to adequately assess the danger that always occurs when working with equipment, tools, materials, and so on. As a result, there is a marriage, the wear of production means increases. This, in turn, causes material damage. At the same time, the law provides for cases when the recovery is not limited to the average monthly salary. They are established in Art. 243 TK. In the first part of this article, the grounds are provided for under which the full liability of the employee comes. It is classified depending on the subject composition and nature of the violation.

Agreement on the full liability of the employee

Such an agreement is concluded with an adult employee when he is enrolled in the state, if for the performance of his duties he is entrusted (transferred) with valuables (including money). The standard form is approved by the Ministry of Labor and Social Development. The agreement establishes the duties and rights of the employer and employee. In particular, the employer must create appropriate conditions for the employee in which the latter will carry out his activities and ensure the safety of the material assets entrusted to him.

If the employer fails to fulfill this obligation, the employee may be released from the penalty in case of damage to property. The agreement is drawn up in duplicate and remains with each party. The conclusion of the contract is carried out only with the employee who performs professional activities related to the transportation, storage, sale, processing or use in production of material assets. The list of relevant positions is approved on behalf of the government. Its expansion by local regulations or collective agreements is prohibited.

Art. 243 TK

Full material liability of the employee takes place when:

Lack of valuables entrusted to an employee in accordance with a special written agreement or received under a one-time document.
Intentional damage by an employee to the property of the employer.
Causing damage while intoxicated (drug, alcohol, etc.).
Causing harm as a result of a criminal act, the guilt for which has been proven in court.
Infliction of damage by an administrative violation, if measures of influence were applied to the employee or the fact of damage, destruction or waste of entrusted property was established.
Disclosure of information that constitutes a state, commercial or other secret protected by law.
Causing damage during non-working hours when using production facilities belonging to the employer in their own interests.

Subject composition

The legislation provides for the types of material liability of an employee depending on his position. So, in Art. 243 part 2 of the Labor Code, it is established for the chief accountant, deputy head of the enterprise. The director of the organization is responsible for Part 1 of Art. 277 TK. On the grounds provided for by law, he compensates for the harm caused by his guilty behavior, under part 2 of this article. An employee under the age of 18 is liable only for:

Intentional damage.
Harm while intoxicated.
Causing damage as a result of a crime or administrative violation.

Other cases

The liability of employees can be not only individual, but also collective (team). It also comes on the basis of an agreement. The head of the enterprise concludes an agreement with the team if, when they perform work related to the sale, transportation, storage, use or other use of property, it is impossible to establish the limited liability of each employee and formalize it with an appropriate document. The agreement is concluded with all members of the brigade. The initiative, as a rule, comes from the leader and is formalized by his order (order). This document is attached to the agreement. The contract must include:

Subject of the agreement.
Duties and rights of the team and the head of the enterprise.
The procedure for reporting and accounting.
Compensation rules.

The contract must be signed by the head, the head of the team and all its members.

Specifics of the agreement

The employer appoints the head of the team by his order. During the absence of the head of the team, his duties are assigned to one of the members. In the event of the departure or admission of an employee to the team, the contract is not renegotiated. The re-signing of the agreement is carried out if more than half of the participants from the original composition or the head of the team leaves. When employees are admitted to the brigade, the contract indicates the date of enrollment in the state. The employees included in the team sign the agreement. The contract must contain the obligation of the employer to create the appropriate conditions for the brigade to ensure the safety of the material assets entrusted to them for the performance of the assigned functions.

The head of the enterprise must take timely measures to detect and eliminate the reasons that prevent the preservation of the integrity of the property. He is also obliged to identify those guilty of causing harm, to apply appropriate punishment to them. The contract establishes the liability of employees for direct actual losses, as well as losses incurred by the employer as a result of compensation for damage to third parties.

Compensation amount

The amount of damage caused to the property of the enterprise is established in accordance with the actual losses. They are calculated at the market value in force in the area at the time of the incident. In this case, the amount of damage cannot be less than the price of the lost valuables according to the financial statements. The calculation takes into account the level of depreciation of the property. Part 2 of Art. 246 of the Labor Code, the legislation may establish a special procedure for determining the amount of harm caused to the head of the enterprise as a result of theft, deliberate damage, loss or shortage of certain types of values.

