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What is the full financial responsibility of the employee. Punishment to the fullest extent

The labor legislation provides for the full and limited material 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

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

Conditions

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 imputing an obligation to compensate an employee for damages 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 the 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 a 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 not commensurate 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 under 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 labor relations 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. Go beyond them own initiative the instance has no right, 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, law enforcement agencies may be involved in clarifying the circumstances of the occurrence of damage. As a rule, this happens when an employee commits criminal acts intentionally.

The employee is obliged to compensate the employer for the direct actual damage caused to him. Unreceived income (lost profit) is not subject to recovery from the employee.

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

Part three is no longer valid.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

Article 239. Circumstances excluding material liability of an employee

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

Article 240

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

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

Article 241. Limits of material liability of an employee

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

Article 242. Full liability of an employee

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

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

Liability in the full amount of the damage caused may be imposed on the employee only in cases provided for by this Code or other federal laws.

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

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

Article 243. Cases of full liability

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

1) when, in accordance with this Code or other federal laws, the employee is held liable in full for damage caused to the employer in the performance of the employee's labor duties;

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

3) intentional infliction of damage;

4) infliction of damage in a state of alcoholic, narcotic or other toxic intoxication;

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

5) causing damage as a result of the criminal actions of the employee, established by a court verdict;

6) causing damage as a result of an administrative offense, if such is established by the relevant government agency;

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

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

8) infliction of damage not in the performance of labor duties by the employee.

Liability in the full amount of the damage caused to the employer can be established by an employment contract concluded with the deputies of the head of the organization, the chief accountant.

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

Article 244. Written agreements on the full liability of employees

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

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

The lists of works and categories of employees with whom these contracts may be concluded, as well as standard forms of these contracts, are approved in the manner established by the Government of the Russian Federation.

Article 245

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 (brigade) may be introduced material liability.

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, values are entrusted to a predetermined group of persons, which is fully liable for their shortage. To be released from liability, a member of the team (team) must prove the absence of his guilt.

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

Article 246. Determining the amount of damage caused

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

Federal law may establish special order 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.

Article 247

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.

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

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

The employee and (or) his representative have the right to get acquainted with all the materials of the inspection and appeal against them in the manner prescribed by this Code.

Article 248. Procedure for recovery of damage

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

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 recovery can only be carried out by the court.

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

If the employer fails to comply with the established procedure for recovering damages, the employee has the right to appeal against the actions of the employer in court.

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

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.

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.

Article 249. Reimbursement of expenses associated with employee training

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

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

Article 250

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

Reduction of the amount of damage to be recovered from the employee is not carried out if the damage was caused by a crime committed for mercenary purposes.

Content

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 under the influence of various forms public consciousness (politics, morality, law, aesthetics, etc.).

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

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

Subjects labor relations are in an unequal position with respect to each other. Worker - economically more weak side labor 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, legal regulation which according to Art. 6 of the Labor Code of the Russian Federation is referred to the competence federal bodies state power.

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 Administrative Offenses of the Russian Federation (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 existence of property damage to the injured party. This necessary condition 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.

B) wine. 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. They equally 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 payment 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 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. The 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.

2. Full liability.

Article 242 of the Labor Code of the Russian Federation is devoted to the full liability of the employee.

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

1) when, in accordance with the Labor Code of the Russian Federation or other federal laws, the employee is held liable in full for damage caused to the employer in the performance of labor duties by the employee;

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

3) intentional infliction of damage;

4) causing damage in a state of alcoholic, narcotic or toxic intoxication;

5) causing damage as a result of the criminal actions of the employee, established by a court verdict;

6) causing damage as a result of an administrative offense, if such is established by the relevant state body;

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

8) causing damage not in the performance of work duties by the employee

Actual losses, calculated on the basis of local market prices, may exceed financial assessment the amount of damage. In the latter case, the amount of damage is calculated on the basis of the named prices.

However, in any case, the monetary assessment of the amount of damage is given on the day of its infliction; when determining the amount of damage, the actual loss of valuables within the established loss norms is not taken into account. First of all, the norms of attrition, which refers to a decrease in the initial weight and volume of valuables (including raw materials, semi-finished products, industrial and technical products and consumer goods) in the process of sale, storage and transportation, which is the result of their natural (physical and chemical) properties. The norms of natural loss are differentiated by types of values, taking into account the conditions of sale, storage and transportation.

Requesting an explanation from the employee in writing to establish the cause of the damage is mandatory.

The employee and (or) his representative have the right to get acquainted with all the materials of the audit and appeal against them.

The amount of damage in case of theft and shortage of foreign currency should be calculated based on the official exchange rate of its sale on the day the corresponding damage was caused. Currency selling rates are periodically published in the Rossiyskaya Gazeta and other official publications.

Compensation for damage is made regardless of bringing the employee to disciplinary, administrative or criminal liability for an action or inaction that caused damage to the employer. This means that the employee is obliged to compensate for the damage caused to him even in cases where he was not held liable for his actions or inaction.

At the same time, bringing an employee to the named types of liability for an action or inaction that caused damage does not relieve him of the obligation to compensate for this damage. Moreover, the infliction of damage as a result of the criminal actions of an employee or an administrative offense increases the liability of the employee for this damage.

An employee who pleads guilty to the occurrence of damage has the right to voluntarily compensate for it in full or in part within the limits established by law.

