3 types of liability

The employee comes in case of causing damage to the employer, if the employer proves:

• the fact of causing material damage to him;
• an offense committed by an employee, i.e. a guilty act or omission, as a result of which damage was caused;
• the presence of a causal relationship between the action or inaction of the employee in the labor process, which caused damage;
• the amount of damage;
• in cases prescribed by law, the existence of an agreement on the full liability.

For this purpose, the employer conducts an inspection of the labor behavior of the employee who caused property damage. In necessary cases, a special commission is created. Relevant specialists are included in its composition by order of the employer.

The employee is required to provide a written explanation of the reason for the property damage caused by him. The employee is obliged to give such an explanation by virtue of Part 2 of Art. 247 of the Labor Code of the Russian Federation. In case of refusal or evasion of the employee to provide an explanation, the employer draws up an appropriate act. In part 2 of Art. 247 of the Labor Code of the Russian Federation does not fix the period necessary for giving explanations. Since liability is based on the offense, disciplinary offense, then in this case the period provided for in Part 1 of Art. 193 of the Labor Code of the Russian Federation - two working days.

Unlike the employee, not only has the right to familiarize himself with all the materials of the verification of his offense that caused material damage, appeal against them, make petitions, i.e. contribute to the objectivity of the verification, but also involve a representative for this purpose (part 3 of article 247 of the Labor Code of the Russian Federation ). Such a representative may be a specialist who, in the opinion of the employee, wears necessary knowledge for an objective, complete and legal analysis of the accusations against the employee of committing an offense that caused material damage to the organization.

Under current legislation, the employer is compensated only for direct actual damage. The employee does not compensate for the income not received as a result of the offense (lost profit). They are in accordance with Part 1 of Art. 238 of the Labor Code of the Russian Federation "are 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 its condition (including the property of third parties held by the employer, if he is responsible for its safety), as well as the need for the employer to incur costs or excessive payments for the acquisition, restoration of property or to compensate for damage caused by the employee to third parties.

According to the current labor legislation, the material liability of an employee is limited to his average monthly earnings. Therefore, it is called limited. The limited amount of compensation for damage is explained not only by the legislator's concern for protecting the interests of the employee, but also by working conditions. During the working day, especially towards the end, the employee often has a decrease in self-control, an assessment of the danger that is always present when handling machines, tools, materials, semi-finished products, i.e., a situation is created that contributes to the production of defective products, tool breakage, increased wear means of production.

If the property damage does not exceed the average monthly earnings of the employee, the employer, with the consent of the employee, within a month may issue an order to recover the damage caused. This period is calculated from the date of completion of the inspection, establishment by the employer of the amount of damage caused by the employee.

An employer must go to court to recover damages if:

• the employee does not agree to voluntarily compensate for the property damage caused;
• the amount of such damage exceeds his average monthly earnings;
• the employee quit and he has an outstanding debt for the damage he caused to the property of the employer.

The employee may, on his own initiative, compensate the damage caused to the organization in full or in part. The installment plan is established by agreement of the parties. The employee gives a written obligation to compensate for damage, indicating specific terms and amounts of payments.

With the consent of the employer, the employee can compensate for the damage by transferring property of equal value to the employer or repairing the damaged one.

The employer may refuse to recover damages, reduce its size, involve the employee in disciplinary responsibility send materials to law enforcement if the damage was caused by an administrative offense or a crime.

The legislator, in certain cases, establishes full financial liability of the employee for damage caused by him to the employer. It differs in content offenses and by subject matter.

In Art. 243 of the Labor Code of the Russian Federation, cases of the onset of full liability of an employee are fixed:

• a situation where labor legislation imposes material liability on an employee for damage caused by him to the employer in the performance of job duties(full liability, for example, comes from the telecom operator on the basis of federal law dated July 7, 2003 No. 126-FZ "On Communications");
• shortage of valuables entrusted to the employee on the basis of a special written agreement or received by him under a one-time document;
• deliberate infliction of damage by the employee to the property of the employer;
• causing damage in a state of alcoholic, narcotic or other toxic intoxication;
• causing damage as a result of a crime committed by an employee and established by a court verdict;
• infliction of damage by an administrative offense of an employee, if measures of administrative influence were applied to the employee or the fact of causing damage to the property of the employer was established;
• disclosure of information constituting a state, official, commercial or other secret protected by law, if this is provided for by federal law, for example, “On Commercial Secrets”;
• causing damage not in the course of performance by the employee of his labor duties, i.e. damage is caused by the employee in his spare time. At the same time, he uses the means of production belonging to the employer, as a rule, in his own interests.