These include, among other things, precious metals, precious stones, and so on. This provision applies to situations where the actual harm exceeds the nominal amount. Federal Law No. 3 provides for the material liability of employees, which is 100 times higher than the actual harm caused to the enterprise.

Limited collection

Liability of employees for damage may be established in the amount not exceeding:

Average monthly income.
Three salaries per month.

In the absence of grounds for collecting an increased amount, all employees compensate for damage in the amount of the average monthly wage. The grounds on which such responsibility arises for the heads of enterprises are established:

Harm caused by excessive payments. Such payments should be understood as the amounts of fines, wages accrued to the dismissed employee due to the delay in providing him with a work book due to the fault of the employer, as well as payment for excessive vacation days, without excluding absenteeism.
Causing harm due to improper organization of accounting and storage of property, cash.
Causing harm due to failure to take appropriate measures to prevent downtime, the release of low-quality products, theft, damage or destruction of valuables.

Increased compensation

In what cases does such material liability of employees occur? The Russian Federation is a state that seeks to ensure the protection of the interests of employees of the enterprise. In connection with this legislation, increased material liability of employees holding certain positions has been established. In particular, persons guilty of illegal transfer or dismissal of an employee are obliged to compensate for the harm caused in the amount of 3 monthly salaries. A similar penalty has been established for officials in the event of a delay in the execution of a court decision on the reinstatement of an employee at the enterprise. Recovery in such situations is imputed to the subject guilty of a clear violation of the law when dismissing or transferring a specialist. Such actions include, in particular:

Termination of the contract at the initiative of the manager without the consent of the relevant elected body of employees (trade union), when consent is required by law or other grounds established in the agreements.
Dismissing women in circumstances in which termination of the contract is unacceptable.
Release of underage employees from their positions without the consent of the State Labor Inspectorate and the territorial Committee on Taxation.
Termination of the contract or transfer of chairmen and members of trade unions, trade union organizers who are not released from production duties in violation of the guarantees established by law.
Change of the place of activity of the employee without his consent.
Transfer or dismissal of a member of the council of a team of employees without the consent of the council.

Additionally

Liability of employees is established in court if:

Employees refuse to compensate damages on a voluntary basis.
The amount of damage is higher than the average monthly earnings.
The employee quit, but did not pay off the debt for the harm caused.

The employee has the right to compensate for the damage caused by his actions on his own initiative in part or in full. By agreement of the parties, an installment plan may be established to repay the debt that has arisen. In such situations, the employee gives a written commitment that he will compensate for the damage within a specific timeframe. The agreement specifies the exact amount of payments. With the consent of the head of the enterprise, the employee may, as compensation, transfer property of equal value to the employer or eliminate damage to the values belonging to the enterprise. The material liability of employees can be reduced by decision of the administration of the organization. The head of the enterprise also has the right to refuse to recover damages from employees. In case of damage due to an administrative offense, the tenant may send the case materials to law enforcement agencies. If there has been a disciplinary violation, the head has the right to apply appropriate measures to the perpetrator independently.

Conclusion

In the event of material damage, the head of the enterprise must conduct an internal investigation of the incident. In such situations, as a rule, a special commission is created. It includes representatives of the trade union and the employer. In the course of the investigation, all the circumstances of the incident must be established, the specific perpetrators must be identified, and the amount of damage must be established. If it is impossible to identify the persons who committed the actions that caused harm, the head of the enterprise applies to law enforcement agencies.

Employees have the right to appeal against the actions of the head, make petitions, provide evidence of their non-involvement in the incident. The Labor Code establishes circumstances upon the occurrence of which the material liability of employees is excluded. This is possible in the event of an emergency, under the influence of force majeure, if the employer fails to fulfill his obligations to create the proper conditions to ensure the safety of the values entrusted to the employee. An employee may also be released from material liability in case of necessary defense, as well as in case of normal economic risk.

Introduction 3

1. The concept of liability of the parties to the employment contract, the grounds and conditions for its occurrence 4

2. Liability of an employee: concept, types, procedure for attracting 7

3. Liability of the employer 12

Conclusion 16

References 17

Introduction

The basis of any society is the labor activity of people. Labor is a condition of human existence, independent of any social forms, and constitutes its eternal natural necessity.

The social organization of labor, which combines material (objective) and volitional (subjective) relations, on the one hand, is influenced by technical means of labor, and on the other hand, is influenced by various forms of social consciousness (politics, morality, law, aesthetics, etc.). ).