Voluntary compensation for damage is carried out by the employee making appropriate sums of money to the employer's cash desk. At the same time, Art. 248 of the Labor Code of the Russian Federation for the first time provides that, by agreement between the employee and the employer, compensation for damage with installment payment is allowed. In this case, the employee submits to the employer a written obligation to compensate for the damage, indicating specific payment terms. If the employee, who gave a written commitment to voluntary compensation for damage, terminated the employment relationship, then the outstanding debt, if the employee refuses to compensate for it, is recovered in court.

If the employee refuses to voluntarily compensate for damage, its recovery is possible by deduction from the employee's salary by order of the employer or in court.

If the employee does not agree to voluntarily compensate for the damage caused, and the amount of damage to be recovered from the employee exceeds his average monthly earnings or the above monthly period has expired, the recovery is carried out in court.

If the employer fails to comply with the established procedure for recovering damages, the employee has the right to appeal against the actions of the employer in court.

3. Liability of the employer

Article 234 of the Labor Code of the Russian Federation for the first time provides for the obligation of the employer to compensate the employee for damage.

There are three fundamental situations in which the employer compensates the employee for the damage caused:

1) causing damage to the property of the employee;

2) situations in which the employee, due to the fault of the employer, cannot perform labor duties;

3) non-payment of wages on time.

Article 235 of the Labor Code of the Russian Federation for the first time provides for the liability of the employer for damage caused to the property of the employee. Previously, in such cases, the employer was liable according to the norms of civil law.

The employer reimburses the employee for the cost of lost property or the costs of restoring the original cost of damaged property in the following cases:

1) loss (damage) of property in case of accidents at work;

2) failure to ensure the safety of the employee's property (for example, due to the lack of specially equipped lockers for storing the clothes of an employee who works in overalls).

An employer who has caused damage to an employee's property shall reimburse this damage in full. The amount of damage is calculated at market prices in force in the area at the time of compensation for damage. With the consent of the employee, the damage can be compensated in kind. The employee's claim for damages is sent 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. 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 go to court.

The employer is obliged to compensate the employee for the earnings not received by him in all cases of unlawful deprivation of his opportunity to work.

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

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

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

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;

Other cases stipulated by federal laws and the collective agreement.

In those given in Art. 234 of the Labor Code of the Russian Federation and other similar cases, the employee is deprived of the opportunity to work and, therefore, receive the appropriate wages. The Labor Code of the Russian Federation imposes on the employer the obligation to compensate the employee for the damage incurred.

However, according to Art. 62 of the Labor Code of the Russian Federation, if on the day the employee is dismissed it is impossible to issue a work book due to the absence of the employee or his refusal to receive the work book in his hands, the employer sends the employee a notice of the need to appear for work book or agree to send it by mail. From the date of sending the notification, the employer is released from liability for the delay in issuing a work book.

Illegal deprivation of an employee of the opportunity to work also occurs as a result of an unreasonable refusal to conclude an employment contract, for example, a refusal to hire due to circumstances unrelated to business qualities worker. The Labor Code of the Russian Federation contains a direct prohibition to refuse to conclude an employment contract to an employee who has received a written invitation to work in the order of transfer from another employer, as well as to a woman for reasons related to pregnancy or the presence of children (Article 64 of the Labor Code of the Russian Federation).

The Labor Code of the Russian Federation does not limit the liability of the employer for damage caused in these cases by any limit. Moreover, Article 395 of the Labor Code of the Russian Federation states that if the body considering an individual labor dispute recognizes the employee’s monetary claims as justified, they are satisfied in full, and according to Art. 396 of the Labor Code of the Russian Federation, if the employer delays the execution of the decision to reinstate the employee in his previous job, the body that made such a decision issues a ruling on payment to the employee for the entire time of the delay in the execution of the decision on average earnings or the difference in earnings.

In case of violation by the employer due date salary payments, vacation pay, dismissal payments 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 refinancing rate in force at that time Central Bank the Russian Federation from the amounts not paid on time, for each day of delay starting from the next day after the due date of payment until the day of actual settlement inclusive.

Payments in case of accidents and occupational diseases to the injured worker are made not by the employing organization, but by the Social Insurance Fund. The employer compensates the employee for harm in excess of the insurance coverage, if this is provided for by a collective agreement or industry (tariff) agreement. An analysis of these acts shows that they can provide for employees who have received a disability from an accident or occupational disease, lump sum payments (the amount of which depends on the disability group), as well as monthly payments as a percentage of the average monthly salary (the amount of which depends on the percentage of disability).

In addition, Article 237 of the Labor Code of the Russian Federation provides for the obligation of the employer to compensate the employee for non-pecuniary damage.

Article 51 Civil Code Moral harm is physical or moral suffering caused by actions that violate the personal non-property rights of a citizen (for example, life and health, personal dignity, personal integrity, honor and good name, business reputation, privacy, personal and family secrets, etc.). P.).

Moral damage caused to the employee by unlawful actions or inaction of the employer is compensated to the employee in cash in the amount determined by agreement of the parties to the employment contract. In the event of a dispute, the fact of causing moral damage to an employee and the amount of its compensation are determined by the court, regardless of the property damage subject to compensation.
Conclusion

From the foregoing, we can conclude that the institution of liability in the field of labor relations plays an important role in the development of the rule of law.

The interests of the employer and the employee hired by him often do not coincide, therefore, a clash of these interests is possible at any stage of the existence of an employment relationship. This, in turn, leads to conflicts.

The Labor Code, in contrast to the previous legislation, more fully, taking into account the newly emerged objective economic realities, regulates the legal relationship between the employee and the employer in the area of liability.

A clear regulation of this sphere of labor relations should reduce social tension in society and eliminate one of the causes of labor conflicts.