According to the subject composition, the legislator highlights the features of full liability under the employer's agreement with the deputy head of the organization, the chief accountant (part 2 of article 243 of the Labor Code of the Russian Federation). The head of the organization bears full liability for direct actual damage caused to the organization (part 1 of article 277 of the Labor Code of the Russian Federation). In the cases provided for by law, he also compensates for the losses caused by his guilty actions, in accordance with the norms of civil law (part 2 of article 277 of the Labor Code of the Russian Federation).

An employee under the age of 18 is fully liable for damage caused to the employer only:

• for intentional damage;
• if the damage was caused by a minor employee in a state of alcoholic, narcotic or other toxic intoxication;
• for damage caused as a result of an administrative offense or crime (part 3 of article 242 of the Labor Code of the Russian Federation).

Full financial responsibility of the employee may also be based on contract. Such an agreement is concluded with an adult employee when hiring, if in order to perform labor function material, monetary values ​​are transferred (entrusted) to him. The agreement is usually concluded when the employee enters the organization at the same time as employment contract. The standard form of an agreement on full liability was approved by the Ministry of Labor and social development RF December 31, 2002 The individual agreement provides for the rights and obligations of the employee and the employer. In particular, the obligation of the employer to create the conditions for the employee necessary for normal work and ensuring the complete safety of the property entrusted to him is stipulated. As a rule, failure to fulfill this obligation releases the employee from liability in whole or in part. The contract is drawn up in two copies, having the same legal force, and kept by each of the parties. An agreement on full liability is concluded only with an employee performing work or filling a position related to storage, processing, sale (vacation), transportation or use in the labor process material assets owned by the employer. The list of positions, works is established on behalf of the Government of the Russian Federation of the Ministry of Health and Social Development of Russia. The parties to the employment contract cannot go beyond its limits. It is forbidden to expand the list in local regulations and collective agreement.

In the event of a change in the list approved by the Russian Ministry of Health and Social Development on December 3, 2002, the agreement on full liability should be revised accordingly.

Along with the labor legislation, collective (team) responsibility for property damage caused to the employer. It is also negotiable. The employer concludes an agreement with a collective (team) of employees, if, in the joint performance of work related to the storage, processing, sale (vacation), transportation, use or other use of the values ​​transferred to them, it is impossible to distinguish between the responsibility of each employee for damage and conclude an agreement with him on full individual liability (part 1 of article 245 of the Labor Code of the Russian Federation). The standard form of such an agreement was approved by the Decree of the Ministry of Labor of Russia of December 3, 2002 No.

An agreement on collective (team) liability is concluded in writing by the employer and all members of the team (team). It is developed by the parties on the basis of a standard contract. The initiative usually comes from the employer and is formalized by his order (instruction), which is attached to the contract.

In the agreement on (team) liability, the following are fixed: 1) the subject of the agreement; 2) the rights and obligations of the collective (team) and the employer; 3) the procedure for keeping records and reporting; 4) procedure for compensation for damage. The contract is signed by the employer, the head of the team (team), all members of the team (team).

The head of the team (foreman) is appointed by order (instruction) of the employer, taking into account the opinion of the members of the team (team). During the absence of the foreman (leader), the employer assigns his duties to one of the members. The contract is not renegotiated upon departure or admission to the collective (team) of individual employees. In the event that more than 50% of the members of the team from its original composition or the team leader leave, the contract is renegotiated. When accepting individual employees into the team, the date of entry is indicated in the contract and the signature of the employee is put.

The contract establishes the obligation of the employer to create the necessary conditions for the team (team) for the complete safety of the property entrusted to them to perform the assigned labor function. The employer is obliged to take timely measures to identify and eliminate the reasons that impede the safety of property transferred by the employer to the team, identify specific persons guilty of causing damage, and hold them accountable.

The collective under the contract is responsible for the direct actual damage caused to them, as well as for the damage incurred by the employer as a result of compensation for damage to third parties. Material damage is reimbursed by the team only if it occurred through the fault of its members.

The amount of damage caused to the property of the employer is determined by the actual losses, which are calculated at market prices in force in the area on the day the damage was caused. However, it cannot be lower than the value of the lost property according to accounting data. This takes into account the degree of depreciation of this property.

