17.04.2016

The right of ownership in the Russian Federation is recognized and protected by the state. Accordingly, private, state, municipal and other forms of ownership are recognized and protected in the same way. Liability of employees for damage caused to the employer in the performance of labor duties is one of the means of protecting the employer's property rights.

Liability of employees according to labor law

Careful attitude to the property of the employer is one of the main duties of the employee under an employment contract (Article 21 of the Labor Code of the Russian Federation). In cases where he violated the requirement of the law to take care of the property of the employer, as a result of which the employer suffered property damage, the employee is obliged to compensate for this damage. In other words, employees are subject to material liability according to the norms of labor law, which is defined as a measure of state coercion, which consists in imposing on the employee the obligation to compensate, in the manner and amount established by law, the damage caused through his fault to the organization with which he is in labor relations.

The legal basis for the institution of material liability of workers is formed mainly by constitutional norms, for example, Art. 8 of the Constitution of the Russian Federation, which establishes the forms of ownership and their inviolability, as well as the Labor Code of the Russian Federation (ch. 37, 39).

The material liability of employees according to the norms of labor law must be distinguished from other measures of material influence, namely:

• Deprivation or reduction of the amount of the bonus provided for by the system of remuneration and remuneration based on the results of the annual work of the organization (where such remuneration is provided for by local regulations containing labor law norms).
• Reducing the coefficient of labor participation in the collective form of organization and stimulation of labor.
• Deductions from wages made on the basis of the law (Article 137 of the Labor Code of the Russian Federation).

Regulatory legal acts regulating compensation for material damage caused to the employer are designed to:

• First, to ensure the safety of the property of the employer and employee, to prevent the facts of waste and mismanagement.
• Secondly, to promote the strengthening of labor discipline.
• Third, to ensure the protection of workers' wages from excessive and illegal deductions.

Liability according to the norms of labor law encourages employees to work in such a way that there is no damage, loss, destruction, theft of material assets. It is called upon to play a serious role in the fight against violations of state discipline, which may be distortions of operational and accounting reports and postscripts. Such phenomena not only bring significant harm to the normal activities of the organization, but also cause material damage, which, as practice shows, is expressed to a greater extent in the theft of unaccounted for or unused material values.

The subjects of liability in labor law, as mentioned, can be both an employee and an employer (organization), regardless of the form of ownership on the basis of which this organization was created. As economic and judicial practice shows, nevertheless, the subject of legal relations for material liability in the sphere of labor is primarily an employee who caused material (property) damage to the employer by his unlawful guilty actions (inaction).

Conditions for holding an employee liable

An analysis of the norms of the Labor Code of the Russian Federation, in particular Articles 233, 238 of the Labor Code of the Russian Federation, leads to the conclusion that the employee’s liability arises for damage caused to the employer only if a combination of the following conditions is established:

1. Existence of direct actual damage.
2. Wrongful behavior of an employee.
3. Causal relationship between the employee's unlawful behavior and the existence of damage.
4. The fault of the employee in causing damage.

These conditions are mandatory and in the absence of at least one of them, it is impossible to hold the employee liable under labor law.

1. Existence of direct actual damage must be proven. Evidence of the occurrence of damage is the statement of the party to the employment contract, confirmed by documents and other evidence, including testimonies.

In paragraph 2 of Art. 55 of the Civil Procedure Code of the Russian Federation, it is established that evidence obtained in violation of the law has no legal force and cannot be used as the basis for a court decision. Evidence is characterized by the fact that it represents actual data, i.e. information that correctly and sufficiently reflects the circumstances that are important for determining the existence of material damage caused to one or another party to the employment contract.

Unlike civil law, only real damage (also called direct or actual damage) that the employer or employee actually caused is subject to proof. In civil law, in addition to real damage, lost income is also recovered that a person (natural or legal) would have received under normal conditions of civil circulation if his right had not been violated (lost profit or lost income). The norms of labor legislation do not provide for the recovery of lost income (profit that the employer could have received, but did not receive as a result of illegal actions (inaction) of his employees) is not provided.