At the same time, a clear delineation of material liability in the field of labor relations from civil liability makes it possible to more fully protect the rights and legally protected interests of both the employee and the employer.

Today Russian society gradually comes to an understanding of law as a means of reaching agreement and compromise. We are witnessing that the participants in labor relations are beginning to gradually turn towards the negotiation process. The state, with the help of law, creates a mechanism aimed at mutual consideration of the interests of the parties to labor relations. However, one cannot overestimate the role of law, which by itself is not able to solve political and economic problems. Therefore, it is extremely important to have norms in the legal system that guarantee a mechanism for considering conflicts, their fair resolution and implementation of the decisions made.

Bibliography

The Constitution of the Russian Federation of December 12, 1993 // Rossiyskaya Gazeta - December 25. - 1993. - No. 237

Civil Code of the Russian Federation. Part one of November 30, 1994 No. 51-FZ (as amended by the Federal Law of July 27, 2006 No. 128-FZ) // Russian newspaper - December 8. - 1994. - No. 238-239; 26 July. – 2005

Labor Code of the Russian Federation of December 30, 2001 No. 197-FZ (as amended by Federal Law No. 90-FZ of 06/30/2006)) // Collection of Legislation of the Russian Federation. - 2002. - No. 1 (part I). - Art. 3

Bugrov L.Yu. Problems of freedom of labor in the labor law of Russia. - Perm, 2004. - 166 p.

Gusov K.N., Tolkunova V.N. Labor law of Russia. Textbook. - M.: TK Velby, 2005. - P.171

The material liability of an employee is regulated by the norms of Chapter 39 of the Labor Code of the Russian Federation, the Regulations on the material liability of workers and employees for damage caused to an enterprise, institution, organization, approved by Decree of the Presidium of the USSR Armed Forces dated July 13, 1976 No. 4204-IX (applies to the extent that it does not contradict the Labor Code of the Russian Federation and etc.

According to Article 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for the direct actual damage caused to him. Direct actual damage is understood as a real decrease in the employer’s cash property or deterioration of the said property (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs or excessive payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties.

According to Article 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for the direct actual damage caused to him. The obligation of the employee to compensate for the damage caused also arises in the event that the employee causes harm to third parties in the event that the employer compensated for this damage on behalf of his employee.

The Labor Code of the Russian Federation limits the liability of the employee: lost income (lost profit) is not subject to recovery from the employee.

The Labor Code of the Russian Federation also establishes full liability for certain categories of workers. Distinguish between individual and collective (team) liability.

The head of the organization and, as a rule, bear full individual responsibility for damage caused to the organization.

Example 1. From the consulting practice of CJSC " BKR -Intercom-Audit.

Having considered your question on the merits, we report the following:

Question:

Is it necessary to conclude agreements on full financial responsibility for buildings, structures, machines and communications. If necessary, then with whom (who should be responsible for buildings, communications, machines).

1. Full liability of employees.

In accordance with Art. 238 Labor Code RF, the employee is obliged to compensate the employer for the direct actual damage caused to him.

The liability of an employee may be full or limited to the average earnings of the employee. The full liability of the employee consists in his obligation to compensate for the damage caused in full and can be assigned to the employee only in cases provided for by the Labor Code or other federal laws.

Article 243 of the Labor Code of the Russian Federation provides for cases when an employee bears full financial responsibility. Such cases include:

1. When, in accordance with the Labor Codes of the Russian Federation or other federal laws, the employee is held liable for damage caused to the employer in the performance of labor duties by the employee;

2. Lack of valuables entrusted to him on the basis of a special written agreement

(Article 244 of the Labor Code of the Russian Federation - written agreements on full liability; Art. 245 of the Labor Code of the Russian Federation - collective (team) liability for damage) or received by him under a one-time document. According to one-time documents, the property of the employer can be entrusted to forwarders, couriers, heads of branches, departments, etc. In all these cases, the employee must, in accordance with the established procedure, account for the property entrusted to him, and in case of her death, damage or other deterioration in condition, he must fully compensate for the damage caused;

3. Intentional damage.

Intentional damage means thatthe guilty employee is aware that he is acting illegally, foresees that as a result, for example, the employer will be damaged by the fact that the machine will be disabled, communications will be damaged, etc., and wishes these consequences to occur (direct intent) or at least directly does not want this, but consciously allows such consequences or treats them indifferently (indirect intent), for example, when an employee operates a machine with unacceptable overloads (in order to identify its limiting capabilities), although he does not want this machine to break down directly. In addition, the damage must be real (for example, a damaged machine), i.e. unlawful behavior in itself is not a sufficient basis for bringing to liability;

4. Causing damage in a state of alcohol, drugs or toxic

Intoxication. When analyzing this legal norm, the following should be taken into account: drunkenness, as well as toxic and narcotic intoxication of an employee, can be confirmed by a medical report (see the Temporary Instruction of the USSR Ministry of Health (still in force) “On the procedure for a medical examination to establish the fact of alcohol consumption and the state of intoxication” dated 09/01/1988), as well as other types of evidence (for example, witness testimony, this rule is confirmed by paragraph 3 of clause 37 of the Resolution of the Supreme Court of the Russian Federation No. 16). The fact that the employee is in the specified state at work, the employer must draw up a protocol, which is drawn up by the administration, security workers of the organization (if any), police officers, etc .;

5. Causing damage as a result of the criminal actions of the employee, established court verdict;

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

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

According to Art. 39 of the Civil Code of the Russian Federation, information constitutes an official or commercial secret in the case when the information has actual or potential commercial value due to its unknown to third parties, there is no free access to it on legal basis and the owner of the information takes measures to protect its confidentiality. Information that cannot constitute an official or commercial secret is determined by law and other legal acts;

8. Causing damage not in the performance of work duties.

When the damage is doneby an employee who, at the time of the damage, was not fulfilling his labor duties, for example, during a lunch break, when an employee, passing by an expensive vessel, inadvertently touched and broke it, and it crashed. However, damage can also be caused outside the organization. For example, the driver of a car belonging to an organization decided to take a car ride around the city after work and crashed the car, etc. as a result of an accident. However, in any case, the organization must prove that the damage was caused by the employee not in the performance of his job duties.