In accordance with Part 2 of Art. 246 of the Labor Code of the Russian Federation, the law may establish a special procedure for determining the amount of damage caused to the employer by theft, deliberate damage, shortage or loss certain types property and other valuables (precious metals, gems, drugs). This rule also applies to cases where the actual damage exceeds its nominal amount. Thus, the Federal Law of January 8, 1998 No. З-ФЗ “On Narcotic Drugs and Psychotropic Substances” provides for material liability of employees in the amount of 100 times the direct actual damage caused to the employer.

The Labor Code of the Russian Federation stipulates the circumstances excluding liability parties to the employment contract: force majeure, normal economic risk, emergency, necessary defense, failure by the employer to ensure proper conditions for the storage of property entrusted to the employee.

Liability is a type of legal liability, the essence of which is that the guilty party is obliged to compensate the other party for property damage caused by it as a result of non-performance or improper performance of labor duties.

It implies compensation by the guilty person for full property damage. Both the employer and the employee can be held liable.

In accordance with Article 37 of the Constitution of the Russian Federation, labor is free. Everyone has the right to independently use his abilities for work, both physical and intellectual.

The legislation provides for various legal forms of labor organization, but first of all, it implies the conclusion of an employment contract. Because of this, we should talk about the differences between two types of liability: the material liability of the employee and the employer.

The employee is obliged to compensate the employer for the direct actual damage caused to him. Lost income, i.e. lost profits are not subject to recovery from the employee Labor Code Russian Federation dated December 30, 2001 N 197-FZ (as amended on July 21, 2007).

The legislator secured this provision by ensuring the protection of the employee as the least weak and economically unprotected party to the employment contract. Labor legislation does not disclose the concept of damage. When considering this issue, it is necessary to be guided by the provisions of the Civil Code of the Russian Federation, which determines that the actual damage caused by the employee to the employer is the costs that the person whose right has been violated has made or will have to make to restore the violated right in case of loss or damage to his property Civil Code of the Russian Federation (Part One) dated November 30, 1994 N 51-FZ (as amended on June 26, 2007)

The Labor Code of the Russian Federation defines the concept of "actual damage", by which the legislator understands the actual decrease in the employer's cash property or the 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 for compensation for damage caused by the employee to third parties.

So, the employee is financially responsible:

for direct actual damage directly caused by him to the employer;

for damage incurred by the employer as a result of compensation for damage to other persons.

If it is proved that the damage was caused through the fault of several employees or an employee and other persons who are not in an employment relationship with the organization that suffered the damage, they may be jointly and severally liable. However, it should be borne in mind that such liability can only be assigned to them if it is established by a court decision that the damage was caused by their joint intentional actions.

Article 239 of the Labor Code of the Russian Federation provides for cases that exclude the liability of an employee. Such cases include the occurrence of damage due to force majeure, normal economic risk, emergency or necessary defense. The Law also says that the employee is released from liability arising from causing damage to the property of the employer, if the employer has not fulfilled the obligation to ensure proper conditions for the storage of property entrusted to the employee.

Failure by the employer to fulfill the obligation to ensure proper conditions for the storage of property entrusted to the employee may serve as a basis for refusing to satisfy the requirements of the employer if this caused damage on the application by the courts of the legislation governing the liability of employees for damage caused to the employer: Resolution of the Plenum Supreme Court RF dated 11/16/2006 N 52.

An example can be given when, through the fault of the heads of enterprises, the necessary conditions were not created to ensure the safety of funds during their storage and transportation. In this case, the cashier does not bear responsibility and it is transferred in full to the employer (clause 29 of the Procedure for conducting cash transactions, approved by the Decision of the Board of Directors of the Bank of Russia dated September 22, 1993 No. 40)

An agreement on full liability can be concluded with employees. This is due either to the peculiarities of work, or to the precaution of the employer, since it is not uncommon for employees of an enterprise to harm the property of this enterprise, for example, to disable office equipment. The enterprise, in general, can cover the damage from its own funds, but it has the right to demand that the corresponding costs aimed at compensating for the damage be borne by the guilty employee or group of employees.

Liability based on an agreement on full liability can be of two types:

1) individual liability;

2) collective liability.

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

It is important to develop a control system for organizing the work of employees, especially if they are materially responsible persons. In the future, this system should provide for the procedure for appointing responsible persons for specific property, the legal registration of this responsibility and its reflection in accounting.