2. Wrongful behavior of an employee is a legally significant circumstance when bringing him to liability. Behavior (action or inaction) is recognized as illegal if it violates certain obligations assigned to the party to the employment contract by the relevant labor standards. The main duties of the employee are provided for in Art. 21 of the Labor Code of the Russian Federation. In addition, the duties of the employee arise from the content of the employment contract, as well as the internal labor regulations.

Illegal is the behavior of an employee in which he does not perform his job duties or performs them improperly, but only those duties that are directly or indirectly related to the careful attitude to material values ​​(property of the employer and other employees) in accordance with Art. 21 of the Labor Code of the Russian Federation. These obligations are usually specified in special acts that determine the procedure for saving, storing and using property and other material values. These acts, in addition to laws, decrees of the President of the Russian Federation, resolutions, orders of the Government of the Russian Federation, include internal labor regulations, job descriptions, various rules, instructions and orders of the employer.

Inaction is recognized as unlawful if the above acts impose on the parties to the employment contract (or one of them) the obligation to perform certain actions that one or another party has not fulfilled. If this applies, in particular, to an employee, he must be familiarized with such an act.

3. causationbetween the unlawful behavior of the employee and the existence of damage is one of the mandatory conditions for bringing him to liability. Proving this circumstance involves the presentation of evidence confirming the connection between non-fulfillment or improper fulfillment of the duties assigned to the employee in compliance with the law with the occurrence of damage. Of course, there is no liability for accidental consequences.

4. The fault of the employee in causing damage should be taken into account when deciding whether to bring him to liability. In labor law, guilt is understood as the mental (internal) attitude of a person to his unlawful behavior and its consequences (results).

Distinguish guilt in the form of intent (direct or indirect) and in the form of negligence (arrogance, negligence, imprudence). Direct intent takes place when the employee is aware of the illegal nature of his action (behavior), foresees the possibility of harmful consequences (damage) and wishes them to occur. With indirect intent, the employee, aware of the unlawfulness of his behavior and understanding the possibility of material damage, does not want this, but allows the onset of harmful consequences or is indifferent to their occurrence.

Negligence in the form of arrogance consists in the fact that the employee, realizing the illegal nature of his action (inaction) and the possibility of material damage as a result of this, frivolously hopes to prevent the latter.

Negligence, imprudence is evident where the employee was not aware of the unlawful nature of his behavior and did not foresee the possibility of causing damage, however, due to the circumstances of the case, he should have and could foresee.

Any form of guilt can serve as a basis for bringing an employee to liability in accordance with labor law (of course, if there are other conditions of liability provided for by law).

When deciding whether to bring an employee to liability, the division of intent into direct or indirect intent has no practical significance. At the same time, the difference between intent and negligence plays a certain role, since in some cases the limits of liability (limited or full) depend on the form of guilt. If the damage was caused by the intentional actions of the employee, including when the employee did not want, but deliberately allowed the possibility of damage, then material liability arises in the full amount of the damage caused (clause 3, part 1, article 243 of the Labor Code of the Russian Federation).

Circumstances excluding material liability of the employee

In some cases, the law provides for a rule according to which the material liability of the employee to the employer is excluded. In particular, in accordance with Art. 239 of the Labor Code of the Russian Federation, such cases include: the occurrence of damage due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer’s failure to fulfill his obligations to ensure proper conditions for storing property entrusted to the employee.

Force majeure (force majeure) is an event or circumstance that is extraordinary and unavoidable under the given conditions (natural disaster, for example, flood, earthquake, some social phenomena, for example, military operations, man-made accidents).

It is not allowed to impose material liability on employees for such damage that arose as a result of normal economic risk.

The resolution of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 No. 52 (clause 5) states that the actions of an employee that correspond to modern knowledge and experience can be attributed to normal economic risk, when the goal set could not be achieved otherwise, the employee properly fulfilled the official duties assigned to him, showed a certain degree of care and discretion, took measures to prevent damage, and the object of risk was material values, and not the life and health of people.

As a circumstance relieving the employee from liability due to the absence of unlawful behavior, the fulfillment of the requirement (order, order) of the employer (his representative) to commit actions that led to material damage may act.