In addition, material liability in the full amount of damage caused to the employer can be established by an employment contract concluded with the head of the organization. Deputy directors, chief accountant.

2. Written agreements on full liability

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

Decree of the Ministry of Labor and social development RF dated 31.12.200. No. 85, approved the List of positions and works replaced or performed by employees with whom the employer can conclude written agreements on full individual liability for the shortage of entrusted property.

This list includes:

1. Cashiers, controllers, cashier-controllers (including senior ones), as well as other employees performing the duties of cashiers (controllers).

Managers, their deputies, specialists and other employees engaged in: 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 Russia 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; cash operations 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 banking, credit, discount cards, cash and other financial services for customers, for the calculation, recalculation or formation of cash and currency values; cash collection functions and transportation (transportation) Money and other valuables (including drivers-collectors), as well as other employees performing similar functions.

Directors, managers, administrators (including senior, chief), other heads of organizations and divisions (including sections, receptions, 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 masters (including senior, chief) of construction and assembly works.

Heads, other heads of warehouses, pantries (points, branches), pawnshops, storage rooms, other organizations and departments for procurement, transportation, storage, accounting and issuance material assets, their deputies; household managers, commandants of buildings and other structures, storekeepers, custodians; elder nurses healthcare organizations; procurement and / or supply agents, forwarding agents for transportation 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.

Laboratory assistants, methodologists of departments, deans, heads of libraries sectors.

2. 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 destruction in the prescribed manner of banknotes, securities issued by a credit or other financial institution and / or the Ministry of Finance of Russia 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: for 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, at sites, in other organizations and divisions; for the issuance (reception) of material assets to persons staying in sanatorium-resort and other medical and preventive organizations, boarding houses, campsites, motels, rest houses, hotels, hostels, rest rooms on transport, children's organizations, sports and recreational and tourist organizations, in educational organizations, as well as passengers of all types of transport; for equipping passenger ships, wagons and aircraft.

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 other operations with them; for the issuance of rental 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 values, their delivery (escort), issue (delivery).

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: for 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.

3. Collective (team) liability for damage

According to Art. 245 of the Labor Code of the Russian Federation, when employees jointly perform certain types of work related to 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 damage in full, collective (brigade) liability may be introduced.

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

Based on the foregoing, I would like to draw your attention to the following:

The legislation clearly defines the list of persons with whom the legislator allows the conclusion of agreements on full liability. The above list is exhaustive and does not allow for broad interpretation. Thus, the conclusion of an agreement on full liability with a person not included in this list is illegal. Such an agreement is invalid those. it is impossible to bring the employee to material liability, as well as to recover damage from him on the basis of such an agreement.

However, Art. 238 of the Labor Code of the Russian Federation provides that the employee is obliged to compensate the employer for the direct actual damage caused to him. The amount of such damage is limited to the average wage of the employee.

In addition, I draw your attention to the fact that only persons who have concluded with the employer. Persons performing work for the employer under civil law contracts (for example, work contracts, assignments, transport expeditions, etc.) bear not material, but property liability in accordance with the norms of the Civil Legislation of the Russian Federation.

With a literal interpretation of the question posed by you, in essence I report the following: the conclusion of contracts with employees of the organization on full liability for buildings, structures, machines and communications is illegal. Such an agreement has no legal force, because. does not comply with the current labor legislation of the Russian Federation.

End of example.

In addition, if a civil law contract is concluded with an employee (for example, on the provision of services or a contract), then the damage is compensated in the manner prescribed by civil law. Article 15 of the Civil Code of the Russian Federation provides for full compensation for damage, including lost income (lost profits).

Full individual financial responsibility of the employee.

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

Full material liability of employees under the age of 18 is provided for by Article 242 of the Labor Code of the Russian Federation only in the following cases:

Intentional damage;

Causing damage in a state of alcoholic, narcotic or other toxic intoxication;

Causing damage as a result of a crime or administrative offense.

According to part 1 of article 244, written agreements on full individual liability, that is, on compensation to the employer for damage caused in full for the lack of property entrusted to employees, can be concluded with employees who have reached the age of eighteen and directly serve or use monetary, commodity values or other property .

Example 2

According to the Ruling of the Supreme Court of the Russian Federation dated April 18, 2006 No. 5-G06-38, the case for the recovery of damage caused as a result of the unlawful actions of the tortfeasor was sent for a new trial due to incomplete investigation of the circumstances of the case during the trial.

End of example.

Example 3

According to the Decree of the Federal Antimonopoly Service of the East Siberian District of May 19, 2005 in case No. A33-21565 / 04-C2-F02-2156 / 05-C2, the case on a claim for debt collection under a sales contract was sent for a new consideration, since the court of first instance the norms of substantive law were incorrectly applied, and the question was not clarified by whom the received goods were used by the defendant's officials or by himself.