The Labor Code of the Russian Federation provides for cases of full liability of employees. So, in accordance with Article 243 of the Labor Code of the Russian Federation, liability in the full amount of the damage caused is assigned to the employee in the following cases:

1) when, in accordance with the provisions of 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) infliction of damage 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;

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 (state, official, commercial or other), in cases provided for by federal laws;

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

The Plenum of the Supreme Court of the Russian Federation in its resolution “On the application by the courts of the legislation governing the material liability of employees for damage caused to the employer” On the application by the courts of the legislation regulating the liability of employees for damage caused to the employer: Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 N 52. He explained that the courts need to keep in mind that, by virtue of part 2 of article 243 of the Labor Code, liability in full can be assigned to the deputy head of the organization or the chief accountant, provided that this is established by the employment contract. If the employment contract does not stipulate that the said persons bear material liability in full in the event of damage, they may only be held liable within the limits of their average monthly earnings. At the same time, it should be taken into account that the full liability of the head of the organization for the damage caused to the organization comes into force by law (Article 277 of the Labor Code). Therefore, the employer has the right to demand from the head of the organization compensation for damage in full, regardless of whether the employment contract with him contains a condition on full liability.

According to the Federal Law "On Communications", telecom operators bear property liability for the loss, damage to a valuable postal item, shortage of postal item attachments in the amount of the declared value.

The Decree of the Plenum V.S. clarified that when considering a case on compensation for direct actual damage caused to the employer in full, the employer is obliged to provide evidence indicating that, in accordance with the Labor Code or other federal laws, the employee can be held liable in full caused damage and at the time of its infliction reached the age of 18, with the exception of cases of intentional infliction of damage, or infliction of damage in a state of alcoholic, narcotic or other toxic intoxication, or if the damage was caused as a result of a crime or administrative offense, when an employee can be involved to full liability until the age of 18 on the application by the courts of legislation governing the liability of employees for damage caused to the employer: Resolution of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 N 52 Clause 8.

An agreement is concluded with employees on full liability. The agreement on the full collective responsibility of employees must indicate the parties to the agreement, which are the employer represented by the authorized organization, as well as the team represented by the foreman and members of the team.

In accordance with this agreement, the brigade assumes full collective financial responsibility for all values ​​transferred to it for recalculation, acceptance, issuance, processing, storage and movement and undertakes to take measures to prevent damage.

The contract should define the rights and obligations of the team.

A written agreement on collective (team) liability for damage is concluded between the employer and all members of the team (team) - article 245 of the Labor Code of the Russian Federation.

In accordance with Article 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 18 and directly serve or use monetary, commodity values ​​or other property.

Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85 “On approval of 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 agreements on full material liability Responsibility "On approval of the lists of positions and works replaced or performed by employees with whom the employer can conclude written agreements on full individual or collective (team) liability, as well as standard forms of agreements on full liability: Decree of the Ministry of Labor of the Russian Federation of December 31, 2002 N 85. New lists of positions and work and standard forms of contracts have been approved, which provide for cases of full responsibility of the employee. They comply with current labor legislation and the realities of the time. These include:

1) a list of positions and works to be replaced or performed by employees with whom the employer can enter into written agreements on full individual liability for the shortage of entrusted property (For example, work: on the receipt and payment of all types of payments; on 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); for maintenance of vending and cash machines;

2) a standard form of an agreement on full individual liability;

3) a list of works, during the performance of which full collective (team) liability for the shortage of property entrusted to employees can be introduced;

4) a standard form of an agreement on full collective (brigade) liability.

Please note that the lists are exhaustive. And standard forms of contracts are not. This means that standard forms of contracts are samples on the basis of which an enterprise can draw up its corporate forms of contracts on full individual and collective liability.

Liability in the sphere of labor is the obligation of one party to the employment contract, guilty of causing damage to the other party, to compensate for it in the amount and in the manner prescribed labor law.

Classification of material liability in the sphere of labor:

By amount of compensation allocate full (in the amount of direct actual damage) and limited (in the amount of direct actual damage, but not more than the average salary of the employee). The employer always bears full financial responsibility, and the employee in cases specified by law bears full financial responsibility, and in the rest - limited;

By the number of perpetrators and the method of distribution of responsibility between them allocate and . According to the method of distribution of responsibility in the group of workers guilty of causing damage, share, joint and several, subsidiary and collective (brigade) liability are distinguished;

By way of compensation for the damage caused allocate compensation on the basis of a written agreement of the parties (voluntary compensation procedure), on the basis of a court decision and on the basis of an order from the employer.

It should always be remembered that mandatory conditions liability are:

• actual (actual) damage;
• damage is caused by one party to the employment contract to the other party;
• there is the fault of the party that caused the damage (with the exception of cases of damage caused by a source of increased danger and the employer's liability for damage caused by his employee in the performance of labor duties);
• there must be a causal link between the guilty wrongful act (action or omission) and the damage caused;
• there are no circumstances exonerating from liability.