Article 240 of the Labor Code of the Russian Federation gives the employer the right to refuse to recover damages caused by the employee, in whole or in part. The employer can use this right taking into account the circumstances in which the damage was caused, the financial situation of the employee and other circumstances. Such a refusal is permissible regardless of whether the employee bears limited liability or liability in full, and also regardless of the form of ownership of the organization.

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Liability of the parties to the employment contract is expressed in the imposition by law on each party of the obligation to compensate for the damage caused to the other party by non-performance or improper performance of obligations arising from the employment contract.

Otherwise, material liability- compensation for damage caused in the performance of labor duties by one of the parties to the employment contract to the other party.

Liability is one of the ways to protect the property of the employer and employee. According to labor law, the liability of both the employee and the employer is one of the types as a sanction for a labor offense. It differs from liability under civil law by the subjects of liability, its conditions, as well as the amount of compensation by the employee for damage, which in most cases is possible only within the limits of his average monthly earnings.

Important! It should be borne in mind that:

• Each case is unique and individual.
• Careful study of the issue does not always guarantee a positive outcome of the case. It depends on many factors.

To get the most detailed advice on your issue, you just need to choose any of the proposed options:

Employee for damage caused to production:

• partially or fully compensates for the damage caused by the employee to production;
• has an educational and disciplinary effect on the employee to comply with one of the main labor duties provided for in Art. 21 of the Labor Code of the Russian Federation, - a more careful attitude to the property of production;
• the statutory rules for compensation by the worker for damage at the same time protect his wages from excessive and illegal deductions.

The meaning of liability employer for harm caused to an employee:

• contributes to a more thorough observance by the employer, its administration of labor legislation on labor protection and labor contracts, and thus the observance of the employee's right to work and labor protection;
• allows you to compensate not only material, but also moral damage caused to the employee.

In accordance with Art. 21 of the Labor Code of the Russian Federation, among the main duties of an employee, the obligation to take care of the property of the employer and other employees is established. According to Art. 22 of the Labor Code of the Russian Federation, the main obligation of the employer is the obligation to compensate for the harm caused to employees in connection with the performance of their labor duties, as well as to compensate for non-pecuniary damage.

In addition, relations for compensation for harm caused to the life and health of employees in connection with the performance of their labor duties are regulated by civil law (Articles 1084-1094 of the Civil Code of the Russian Federation).

An employment contract or written agreements attached to it may specify the liability of the parties to this contract. A special written agreement is, first of all, an agreement on the full liability of the employee for damage caused to the employer. Can be specified:

• objects or values ​​to which the employee is directly related in the labor process;
• the obligation of the employer to create conditions for the employee to preserve items, valuables;
• ensuring the safety of the employee's property transferred to the employer, etc.

The contractual liability of the employer to the employee cannot be lower, and the employee to the employer - higher than provided by law (Article 232 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 the contract from material liability provided for by labor legislation. In this case, the issue of compensation is decided by agreement of the parties or by the court (Article 232 of the Labor Code of the Russian Federation).

The requirements of labor legislation on the material liability of the parties to an employment contract apply to them regardless of the type of ownership, organizational and legal form of the employer, its departmental subordination, as well as the fact that the employer is a legal entity or an individual, unless otherwise provided for on these grounds.

In accordance with Art. 233 of the Labor Code of the Russian Federation, the material liability of a party to an employment contract occurs for damage caused by it to the other party to the contract as a result of its guilty unlawful behavior (action or inaction), unless otherwise provided by law.

Each of the parties to the employment contract is obliged to prove the amount of damage caused to it, as well as the guilt of the damage cause and the causal relationship between the behavior of the damage cause and the consequences.

In certain cases, the tortfeasor must prove his innocence (for example, an employee who has entered into an agreement on full liability).

Employer liability

If the employer violates the established deadline, respectively, for the payment of wages, vacation pay, dismissal payments and (or) 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 1/150 of the key rate in force at that time The Central Bank of the Russian Federation from the amounts not paid on time for each day of delay starting from the next day after the established payment deadline until the day of actual settlement inclusive. In case of incomplete payment of wages and (or) other payments due to the employee on time, the amount of interest (monetary compensation) is calculated from the amounts actually not paid on time. The amount of compensation paid to the employee can be upgraded collective agreement, local regulation or labor contract. The obligation to pay the specified monetary compensation arises regardless of guilt employer.