End of example.

Note!

In accordance with new edition Article 244 of the Labor Code of the Russian Federation, written agreements on full individual or collective (team) liability (clause 2 of part 1 of Article 243 of the Labor Code of the Russian Federation) with employees directly servicing material assets, that is, on compensation to the employer for damage caused in full for the shortage of property entrusted to employees, may be included, or may not be. In the absence of such an agreement or the absence of a corresponding entry in the employment contract, it will be much more difficult to prove the employee’s guilt and hold him responsible for the loss of entrusted property.

The Labor Code of the Russian Federation in Article 244 provides for the conditions under which an agreement on full liability can be concluded:

the person must be an employee of this organization, the conclusion of agreements on full liability with persons working under civil law contracts is not allowed;

Reaching the age of 18 by the employee;

with an employee who directly serves material values;

The position or work of this employee is provided for in the list of jobs and categories of employees established by the Government of the Russian Federation.

The lists of works and categories of employees with whom this contract can be concluded, as well as the form of the contract, are approved by the Decree of the Ministry of Labor of the Russian Federation dated December 31, 2002 No. full individual or collective (team) liability, as well as standard forms of agreements on full liability” (hereinafter referred to as the Decree of the Ministry of Labor No. 85).

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 is approved in Appendix No. 1 to the Decree of the Ministry of Labor No. 85.

The standard form of an agreement on full individual responsibility is approved in Appendix No. 2 to the Decree of the Ministry of Labor No. 85:

Appendix N 2 to the Decree of the Ministry of Labor and Social Development of the Russian Federation of December 31, 2002 N 85

STANDARD FORM OF AGREEMENT ON FULL INDIVIDUAL LIABILITY

_____________________________________________________________,

(surname,

Or his deputy ________________________,

name, patronymic) (surname, name,

patronymic)

acting on the basis _______________________________________,

(charter, regulations, powers of attorney)

on the one hand, and _______________________________________________

(Job title)

__________________________________________________________________

_________________________________________________________________,

(Full Name)

hereinafter referred to as the "Employee", on the other hand, have entered into this Agreement as follows.

1. The Employee assumes full financial responsibility for the lack of property entrusted to him by the Employer, as well as for damage incurred by the Employer as a result of compensation for damage to other persons, and in connection with the foregoing undertakes:

a) take care of the property of the Employer transferred to him for the implementation of the functions (duties) assigned to him and take measures to prevent damage;

b) promptly inform the Employer or immediate supervisor of all circumstances that threaten the safety of the property entrusted to him;

c) keep records, draw up and submit, in accordance with the established procedure, commodity-money and other reports on the movement and balances of the property entrusted to him;

d) participate in the inventory, audit, other verification of the safety and condition of the property entrusted to him.

2. The employer undertakes:

a) create the conditions necessary for the Employee to normal operation and ensuring the complete safety of the property entrusted to him;

b) familiarize the Employee with the current legislation on the liability of employees for damage caused to the employer, as well as other regulatory legal acts (including local ones) on the procedure for storage, acceptance, processing, sale (vacation), transportation, use in the production process and implementation of other operations with the property transferred to him;

c) carry out, in accordance with the established procedure, an inventory, audits and other checks of the safety and condition of the property.

3. The determination of the amount of damage caused by the Employee to the Employer, as well as the damage incurred by the Employer as a result of compensation for damage to other persons, and the procedure for their compensation are carried out in accordance with applicable law.

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

5. This Agreement shall enter into force upon its signing. This Agreement shall apply to the entire period of work with the property of the Employer entrusted to the Employee.

6. This Agreement is drawn up in two copies of equal legal force, one of which is with the Employer, and the second - with the Employee.

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

Addresses of the parties to the Agreement: Signatures of the parties to the Agreement:

Employer ______________ ___________________________

Worker __________________ ___________________________

Date of conclusion of the Agreement Place of seal

Regardless of whether full liability is fixed in the employment contract (additional agreement on full liability) or not, liability in the full amount of the damage caused is assigned to the employee in accordance with Article 243 of the Labor Code of the Russian Federation in the following cases:

Full material liability for this category of employees occurs regardless of whether an agreement on full material liability is concluded with them or not.

So, for example, in accordance with Article 277 of the Labor Code of the Russian Federation, the head of the organization is fully liable.

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

Full material liability may be borne by an employee with whom an agreement on full individual material liability has been concluded or a group of employees with whom an agreement on full brigade liability has been concluded. One-time documents for receiving material assets can be issued to an employee with whom an agreement on full individual responsibility has not been concluded only if the employee with whom such an agreement has been concluded does not have the opportunity to perform this work. Such a document is issued to a non-financially responsible person only with his consent.

3) intentional infliction of damage;

In order to bring the employee who caused the damage to full liability on this basis, the employer must prove that the shortage, loss, damage and other damage to property occurred as a result of the employee’s intentional actions. In the event that in the actions of the employee there was no intent to cause damage to the property of the employer, then he will be responsible within the limits of his average monthly earnings.

4) infliction of damage in a state of alcoholic, narcotic or other toxic intoxication;

Full material liability for an employee who caused damage in a state of alcoholic, narcotic or other toxic intoxication occurs regardless of the intent to cause damage, because the presence of an employee at work in such a state is in itself a gross violation labor discipline. In this case, the employer, in order to be fully liable on this basis, must prove that the damage caused by the fault of this employee occurred when he was in a state of alcoholic, narcotic or other toxic intoxication.