Usually, liability is based on an offense, therefore, when holding an employee liable, the employer takes an explanation from him, as in disciplinary liability. In addition, as with any offense, there must be a certain composition in order to be held accountable.

The elements of an offense in material liability can be defined as follows:

• subject: party to the employment contract, including the former, if the damage was caused during the employment relationship;
• subjective side: the guilt of the subject as a category that characterizes the attitude of the subject to the act and the ensuing consequences, is determined in the form of intent or negligence;
• object: a legal relationship violated by an act, these are relations of property and property interests that are violated as a result of causing damage;
• objective side: it external characteristic the act itself, including the consequences, the causal relationship between the action or inaction and the damage caused, as well as the place, time, method of committing the act and other external characteristics.

Speaking about liability, one cannot fail to note the importance of the institution of liability in labor law:

• recovery value: the damage caused is compensated;
• educational value: the need to endure adverse consequences; there is an influence on the employee himself and other members of the labor collective to prevent such acts;
• legal meaning: the procedure, the amount of compensation, the procedure - everything is regulated by law, and failure to comply with the established rules may deprive the party of the possibility of compensation.

It should be borne in mind that the conditions for ensuring the property interests of the parties to the employment contract do not appear on their own, they are directly related to the fulfillment by the parties of the employment contract of their duties. Thus, labor legislation provides for the obligation of the employee to take care of the property of the employer (Article 21 of the Labor Code of the Russian Federation). The employer is obliged to create the necessary conditions for work, he is obliged to ensure the safety of machines, mechanisms, must provide employees essential tool, documentation, in established cases, train the employee in the methods and techniques of conducting work, and the employer must ensure the conditions for the safety of the property entrusted to the employee (Articles 22, 212, 239 of the Labor Code of the Russian Federation). Exception from general rule will be enterprises in which, in the performance of duties, there is a certain economic risk of consequences in the form of damage.

The conditions, at which the production economic risk is considered justified, the following: the goal cannot be achieved by two means without risk; the risk-taker has accepted all possible measures to prevent adverse consequences; the risk of loss corresponds to the economic purpose for which it is undertaken; the object of risk should be property benefits, and not the life and health of people; the right to risk is given only to persons professionally trained.

Employees are not liable for damage within the limits of natural loss in the course of work or if the damage was caused within the framework of normal economic risk, subject to the conditions justifying it. The legislation provides for exemption from liability in cases of extreme necessity and necessary defense, if the established limits have been exceeded.

Based on the requirements of Art. 232 of the Labor Code, the obligation to compensate for the damage caused is considered as a mutual obligation of the participants labor agreement, which can be specified by the parties. The party to the employment contract (employee or employer) that caused damage to the other party shall compensate for this damage in accordance with Labor Code and other federal laws. An employment contract or agreements concluded in writing 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 it is provided for by the Labor Code or other federal laws.

The liability of an employee for the harm caused should be distinguished from the corresponding civil liability. According to Art. 1064 of the Civil Code of the Russian Federation (CC RF) damage caused to the property of an individual or legal entity, is fully refundable. At the same time, the concept of harm includes both real damage and lost profits. Real damage is the cost that a person has made (or will make) to restore damaged or acquire new property of equal value. Lost profits are understood to mean the income that a person could receive if normal conditions civil circulation if his rights had not been violated. The material liability of an employee under labor legislation is established only for real damage, lost profits are not subject to recovery.

Direct actual damage is understood as a decrease in the employer's cash property or deterioration of the said property, as well as the need to incur unnecessary expenses for the acquisition or restoration of property. At the same time, the damage recovered from the employee also includes damage caused to the property of third parties, if the employer is responsible for its safety (i.e., property in safekeeping). Separately, the Labor Code of the Russian Federation considers the obligation of the employee to compensate for material damage caused to the employer as a result of compensation for harm to other persons. Such relationships, as a rule, arise from employers - owners of sources of increased danger. In this case, the damage caused to a third party is first reimbursed by the employer, and then the employee is presented with a recourse claim for the restoration of expenses incurred by the employer. And if the employer is liable to third parties in accordance with civil law, then the employee is liable to the employer - in accordance with labor legislation. And this is not an infringement of the rights of the employer, since the employer is responsible for organizing the work of the employee, and he is obliged to control the labor process.