The need for legal regulation of the organization of labor is due to the needs of social production and the entire course of its historical development. Normative regulation is the most effective and technical way of organizing numerous and diverse public relations, ensuring their stability and execution, and overcoming arbitrariness in relations between people.

Issues of responsibility of employees and employers are most thoroughly developed in labor law.

The subjects of labor relations are in an unequal position in relation to each other. The employee is the economically weaker side of the employment relationship. He is in a more dependent position on the employer than the employer on him. Such inequality of the subjects of an employment relationship causes significant differences in the legal regulation of the liability of the employer to the employee and the employee to the employer. They relate to determining the amount of damages to be compensated, the procedure and limits of compensation, the nature of the legal norms governing liability.

This paper assumes the study of the liability of the parties to the employment contract, its grounds, types, procedure for attracting and differences in the material liability of the employee and the employer.

1. The concept of liability of the parties to the employment contract, the grounds and conditions for its occurrence

Material liability in labor law is a legal obligation of one of the parties to an employment relationship to compensate for the damage caused by illegal guilty actions to the other party in the amount and in the manner prescribed by law.

In Article 232 of the Labor Code of the Russian Federation, first of all, it is said about the obligation of a party to an employment contract to compensate for the damage caused by it to the other party in accordance with the Labor Code of the Russian Federation and other federal laws. This follows from Art. 1 of the Labor Code of the Russian Federation, which considers the liability of employers and employees as a special type of relationship, the legal regulation of which, in accordance with Art. 6 of the Labor Code of the Russian Federation is referred to the competence of federal government bodies.

The obligation of a party to an employment contract to compensate for the damage caused by it to the other party to this contract begins from the date of its occurrence, regardless of whether the employee is brought to disciplinary, administrative or criminal liability for this damage (Article 248 of the Labor Code of the Russian Federation), and the employer - to administrative liability.

An employment contract or written agreements attached to it may specify the liability of the parties to this contract. At the same time, the contractual liability of the employer to the employee cannot be lower, and the employee to the employer - higher than is provided for by the Code or other federal laws.

This means, for example, that in a contractual manner it is impossible to impose on an employee full financial responsibility for a car, machine tool and other equipment that is serviced by him. Such liability is governed by the relevant norms of the Code (Articles 244, 245 of the Labor Code of the Russian Federation), which are not subject to broad interpretation. On the other hand, practice follows the path of establishing in a contractual manner additional compensation by the employer for harm caused to the health of an employee in connection with the performance of his labor duties. This approach is in line with Art. 9 of the Labor Code of the Russian Federation, which states that it is impossible to reduce the level of rights and guarantees of employees established by labor legislation in a contractual manner. For an exception to this rule, see Art. 243 and 277 of the Labor Code of the Russian Federation.

Termination of an employment contract after causing damage does not entail the release of the party to this contract from material liability provided for by the Code or other federal laws.

The Code of the Russian Federation on Administrative Offenses (Article 4.1) provides that the imposition of an administrative penalty does not relieve a person from the performance of the obligation for which the penalty was imposed. This rule is important for the liability of the employer brought to administrative responsibility for offenses in the sphere of labor. At the same time, the Labor Code of the Russian Federation (Article 243) strengthens the liability of an employee for damage caused by a crime or administrative offense.

It seems possible to identify some general features that characterize the liability of the parties to the employment contract - the employer and the employee:

The emergence of bilateral liability due to the existence of an employment contract;

Only the parties to the contract are the subjects of liability;

Responsibility arises in case of violation of obligations under an employment contract;

Each party is only liable for culpable breaches of duty if this caused damage to the other party;

The possibility of compensation for damage on a voluntary basis.

Consider the grounds for which liability arises. They are listed in Art. 233 of the Labor Code of the Russian Federation:

a) the presence of property damage to the injured party. This is a necessary condition for liability. Since the latter is impossible without damage. Each of the parties is obliged to prove the amount of damage caused to it.

b) wrongfulness of behavior (action or inaction). This means committing them contrary to the law, other regulatory legal acts, as well as the terms of the employment contract. As well as violation of the obligations assigned to the party of the employment contract by the relevant legal norms. The main duties of an employee are provided for by the Labor Code of the Russian Federation in Article 21, they may be assigned to him by the internal regulations, the employment contract, and the instructions of the employer.

c) guilt. It is possible in the form of intent, which is extremely rare in labor relations, and through negligence. Either form is sufficient to impose liability, but the amount of damages recoverable depends on whether the fault is willful or negligent.

d) Causality. It means that the damage did not occur by chance, it was the result of specific actions of one or the other party to the employment contract. Liability does not come for accidental consequences. The causal relationship is established by the court, based on the evidence presented by the parties.