5) causing damage as a result of the criminal actions of the employee, established by a court verdict;

On this basis, an employee against whom a criminal case has been initiated or any investigative actions are being carried out cannot be held liable. In this case, we are talking about bringing to full liability an employee whose fault in causing damage to the employer will be proven by a court verdict.

6) causing damage as a result of an administrative offense, if such is established by the relevant state body;

Example 4

According to the Decree of the Federal Antimonopoly Service of the North-Western District dated May 22, 2006 No. A56-28918 / 2005, the case on a claim for recovery of damage caused by an accident from the Company was sent for a new trial, since the respondent's driver was not involved in the case, the size, whose liability to the employer was actually predetermined by the courts of first and appeal instances.

End of example.

In this case, the basis for bringing to full liability is the fact of causing damage. this employer established by the state body authorized to consider cases of administrative offenses. It does not matter what type of punishment was imposed on the employee for this offense. Article 22.1 of the Code of Administrative Offenses of the Russian Federation gives a list of bodies authorized to consider cases of administrative offenses.

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

This rule is practically not applied, since laws regulating bringing an employee to full liability on this basis have not yet been adopted.

8) infliction of damage not in the performance of labor duties by the employee.

To bring the employee to full liability on this basis, it does not matter when such damage was caused during the employee’s working hours, when he was not directly engaged in the performance of his duties (he conducted personal long-distance negotiations by phone) or during his non-working hours, for example,

using vehicle employer for personal purposes, committed an accident. In both cases, the employee will be held fully liable, since the damage to the employer was caused precisely during non-working hours.

Example 5

According to the Decree of the FAS of the North-Western District of July 28, 2006 in case No. A52-469 / 2006 / 1, the complaint that the proper defendant in the case of recovery of damage caused by an accident is not the Company, but its driver was left without satisfaction.

End of example.

As follows from question No. 21 of the Review of the Judicial Practice of the Supreme Court of the Russian Federation dated February 9, 2005 “Review of the Judicial Practice of the Supreme Court of the Russian Federation for the Fourth Quarter of 2004”:

“... 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 by way of recourse for compensation for damage caused by the employee to third parties, then the specified 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.

The above grounds for bringing an employee to full individual responsibility are common to all employees. We consider it necessary to consider separately the grounds for bringing the officials of the organization to individual liability.

Grounds for bringing to liability of officials of the organization.

The essence of the civil liability of the chief accountant and the head of the organization is compensation for harm by the employee who caused damage to the organization.

The legal basis for bringing these persons to liability is Article 1064 of the Civil Code of the Russian Federation, according to which damage caused to the property of a legal entity is subject to compensation in full by the person who caused the damage. Since the civil (or material) liability of the chief accountant and the head of the organization is closely related to labor relations, this rule does not apply. However, the Labor Code of the Russian Federation also contains a rule on liability. According to Article 243 of the Labor Code of the Russian Federation, in an employment contract concluded with the chief accountant, deputy heads, it is possible to establish a condition on the full liability of the head.

At the same time, as mentioned earlier, in accordance with Article 277 of the Labor Code of the Russian Federation, the head of the organization bears full liability for direct actual damage caused to the organization, regardless of whether an agreement on full liability was concluded with him or not.

In cases stipulated by federal laws, the head of an organization shall compensate the organization for losses caused by his guilty actions. In this case, the calculation of losses is carried out in accordance with the norms provided for by civil law. According to Article 15 of the Civil Code of the Russian Federation, losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (actual damage), as well as lost income that this person would have received under normal conditions civil turnover, if his right had not been violated (lost profit).

If the person who violated the right received income as a result of this, the person whose right was violated has the right to demand compensation, along with other losses, for lost profits in an amount not less than such income.

According to Article 44 of Law No. 14-FZ, as well as Article 71 of Law No. 208-FZ, members of the board of directors of the company, the sole executive body of the company, members of the collegial executive body of the company, as well as the manager are liable to the company for losses caused to the company by their guilty actions ( inaction), unless other grounds and amount of liability are established by federal laws.

Example 6

According to the Decree of the Federal Antimonopoly Service of the Urals District dated July 13, 2006 No. Ф09-5998 / 06-С5, the case on the claim for the exclusion of the deputy director of the company from the participants of the company in connection with his illegal actions and actions that significantly impede the activities of the company was sent for a new consideration.

End of example

Example 7

According to the Ruling of the Supreme Court of the Russian Federation dated May 30, 2002 in case No. 14-В01-31, the claims of the Company against the defendant, who acted as the general director, for the recovery of damage caused to the Company were legitimately satisfied, since the sole executive body of the company (director,) and (or) members of the collegiate executive body of the company (board, directorate), are liable to the company for losses caused to the company by their guilty actions (inaction), unless other grounds and amount of liability are established by federal laws.

End of example.

At the same time, members of the board of directors of the company, members of the collegial executive body of the company who voted against the decision that caused losses to the company, or who did not take part in the voting, are not liable.

In accordance with Article 25 of Law No. 161-FZ, the head unitary enterprise bears liability in accordance with the procedure established by law for losses caused to the unitary enterprise by its guilty actions (inaction), including in the event of loss of property of the unitary enterprise.

In the context of labor legislation, speaking of liability for damage resulting from a violation by an employee of labor relations of his duties (Article 21 of the Labor Code of the Russian Federation), the following conditions must be present:

Illegality of actions (inaction) of the tortfeasor

Guilty (in the form of intent or negligence) of the party in causing damage;

The causal relationship of action (inaction) and the consequences in the form of damage caused.