An employee may be released from liability. This occurs in the event of damage due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer’s failure to fulfill the obligation to ensure proper storage conditions for property entrusted to the employee (Article 239 of the Labor Code of the Russian Federation). It should be borne in mind that the obligation to prove the absence of circumstances excluding the material liability of the employee lies with the employer. This was pointed out by the Plenum of the Supreme Court of the Russian Federation in paragraph 4 of the Decree of November 16, 2006 N 52 “On the application by the courts of the legislation governing the liability of employees for damage caused to the employer” (hereinafter - the Resolution of the Plenum of the Supreme Court of the Russian Federation N 52).

In addition, the employer has the right, taking into account specific circumstances, to fully or partially refuse to recover damages from the guilty employee. But this right may be limited by the owner of the property of the organization in cases provided for by federal laws, other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation, regulatory legal acts of bodies local government, constituent documents of the organization (Article 240 of the Labor Code of the Russian Federation).

Types of liability

Caused by the employer: full and limited liability.

Upon the occurrence of full liability, the employee is obliged to compensate the direct actual damage caused to the employer in full (part 1 of article 242 of the Labor Code of the Russian Federation). Such liability may be assigned to an employee only in cases expressly determined by the Labor Code of the Russian Federation or other federal laws. For example, Art. 243 of the Labor Code of the Russian Federation establishes that liability in the full amount of the damage caused is assigned to the employee in the following cases:

- if, in accordance with the Labor Code of the Russian Federation or other federal laws, the employee is held liable in such an amount 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 under a one-time document;

- intentionally causing damage;

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

- causing damage as a result of the criminal actions of the employee;

- causing damage as a result of an administrative offense;

- 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 addition, the head of the organization bears full liability for direct actual damage. Moreover, the owners of the organization can demand compensation for damages by the head in full, regardless of whether his employment contract contains a condition on full liability or not (clause 9 of the Decree of the Plenum of the Armed Forces of the Russian Federation N 52). And in cases provided for by federal laws, the head of the organization also compensates for the losses caused by his guilty actions (Article 277 of the Labor Code of the Russian Federation). In particular, compensation for losses by the manager is provided for by Federal Laws of December 26, 1995 N 208-FZ “On joint-stock companies”, dated 08.02.1998 N 14-FZ “On Limited Liability Companies” and dated 14.11.2002 N 161-FZ “On State and Municipal Unitary Enterprises”.

Full liability may be assigned to the deputy head of the organization and the chief accountant, if it is established by labor contracts concluded with these persons (Article 243 of the Labor Code of the Russian Federation). If the employment contracts do not provide for such liability, then these persons, in the absence of other grounds that give the right to bring them to full liability, are liable only within the limits of their average monthly earnings (clause 10 of Resolution of the Plenum of the Armed Forces of the Russian Federation N 52).

An employer can bring a minor employee to full liability only in cases of causing harm intentionally, in a state of alcoholic, narcotic or other toxic intoxication, as a result of a crime or administrative offense. Reason - part 3 of Art. 242 of the Labor Code of the Russian Federation.

With employees who directly serve or use monetary and commodity values ​​or other property (who have reached the age of 18), the employer may conclude agreements on full liability for the shortage of property entrusted to them. This is stated in Art. 244 of the Labor Code of the Russian Federation.

Currently, written agreements on full individual or collective (team) liability can only be concluded with those employees and for the performance of those types of work that are named in the relevant Lists of positions and work approved by Decree of the Ministry of Labor of Russia dated December 31, 2002 N 85. If such the contract is not concluded, the employee is not liable for the damage caused in full. And, of course, the employee with whom the named contract is concluded compensates for the damage in full only if there is a shortage of property entrusted to him under the contract. In other cases, he is liable for damage in the same way as other employees.

Collective (team) liability can be introduced by the employer when, when employees jointly perform certain types of work related to the values ​​transferred to them, it is impossible to distinguish between the responsibility of each person for causing damage (part 1 of article 245 of the Labor Code of the Russian Federation). To be released from such liability, a team member must prove the absence of his guilt (part 3 of article 245 of the Labor Code of the Russian Federation). In the case of recovery of damages in court, the degree of guilt of each employee of the team is determined by the court.

Limited liability consists in the obligation of the employee to compensate for the direct actual damage caused to the employer, but not more than that established by Art. 241 of the Labor Code of the Russian Federation of the maximum limit, namely the average monthly earnings of an employee.

Compensation procedure

The damage caused is compensated regardless of the fact of bringing the employee to disciplinary, administrative and criminal liability. If the amount of material damage caused does not exceed the average monthly earnings of the guilty employee, then the amount of damage is recovered by order of the employer.