Liability under labor law is similar to property liability under civil law. These types of liability are based on the obligation to compensate for the damage caused. At the same time, there are very significant differences due to the specifics of the subject and method of these industries, as well as their official role. According to labor legislation, only direct damage is subject to compensation, in civil law, in addition to compensation for losses, lost profits are also subject to compensation.

2. Liability of an employee: concept, types, procedure for attracting

In accordance with Article 238 of the Labor Code of the Russian Federation, an employee is obliged to compensate the employer for the direct actual damage caused to him, which means a real decrease in the employer's cash property or deterioration of his condition. This property also includes the property of 3 persons, if the employer is responsible for its safety.

Also, direct damages include the costs or excess payments of the employer for the acquisition or restoration of property.

Excessive payments may be penalties paid by the employer for failure to fulfill contractual obligations with business entities. Equally, they include wages paid to an employee during his unlawful deprivation of the opportunity to work (Article 234 of the Labor Code of the Russian Federation), as well as amounts paid to an employee for delaying the payment of wages (Article 236 of the Labor Code of the Russian Federation) and compensation for moral damage caused to him (Article 237 of the Labor Code of the Russian Federation).

Unreceived income (lost profit) is not subject to recovery from the employee within the framework of labor legislation. Compensation by an employee for lost profits is possible only within the framework of civil law.

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. This approach can be called the "regression approach".

The Labor Code of the Russian Federation provides for cases when an employee is released from liability, although the damage was caused:

The damage was the result of force majeure

The occurrence of damage due to normal economic risk

Damage caused due to extreme necessity or necessary defense

The damage occurred due to the employer's failure to fulfill its obligations to ensure proper storage conditions for the property entrusted to the employee.

Of particular importance is the provision excluding the material liability of the employee for damage resulting from the execution of an order or instruction. Responsibility for causing such harm lies with the person who gave the unlawful order or instruction. However, an employee who caused damage intentionally in pursuance of a knowingly illegal order or instruction is liable on a general basis.

Bringing an employee to liability is a right, not an obligation of an employee. By virtue of Art. 240 of the Labor Code of the Russian Federation, the employer has the right to fully or partially refuse to recover damages from the guilty employee.

Labor legislation provides for 2 types of liability:

1. Limited liability.

As a general rule, an employee who has caused damage to the employer's property bears limited material liability - within the limits not exceeding his average monthly earnings.

The Labor Code of the Russian Federation includes an article (139) devoted to the calculation of the average wage. It says that a single procedure is established for all cases of determining the size of the average wage provided for by the Labor Code of the Russian Federation. Features of the established procedure for calculating the average wage are determined by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations. Abstract >> The state and the right of responsibility: material responsibility worker before employer; material responsibility employer before worker. Material responsibility may be assigned to worker only when...

Material responsibility workers enterprises

Abstract >> State and law

Rule, bear limited material responsibility, That employers- complete; b) as opposed to material responsibility employer material responsibility workers deeply differentiated; c) regarding...

What types of liability does the Labor Code establish?

In practice, it sometimes happens that as a result of conscious or unconscious actions of an employee, material damage is inflicted on the enterprise. In such cases, the employer has the right to bring the employee to material and disciplinary liability in accordance with the norms established by labor legislation. An employee can be brought to compensation for material damage on different conditions and within different limits, but only if his guilt in what happened is proven. It should be borne in mind that in such cases, lost profits are not taken into account and are not subject to compensation.

can be of two types - full and limited. Both that and the other occurs only in the case when the employer was able to confirm the direct actual damage caused by the employee who violated the established regulations, instructions, laws or rules. But each of these types of material liability of an employee implies a different procedure for compensating for the damage caused to them.

When it comes to full liability, the employee will be obliged to compensate the employer for the damage caused in full. When calculating the actual amount of damage, the market value of the lost or damaged property is taken into account.

note: The principle of full liability is applied selectively and not to every guilty employee. It is possible to demand full compensation from an employee only if an agreement on full liability has been concluded with him and if the employee’s position is mentioned in the list approved by Article 243 of the Labor Code of the Russian Federation.