As seen, necessary element holding the manager accountable is the fault. Guilt can be both in the form of intent, that is, the leader wished or foresaw the possibility of adverse consequences, and in the form of negligence, that is, the leader did not want, but could foresee the adverse consequences of his actions.

Thus, we note that the head of the organization bears an increased responsibility compared to other employees. The legislation of the Russian Federation does not provide for the mitigation of liability by an employment contract or other act.

In addition, an agreement on full liability can be concluded with the head of the organization if it belongs to the list approved by Decree of the Ministry of Labor No. 85):

heads of organizations engaged in depository activities; examination, verification of authenticity and other verification, as well as destruction in the prescribed manner of banknotes, securities issued by a credit or other financial institution and / or the Ministry of Finance of Russia 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; cash operations 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; cash collection functions and transportation (transportation) of cash and other valuables (including drivers-collectors), as well as other employees performing similar functions;

heads of organizations of trade, public catering, consumer services, hotels (camping sites, motels);

heads of warehouses, storerooms (points, branches), pawnshops, lockers, other organizations for the procurement, transportation, storage, accounting and issuance of material assets;

heads of pharmacy and other pharmaceutical organizations.

Consider the most common situations of bringing the head of the organization to liability.

As already mentioned, the leader is responsible for causing losses to the organization. Often such losses arise when transactions are made (for example, transactions with interest). Shareholders, members of the company or the owner of the property of a unitary enterprise have the right to appeal against the actions of the head of transactions. In addition, if there is fault, losses caused to the organization can be recovered from the head. In this case, a situation arises when it is necessary to prove a causal relationship between the actions of the leader and the consequences that have occurred. The burden of proving a causal relationship (its absence) rests with the manager. The absence of such a connection means the innocence of the leader.

Example 8

According to the Decree of the Federal Antimonopoly Service of the Moscow District dated May 31, 2005 in case No. KG-A40 / 4395-05, the case on the recovery of losses caused to the CJSC as a result of the defendant's dishonest actions as the general director was sent for a new trial due to the fact that the type of recoverable losses and the procedural position of the CJSC in the case was not determined, as well as the circle of circumstances included in the subject of proof was incorrectly determined.

End of example.

It is also necessary to determine the degree of guilt of the manager - as a result of which damage was caused: as a result of force majeure (force majeure), as a result of an incompetent decision of the manager (entrepreneurial risk), as a result of a deliberate action of the manager, etc. The lack of guilt of the leader indicates his innocence.

In proving the presence or absence of a causal relationship between the actions of the leader and the adverse consequences that have occurred, conducting independent audit.

One of the ways to prevent liability or mitigate it is the liability insurance of the head, which is carried out at the expense of the organization.

According to Article 11 of the Federal Law of July 29, 2004 No. 98-FZ "On Trade Secrets" (hereinafter referred to as the Law No. 98-FZ) labor contract with the head of the organization, among other things, should provide for his obligations to ensure the protection of the confidentiality of information owned by the organization and its counterparties, and responsibility for ensuring the protection of its confidentiality.

In case of violation of the legislation on trade secrets (for example, disclosure of secrets or failure to ensure the conditions for keeping secrets), the head of the organization compensates the organization for losses caused by such actions. In this case, losses are determined in accordance with civil law (Article 15 of the Civil Code of the Russian Federation).

Again, in each case, it is necessary to establish a causal relationship between the actions of the leader and the consequences that have occurred, as well as the degree of guilt of the leader.

It should be noted that if there is a corpus delicti or an administrative offense in the actions of the head of the organization, the head of the organization may be held criminally or administratively liable. In addition, such actions usually entail disciplinary responsibility in the form of layoffs.

The head of the organization is responsible for bringing the organization to bankruptcy. In accordance with Article 56 of the Civil Code of the Russian Federation, if the insolvency of the organization is caused by the actions of a person who has the right to give instructions binding on this legal entity (the head of the organization also belongs to these), such person, in the event of insufficient property of the legal entity, may be held subsidiary liable for the obligations of this legal entity (in practice, as a rule, such cases occur in relations between subsidiaries or affiliates and the main ones).

Please note that in cases established by law, the head may be held criminally or administratively liable.

In addition, according to Article 10 of Federal Law No. 127-FZ of October 26, 2002 “On Insolvency (Bankruptcy)” (hereinafter referred to as the Bankruptcy Law), if the head of the debtor violates the provisions of this Law, the head is obliged to compensate for the losses caused as a result of such violations.

In particular, the failure to file a debtor's application with an arbitration court in the cases and within the time period established by Article 9 of the Bankruptcy Law entails subsidiary liability of the head of the organization for the debtor's obligations that arose after the expiration of the one-month period during which the application for declaring a legal entity insolvent. Other violations of bankruptcy laws are possible, but in any case, the head of the debtor, if a violation is admitted, bears subsidiary liability.

Laws may establish other grounds for the responsibility of the head of the organization. Thus, according to paragraph 4 of Article 5 of the Federal Law of March 5, 1999 No. 46-FZ “On the Protection of the Rights and Legitimate Interests of Investors in the Securities Market”, persons who signed the prospectus for the issue of securities bear joint and several subsidiary liability for damage caused by the issuer to the investor as a result of false and (or) misleading information contained in the said prospectus. According to paragraph 2 of Article 22.1 of the Federal Law of April 22, 1996 No. 39-FZ "On the Securities Market", the securities prospectus must be signed by the head of the organization, as well as the chief accountant. Thus, in this case, the responsibility will be borne by the head and chief accountant of the organization.