The order must be made no later than one month from the date of the final determination by the employer of the amount of damage caused (part 1 of article 248 of the Labor Code of the Russian Federation). In practice, the employer collects such amounts by deducting from wages employee, taking into account current restriction overall size deductions under Art. 138 of the Labor Code of the Russian Federation (as a rule, no more than 20% of the employee's monthly salary), calculated from the amount remaining after deducting the amount of the calculated personal income tax. This is stated in paragraph 1 of Art. 99 of the Federal Law of 02.10.2007 N 229-FZ "On Enforcement Proceedings".

In addition, it should be remembered that deductions are not made from payments named in Art. 101 of the said Law.

Example 2. In April 2011, through the fault of Secretary T.A. Korneeva had a broken multifunctional device (scanner, copier and printer in one machine). Strela LLC (employer) paid for repair services in the amount of 3,000 rubles. The average monthly salary of this employee on the day of the damage exceeds the amount of damage, so the head of Strela LLC decided to withhold the corresponding amount from the salary of T.A. Korneeva (her salary is 25,000 rubles). So, the amount of damage caused is subject to deduction from the employee in full - 3000 rubles.

The amount of salary from which the amounts indemnification will be withheld amounted to 21,802 rubles. (25,000 rubles - 25,000 rubles x 13%). And the maximum monthly deduction is 4360 rubles. (21,802 rubles x 20%).

Thus it is the amount of damage in the amount of 3000 RUB. will be collected in full when calculating T.A. Korneeva for April.

The employee has the right to voluntarily compensate for the damage, including by agreement of the parties with an installment payment. This possibility is provided for in Art. 248 of the Labor Code of the Russian Federation and can be provided to an employee with both full and limited liability. In this case, the employee undertakes to compensate for the damage in writing, indicating specific payment terms. Note that it is possible to agree with the employee on compensation for damage only within the limits established by law.

There is another way to compensate for damage with the consent of the employer - this is the transfer by the employee of equivalent property or the correction of damaged property (part 5 of article 248 of the Labor Code of the Russian Federation). A mixed variant of compensation for damage is not prohibited by agreement at the same time in monetary and natural forms. That is, an employee can transfer cheaper property, and compensate for the difference in money.

In a judicial proceeding, the amount of compensation for the damage caused is recovered if:

- the employer missed the monthly deadline for issuing an order to recover damages that do not exceed the average monthly earnings of the guilty employee (part 2 of article 248 of the Labor Code of the Russian Federation);

- the employee does not agree to voluntarily compensate for the damage caused in excess of his average monthly earnings (part 2 of article 248 of the Labor Code of the Russian Federation);

- the resigned employee gave an obligation to voluntarily compensate for damage, but refused to fulfill it (part 4 of article 248 of the Labor Code of the Russian Federation);

- retired without good reasons before the expiration of the period stipulated by the employment contract or agreement on training at the expense of the employer, the employee did not reimburse the costs of his training (Article 249 of the Labor Code of the Russian Federation);

- the student at the end of the training refused, without starting work, to voluntarily reimburse the expenses incurred by the employer in connection with the apprenticeship (part 2 of article 207 of the Labor Code of the Russian Federation).

In practice, there may be other situations when you have to apply for the recovery of damages to the court. For example, an employee quit before the start of the reimbursement or full withholding of the required amounts. Recall that for disputes about compensation by an employee for damage, a reduced limitation period is applied - one year from the date of its discovery (part 2 of article 392 of the Labor Code of the Russian Federation).

Liability of employees- this is the legal obligation of employees to compensate in full or in part the direct actual damage caused by their illegal and guilty actions to the employer for whom they work. Liability is applied regardless of bringing the employee to disciplinary, administrative or criminal liability. Liability should be distinguished from such measures of material influence as the deprivation or reduction of bonuses, remuneration based on the results of work for the year, etc.

Terms of liability

Liability of employees occurs in the presence of the following conditions: 1) the presence of direct actual damage, that is, the loss, deterioration or decrease in the value of property, the need to incur costs for the restoration, acquisition of property or other valuables, or excessive payments. At the same time, lost income, that is, those amounts by which the property of the tenant would have increased if the debtor had not committed an offense, are not taken into account; 2) wrongfulness of the behavior of the employee who caused the damage. It is expressed in the fact that the employee does not perform or improperly performs the labor duties assigned to him by regulations, internal labor regulations, instructions and other mandatory rules, orders and orders of the employer; 3) the existence of a causal relationship between the behavior of the employee and the damage caused; 4) the presence of guilt in the behavior of the employee in the form of intent and negligence.