Limited liability applies in all other cases. Its maximum size cannot exceed the size of the average monthly earnings, in accordance with Article 241 of the Labor Code of the Russian Federation. The employer has the right to withhold the amount of damage caused by the employee from his salary, but the deduction must be made within several months, and not at a time.

note: In accordance with Part 1 of Article 138 of the Labor Code of the Russian Federation, the amount withheld to pay for material damage cannot exceed 20% of the salary, but in some cases this share can be increased to 50%. In this case, deductions are made monthly until the amount of damage is paid in full.

But what to do in the case when an employee who has not yet paid the amount of damage caused through his fault, because, in accordance with labor legislation, the employer does not have the right to withhold him. In such cases, the employee must write a receipt stating that he undertakes to pay material damage in full. This receipt will become a guarantee of compensation for damages. It is only necessary that it be drawn up correctly, although it is written in a simple written form. It is necessary to indicate in as much detail as possible all the necessary information and details in it, in order to interpret its text, in the event of a trial, it was possible unambiguously. Going to court is inevitable if after some time it becomes clear that the employee is not going to fulfill the agreed obligations on a voluntary basis. Compensation will be collected from him by the court on the basis of this receipt, in accordance with Part 4 of Article 248 of the Labor Code of the Russian Federation.

➤ A hint from the experts of the magazine "Personnel Business".

In what cases does full liability arise?

The law strictly stipulates the cases and the presence of certain circumstances in which the employee guilty of causing material damage to the employer will have to compensate him in full. These cases are listed in Article 243 of the Labor Code of the Russian Federation, and are presented in the figure:

A hint from the experts of the magazine "Personnel Business". Which employees are subject to liability?

In other cases, we can only talk about limited liability. If the employer, for cases not covered by Article 243 of the Labor Code of the Russian Federation, establishes full liability by a local regulatory act, this will be considered a violation of the current legislation.

Employee Liability Agreement

The material responsibility of the employee must be documented. Full liability agreement can be concluded both with an employee who has already worked at the enterprise for a long time, and with one who is just getting a job. Full financial responsibility for an employee can be assigned only under a bilateral agreement and only on condition that this agreement complies with the established norms of labor legislation.

When concluding such an agreement, it should be taken into account that full liability, as well as for the one whose position is not mentioned in 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 lack of entrusted property, approved Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85 (hereinafter referred to as the List). In this document, you can also familiarize yourself with the standard form of an agreement on full liability.

The list of positions with which an agreement on full liability can be concluded includes, in particular, the following positions: cashier, freight forwarder, store administrator, warehouse manager, head of a pharmacy or pharmaceutical organization or enterprise, employee who receives and pays money and etc. For those positions and types of work that are not included in this List, full liability cannot be established, except for the cases stipulated by Article 243 of the Labor Code of the Russian Federation.

Nikolai Yakovlev, Leading Legal Counsel of the MTS Group of Companies, will suggestwhen the damage can be recovered in full

The list of positions is not subject to extended interpretation, therefore, if the employer plans to conclude an agreement with the employee on full liability, then the name of the employee's position must exactly match the name indicated in the List. If an employee works as a part-time employee, an agreement on full liability can be concluded with him only if his main position appears in the List.

EXAMPLE

As an example, let us cite the case considered by the Rostov Regional Court (ruling dated May 14, 2015 in case No. 33-6963/2015). An agreement on full liability was concluded with an employee working as a forwarding driver. One day, when he was delivering goods to the store, his car broke down. Subsequently, it was found that the car's engine failed due to the fact that lubricants were not replaced in a timely manner and the coolant was not filled. This happened through the fault of the employee, whose labor duties included the maintenance of the car. On the basis of an agreement concluded with the employee on full liability, the employer decided to recover the full cost of car repairs from the employee.

Considering the case, the court found out that in this case the employee combined two positions: a driver and a freight forwarder. Each of these positions involves different working conditions and a different degree of responsibility. At the same time, the position of the forwarder is indicated in the List, but the position of the driver is not in it.

Therefore, the contract on full liability applies only to the labor function of the forwarder, performed by the employee simultaneously with the labor function of the driver. This liability extends to cases of material damage related to the duties of the forwarder - only to the goods that he accompanies and to which the technical serviceability of the vehicle has nothing to do. The car itself is operated by the driver in order to perform a labor function, therefore, it cannot be the subject of an agreement on liability.