As noted earlier, the Labor Code of the Russian Federation limits the liability of the employee: lost income (lost profit) is not subject to recovery from the employee.

As a general rule, the amount of an employee's liability cannot exceed the average monthly salary.

According to Article 243 of the Labor Code of the Russian Federation, in an employment contract concluded with the chief accountant, it is possible to establish a condition on the full liability of the chief accountant. The legislation does not prohibit when hiring a chief accountant to conclude an additional agreement on the full liability of the latter. Moreover, Article 244 of the Labor Code of the Russian Federation says that agreements on full liability, that is, on compensation to the employer for the damage caused in full for the lack of property entrusted to employees, can be concluded with employees who have reached the age of eighteen and directly serve or use money, commodity values or other property (the chief accountant, of course, belongs to this category).

In the event that the employment contract does not provide for a condition on full material liability and an agreement on full material liability has not been concluded, the maximum amount of liability for damage is the average monthly earnings of the employee (Article 241 of the Labor Code of the Russian Federation).

On the basis of paragraph 9 of Article 81 of the Labor Code of the Russian Federation, the employer has the right to terminate the contract with the head and the chief accountant if they make an unreasonable decision that entails a violation of the safety of property, its misuse or other damage to the property of the organization.

In conclusion, we note that, according to Article 1068 of the Civil Code of the Russian Federation entity responsible for the harm caused by his employee (including the head and the chief accountant) in the performance of his labor duties. In this case, the organization has the right to subsequently recover from the employee the costs incurred when holding the organization liable for its employee (recourse requirements).

For more information on the grounds for bringing to liability the employees of the organization, including the director and officials of the organization, the procedure for bringing to such liability, as well as the procedure for recovering damages, you can find in the book of CJSC "BKR-INTERCOM-AUDIT" "Liability ".

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

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

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

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

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

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

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

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

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

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

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

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

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

An employee who has concluded an agreement on full liability with a private entrepreneur is liable full responsibility for ensuring the safety of those valuables that he personally received on the basis of an invoice or other accounting document, despite the fact that in some cases other persons (for example, auxiliary workers) have access to these valuables.

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

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

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

financially responsible person must participate in the inventory of the values entrusted to him, and the administration of the employer company is obliged to create conditions for the employee to work normally and ensure the complete safety of the values entrusted to him, to acquaint him with the current legislation on liability, as well as other regulations on the procedure for storage, acceptance, processing, sales, holidays, transportation and other transactions with valuables.

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

About full financial responsibility

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

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

Article 243. Cases of full liability

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

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

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

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

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

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

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

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

Limitation of deductions from wages

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

Extract from the Labor Code of the Russian Federation

Article 138. Limitation of the amount of deductions from wages

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

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

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

Article 248. Procedure for recovery of damage

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

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

The employee did not fulfill his duties

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

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

Respondent's position

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

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

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

Justification of the position of the court

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

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

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

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

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

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

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

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

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

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

At the same time, the unlawfulness of the employee's behavior consists in non-performance or improper performance official duties, which are spelled out in the job description and signed by the employee.

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

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

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

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

Court statement

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

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

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

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

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

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

Claimant's position

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

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

Justification of the position of the court

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

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

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

Court statement

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

In this regard, the LLC was found guilty of committing an administrative offense under Part 2 of Art. 14.4 of the Code of Administrative Offenses of the Russian Federation, he was sentenced to an administrative penalty in the form of a fine, which was paid in statutory terms.

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

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

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

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

Conclusion of agreements on full liability with minors

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

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

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

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

The employee refuses to conclude an agreement on full liability

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

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

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

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

Thus, the legal grounds for concluding agreements on full liability in such a situation with the above individuals not available. At the same time, within the framework of the Civil Code of the Russian Federation, the organization may include in the contract with the specified persons provisions providing for responsibility for the safety of material assets belonging to the organization.

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

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

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

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

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

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

An exemplary contract with an employee on full individual liability.

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

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

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

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

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

Appendix

An approximate form of an agreement on full individual liability

Agreement on full individual liability

Moscow "__"______2006

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

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

2. The employee undertakes:

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

3. The employer undertakes:

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

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

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

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

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

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

Addresses and signatures of the parties to the Agreement.

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

What is the full financial responsibility of the employee. Punishment to the fullest extent

General information

Conditions

Nuances

Cases of limited material liability of employees

Pinning in local documents

Conditions for the imposition of penalties

Exceptions

Explanatory

Liability Rules

The amount of the penalty

Features of the trial

Full matresponsibility

Cases of full liability

Important point

Article 239. Circumstances excluding material liability of an employee

Article 240

Article 241. Limits of material liability of an employee

Article 242. Full liability of an employee

Article 243. Cases of full liability

Article 244. Written agreements on the full liability of employees

Article 245

Article 246. Determining the amount of damage caused

Article 247

Article 248. Procedure for recovery of damage

Article 249. Reimbursement of expenses associated with employee training

Article 250

Example 1. From the consulting practice of CJSC " BKR -Intercom-Audit.

Full individual financial responsibility of the employee.

Grounds for bringing to liability of officials of the organization.

About full financial responsibility

Limitation of deductions from wages

Extract from the Labor Code of the Russian Federation

The employee did not fulfill his duties

Respondent's position

Justification of the position of the court

Court statement

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

Claimant's position

Justification of the position of the court

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

Conclusion of agreements on full liability with minors

The employee refuses to conclude an agreement on full liability

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

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

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

An exemplary contract with an employee on full individual liability.

An approximate form of an agreement on full individual liability

Agreement on full individual liability

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