It is unacceptable to lay liability on an employee for harm that belongs to the category of normal production risk (experimental production, the introduction of new technologies, etc.)

Types of liability (full and limited)

Article 402 of the Labor Code establishes that employees, as a rule, bear full liability for damage caused through their fault to the employer. legislation, collective agreements, agreements may establish limited material liability of employees for damage caused to the employer through their fault, with the exception of cases provided for in Article 404 of the Labor Code.

Limited liability means that the employee is obliged to compensate for the damage in the amount of his actual damage, but the amount of compensation cannot exceed the average monthly earnings. Limited liability is currently provided for in accordance with Article 403 of the Labor Code in only two cases:

employees - in the amount of damage caused through their fault, but not more than their average monthly earnings for damage or destruction through negligence of materials, semi-finished products, products (products), including during their manufacture, as well as for damage or destruction through negligence of tools, measuring instruments, special clothing and other items issued by the employer to the employee for use;

heads of organizations, their deputies, heads structural divisions and their deputies - in the amount of the damage caused through their fault, but not more than three times the average monthly salary, if the damage was caused by incorrect accounting and storage of material or monetary values, non-acceptance necessary measures to prevent downtime or the release of substandard products. Such responsibility is borne by the heads of their deputies of any structural units provided for by the charter (regulations) of the enterprise.

The average monthly salary is determined based on the calculation of the last two calendar months of work of the employee who caused the damage. If an employee has worked for an employer for less than two months, then his average earnings are determined based on the time actually worked.

Full liability.

Full liability- this is liability in the amount of the damage caused without limiting it to any limit. Full material liability occurs if no exceptions are made to the general rule on full material liability. In addition, full liability in cases provided for in Article 404 of the Labor Code.

Most often, full liability occurs when a written agreement on full liability is concluded between the employee and the employer.

Written agreements on full liability can be concluded by the employer with employees who have reached the age of 18, occupy positions or perform work directly related to the storage, processing, sale (vacation), transportation or use in the production process of the values ​​transferred to them. An indicative list of such positions and works, as well as an indicative agreement on full individual liability are approved by the Government of the Republic of Belarus.

Full individual material liability can be established under the following conditions: 1) commodity-money values ​​are transferred to the employee under the report, that is, he is personally responsible for their safety and sale (small retail workers, storekeepers, cashiers. Bartenders, freight forwarders, etc. .); 2) conditions for the storage, sale and processing of material assets (isolated premises, etc.) have been created for the employee. 3) the employee independently reports to the accounting department for the values ​​entrusted to him.

A special form of full liability is collective (team) liability, which is introduced when employees jointly perform work related to the storage, processing, sale (vacation), transportation of valuables transferred to them, when it is impossible to distinguish between the liability of each employee and conclude an agreement with him on individual liability

Collective liability is introduced if the following conditions are present simultaneously: 1) work is performed jointly; 2) it is impossible to distinguish between the liability of each employee and conclude an agreement with him on full individual liability; 3) the employer has created conditions for employees to work normally and ensure the safety of the valuables transferred to them,

4) the employee (team member) has reached the age of 18 years.

A written contract on full liability provides a list of the main duties of the employee and the employer. The employee undertakes to take care of the material assets transferred to him for storage or for other purposes and take measures to prevent damage, promptly inform the employer of all circumstances that threaten the safety of the values ​​entrusted to him, make proposals to the employer for the reconstruction and repair of storage facilities and sites in order to improve their adaptability to the storage of material values, to keep records. Compile and submit, in accordance with the established procedure, commodity-money and other reports on the movement and balances of valuables. In turn, the employer undertakes to: create the conditions necessary for the employee to work normally and ensure the safety of the property entrusted to him, to acquaint the employee with the current legislation on the liability of employees, as well as the current instructions, standards and rules for storage, acceptance, processing, sale (vacation) , transportation or use in the production process of the values ​​transferred to him, to conduct an inventory and write-off of material assets in the prescribed manner.

The team assumes full financial responsibility for all inventory items (goods, containers, materials) transferred to it under the report. A written contract is drawn up in two copies, one of which is with the employer, and the second with the employee. The contract covers the entire time of work with material assets entrusted to employees.

The basis for bringing employees or members of the team to liability is material damage caused through their fault by not ensuring the safety of property and other valuables (shortage, damage) transferred to them for storage, sale or for other purposes and confirmed by the inventory sheet.

Compensable damage caused by the brigade is distributed among its members in proportion to the time actually worked for the period from the last inventory to the day the damage was discovered.