It is the responsibility of the employee who has concluded such an agreement not only to ensure the accounting and safety of property, but also to timely notify employers of all cases that threaten its safety. A materially responsible employee is obliged to keep records of the balances and movement of material assets and submit them to the accounting department of the enterprise in a timely manner. If the organization does not maintain commodity reporting, then all operations on the movement of values are recorded in the accounting registers of the accounting department according to the primary documentation submitted by the responsible person. He must also take part in the inventory activities, providing, at the request of the inspectors, all necessary accounting documents.

In some cases, when employees jointly perform certain types of work, including storage, processing, sale, transportation, release of material assets, it is not possible to distinguish between the responsibility of each of them. In such situations, collective (brigade) liability may be introduced.

The procedure for bringing an employee to liability

There are cases when, despite the obvious guilt of an employee in damage or loss of material assets, it is not possible to hold him accountable. This can only be done when the employer manages to prove and confirm with the relevant documents:

the fact of causing material damage;

the fact that material damage was caused as a result of a guilty action or inaction of a materially responsible employee;

a causal relationship between the action or inaction of the employee and the damage caused.

In addition, the employer must determine the amount of damage in order to make a claim to the employee. But if the calculation of damage, as a rule, does not cause any particular difficulties, then the search for convincing evidence of the employee's guilt is a rather complicated matter. In some cases, a special commission is created to investigate what happened, which has to interview the culprit and witnesses.

An employee suspected of causing material damage is obliged to explain to the employer what happened in writing, as established by part 2 of article 247 of the Labor Code of the Russian Federation. In accordance with Part 1 of Article 193 of the Labor Code of the Russian Federation, the employee must submit his explanations within two days, if this did not happen or the employee refuses to give explanations, this fact must be reflected in the relevant act.

note: The decision to compensate for damages by a specific employee can only be made based on the results of an internal investigation ( )

Based on the results of the work of the commission, certain conclusions will be made, with which the employee has the right to disagree. He can appeal the decision of the commission in court, involving as an expert any specialist whom he considers to have the experience and knowledge necessary for an objective consideration of the case. In the event that the court considers the employee's guilt proven, he will have to compensate the material damage caused to the employer in full or partial liability.

An employee is considered innocent of causing material damage in the event that this damage is due to force majeure, normal economic risk, extreme necessity or necessary defense. The employee will be recognized by the court as not guilty of causing material damage and in the event that the employer's guilt is proved in failure to fulfill the obligations to ensure proper storage conditions for material assets entrusted to the employee.

Is it possible to recover material damage from an employee and impose a disciplinary sanction on him?

The employer has the right to reprimand the employee who is guilty of material damage and reimbursed him. These sanctions relate to two different types of liability: disciplinary and material. They are used for different purposes: material - to compensate for damage, disciplinary - to force an employee to perform labor discipline.

Labor legislation prohibits punishing an employee twice for the same offense, imposing two disciplinary sanctions on him at the same time. But the law has no restrictions on the simultaneous application of material and disciplinary sanctions (). Therefore, any disciplinary sanction, including a reprimand, may be imposed on an employee guilty of causing material damage.

Liability of an employee hired part-time

When accepting an external part-time worker for a responsible position, the employer in the usual manner draws up an agreement on full individual liability, even if a similar agreement has been concluded with him at another place of work. The current legislation does not contain a ban on concluding a liability agreement with a part-time partner for each of the places of work, if the following conditions are fully met:

the employee is over 18 years of age;
positions in which a materially responsible employee works are included in;
the work performed by a part-time worker is directly related to the maintenance or use of goods, funds and other property belonging to the enterprise.

, read in the magazine "Personnel Business"

Is it possible to provide for the liability of an employee when concluding a civil law contract?

When concluding a civil law contract for the provision of services with an individual, an organization may include a condition on such liability in the document. At the same time, it must be remembered that this concept in civil law is somewhat different from what is established by labor law. By prescribing a clause on the contractor's liability for improper performance of obligations under the contract, it is possible to provide for a penalty or a fine.

Causing damage to the property of the customer by the contractor is compensated in full (Article 15,), therefore, it does not make sense to conclude a separate agreement providing for liability. Moreover, the execution of such an agreement indicates a desire to document the liability of the employee (and not the contractor), which may lead to the recognition of a civil law contract as an employment contract.

Liability of an employee hired part-time When accepting an external part-time worker for a responsible position, the employer in the usual manner draws up an agreement on full individual liability, even if a similar agreement has been concluded with him at another place of work. The current legislation does not contain a ban on the conclusion of an agreement on liability with a part-time job for each of the places of work, if the following conditions are fully met: the employee is already 18 years old; the positions in which the materially responsible employee works are included in the List; the work performed by a part-time worker is directly related to the maintenance or use of goods, funds and other property belonging to the enterprise. The head of the organization is to blame for the material damage. Who should initiate the audit, read in the magazine "Personnel Business" Is it possible to provide for the liability of an employee when concluding a civil law contract? When concluding a civil law contract for the provision of services with an individual, an organization may include a condition on such liability in the document. At the same time, it must be remembered that this concept in civil law is somewhat different from what is established by labor law. By prescribing a clause on the contractor's liability for improper performance of obligations under the contract, it is possible to provide for a penalty or a fine. Causing damage to the property of the customer by the contractor is compensated in full (Article 15, 1064 of the Civil Code of the Russian Federation), therefore, it makes no sense to conclude a separate agreement providing for liability. Moreover, the execution of such an agreement indicates a desire to document the liability of the employee (and not the contractor), which may lead to the recognition of a civil law contract as an employment contract.

To begin with, it is necessary to give the concept of 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. Liability may arise in case of violation of the requirements of the law or local regulations, as well as as a result of causing damage to them. There are several types of liability: limited or full, individual or collective.

With limited liability, employees compensate for the damage caused only in a certain part of the total amount of damage (incomplete amount of losses). Article 241 of the Labor Code of the Russian Federation states that an employee can only be held liable within the limits of his average monthly income - 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 also has the right to refuse to voluntarily repay the debt to the employer - then the disputed situation is considered in court.

With full liability, the real damage is compensated to the employer in full, regardless of the size of the employee's income. Article 243 of the Labor Code of the Russian Federation establishes the legal basis for this type of liability:

Responsibility can only come when the illegal actions are committed by the employee intentionally, i.e. he knows about the onset of adverse consequences and wants them to occur;

When an employee commits guilty actions in a state of alcoholic (toxic) drug intoxication or damage is caused during the commission of a crime (offence).

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. An employee may also be brought to full liability for disclosure of state or any other secrets protected by law. A similar type of liability is also applicable when the employee is entrusted with valuables - both under a specially concluded agreement, and under a one-time document.

Agreements on full liability can be concluded with those employees who, in the course of their work, are engaged in the transportation, maintenance or receipt of goods and materials. At the same time, the list of jobs and professions that require the conclusion of such a document is established by the Government of the Russian Federation, as stated in the Labor Code (Article 244).

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 when they intentionally cause damage, causing it in a state of any kind of intoxication, or as a result of a misconduct (crime).

An employee's material liability may arise in cases where his actions (or, conversely, inaction) were the basis for causing material damage to the employer. At the same time, it is important that there is a 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. An employee can be held fully liable only in cases where an appropriate agreement has been signed with him.

In order for liability to arise, an inspection is also a necessary condition. This is carried out by authorized representatives of the employer or a specially created commission appointed by order of the employer. The employee has the full right to get acquainted with all the materials received during the audit, to make objections and give explanations. The opinion of the employee must be expressed in writing, and if the employee refuses to familiarize himself or give explanations, the employer draws up an appropriate act.

When proving individual liability, it is important that the damage was caused as a result of proven illegal actions of 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 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, maintain, 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. 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 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 (clause 1, article 248 of the Labor Code of the Russian Federation).

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.

In addition to the material liability of the employee, the legislation provides 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). The liability of the employer arises in the following cases:

In case of unlawful deprivation of the employee of the opportunity to work (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 a work book to him or entering incorrect or erroneous information into it, etc.);

In case of damage to any property of the employee through the fault of the employer (clothing, personal belongings and technical devices belonging to the employee, including those that the employee did not deposit for safekeeping;

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 unreceived payments.

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 responsible for violation of the terms of payment in any case.

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 subject to the procedure provided for by the current legislation.

Material liability

1. The concept, types and conditions of liability

2. Types of liability of the employee

3. The procedure for applying liability

4. Liability of the employer

1. The concept, types and conditions of liability

Material liability- it is the obligation of the party to the employment contract that caused damage to the other party to compensate it in the amount and in the manner prescribed by law.

Liability is an independent type of liability and a specific measure of material impact.

Foundations material liability:

1) unlawful behavior of the employee;

2) the presence of actual damage;

3) a causal relationship between the unlawful behavior of the employee and the onset of direct actual damage;

4) the presence of the employee's fault.

Each of the parties to the employment contract is obliged to prove the amount of damage caused to it.

Termination of an employment contract after causing damage does not entail the release of the party to this contract from material liability provided for by this Code or other federal laws.

Types of liability:

employee to employer

employer to employee

2. Types of liability of the employee

Types of liability of employees:

limited

collective

Limited liability is characterized by the following features:

1) it provides for compensation by the employee for damages within a predetermined limit (not more than the average monthly salary);

2) the average monthly salary is determined based on the last 3 calendar months;

3) the legislation does not provide for a list of cases of damage for which limited liability is provided.

At complete material liability damage is compensated in in full and is not limited by a predetermined limit.

cases under which the employee bears full financial responsibility:

1) If the employee, in accordance with applicable law, is fully liable for damage caused to the enterprise in the performance of labor duties.

2) If an agreement on full liability is concluded between the employee and the employer or if the property was received under a one-time document

Employee is over 18 years old

Nature of work (tangible assets transferred)

3) If the damage is caused by intentional destruction or damage to property.

4) If the damage was caused by an employee who was in a state of intoxication, in a state of toxic or narcotic intoxication.

5) If the damage is caused by the actions of the employee, containing signs of acts prosecuted in criminal proceedings.

6) If the damage was caused as a result of an administrative offense.

7) Disclosure of information constituting a legally protected secret (official, commercial or other), in cases provided for by federal laws.

8) If the damage was caused not in the performance of official duties.

Employees under the age of 18 bear full financial responsibility only for intentionally causing damage, damage caused in a state of alcoholic, narcotic or toxic intoxication, as well as for damage caused as a result of a crime or administrative offense.

Collective material liability:

valuables are entrusted to a predetermined group of workers, which assumes responsibility for their safety;

the list of works for which it is established is approved by law;

established by agreement of all members of the team;

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.

3. The procedure for applying liability

1. The amount of damage caused to the employer in the event of loss or 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 less than the value of the property according to accounting data, taking into account the degree of wear and tear of this property.

2. 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.

3. To establish the cause of the damage, an application must be requested from the employee.

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

5. 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.

6. An employee who is guilty of causing harm to an employer may voluntarily compensate for it in full or in part. By agreement of the parties to the employment contract, compensation for damage with installment payment is allowed.

7. With the consent of the employer, the employee may transfer to him, in order to compensate for the damage caused, property of equal value or repair the damaged property. Compensation for damages is made regardless of bringing the employee to disciplinary, administrative or criminal liability for actions or inaction that caused damage to the employer.

4. Liability of the employer

The employer is obliged to compensate the employee for material damage (lost earnings) in cases of illegal deprivation of his opportunity to work:

1) illegal removal of an employee from work, his dismissal or transfer to another job;

2) 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;

3) delays by the employer in issuing a work book to an employee, entering into the work book an incorrect or inconsistent wording of the reason for dismissal of an employee;

4) other cases stipulated by federal laws and the collective agreement.

The employer is financially liable for the delay in wages: if the employer violates the established deadline for paying wages, vacation pay, payments upon dismissal and other payments due to the employee, the employer is obliged to pay them with the payment of interest (monetary compensation) in the amount of not less than one three hundredth of the current this is the time of the refinancing rate of the Central Bank of the Russian Federation from the amounts not paid on time for each day of delay.

The employer is liable for damage caused to the employee's property:

1) compensate in full;

2) the amount of damage is calculated at market prices in force in the given area at the time of compensation for damage;

3) with the consent of the employee, the damage may be compensated in kind;

4) the employee's application for compensation for damage is sent by him to the employer. The employer is obliged to consider the received application and make an appropriate decision within ten days from the date of its receipt;

5) if the employee disagrees with the decision of the employer or does not receive a response within the prescribed period, the employee has the right to apply to the court.

The employee compensates moral damage caused to the employee:

1) damage is compensated in cash;

2) the amount is determined by agreement of the parties;

3) in the event of a dispute, the amount is determined by the court.