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. Moral injury- these are physical and moral suffering (Article 151 of the Civil Code of the Russian Federation) of the victim of an accident (or his family in the event of the death of an employee). If the employer has not satisfied (or the employee believes that he has not fully satisfied) the employee's claim for compensation for moral damage, the employee can go to court, which determines the amount of compensation for moral damage.

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.

The employer compensates the employee for damages, caused by a source of increased danger, in full, unless he proves that the harm was caused as a result of force majeure or an employee, i.e. when even without his fault responsibility is possible. Without fault, the employer - the owner of the aircraft is liable to the crew members, unless he proves the intent of the victim. In other cases, the release of the employer from compensation for harm is possible if he proves that the harm was caused through no fault of his. The fault of the employer will always be if the injury occurred from the failure to provide them with healthy and safe working conditions. Evidence of his guilt can be both documents and testimonies of witnesses (an accident report, which indicates his fault, the conclusion of a technical inspector or other officials, a medical report, a court decision or sentence, etc.).

Occupational injury as damage to the health of an employee associated with the performance of his labor duties can occur both on the territory of production and outside it (if staying there during working hours does not contradict the rules of internal labor regulations). For example, in a factory canteen, a worker was poisoned at lunchtime. As a rule, the cause of a work injury is a violation of safety regulations (for example, a faulty power saw injured an employee’s arm or an employee’s leg was broken due to an uneven floor surface in the workshop).

Occupational Illness does not arise suddenly (rarely in emergency cases, possibly from a one-time source of danger), but gradually, as a result of unfavorable external working conditions in this profession (excessive smoke, gas pollution, radiation, etc.) and as a result of failure to ensure proper sanitary and hygienic working conditions. Therefore, an occupational disease is always considered to be associated with the fault of the employer (there are lists of occupational diseases that medical authorities are guided by when establishing the cause of the disease).

Possible mixed liability with mixed fault when the employee who grossly violated labor protection instructions is also to blame. With mixed fault, most of the blame (up to 70%) is assigned to the employer, who compensates for the damage through the Compulsory Social Insurance Fund against industrial accidents, i.e. the insurer to whom the victim addresses his application. But mixed liability does not apply to additional types of compensation for harm and a lump sum, as well as in the event of the death of the breadwinner.

The following types of compensation for harm to an employee in connection with damage to his health are possible:

• compensation for lost earnings (or part of it), depending on the degree of loss of professional ability to work, i.e. ability to permanent work in their profession;
• reimbursement of additional expenses in connection with a labor injury;
• a one-time allowance in connection with a work-related injury;
• compensation for moral damage.

These types of compensation for harm to an employee, except for moral damages, are made not by employers from their own funds, but by the Social Insurance Fund, to which employers pay insurance premiums for employees. And therefore, compensation for harm itself has moved to the branch of social security law, since the employee (injured) applies for compensation to this Fund and only by order of this Fund can the employer pay these amounts on account of contributions due from it. But in accordance with the specified Law, the employer compensates for moral damage from his own funds.

^ 1. The material responsibility of the employee is expressed in his obligation to compensate for the damage caused to the employer by unlawful, guilty actions or inaction in the course of labor activity.

In terms of legal nature, the material liability of an employee has many features in common with disciplinary liability.

Both come for non-fulfillment or improper fulfillment of duties that make up the content of labor discipline, that is, for a disciplinary offense.

To bring both material and disciplinary liability, it is necessary to have such general conditions of legal liability as the presence of an employee’s fault in committing an action or inaction and their illegality.

At the same time, the material and disciplinary liability of employees are independent types of legal liability, regulated by labor law, and therefore there are fundamental differences between them.

The material liability of an employee, in contrast to disciplinary liability, is not directly aimed at ensuring labor discipline. Its main goal is to compensate for the damage caused. Although it should be noted that indirectly material responsibility contributes to the achievement of this goal.

First, fixing in the law the obligation to compensate for the damage caused to the employer in itself encourages employees to comply with those rules of conduct that are aimed at ensuring the safety of the employer's property.

Secondly, bringing a specific offender to liability has a warning effect on other employees who are aware that in such cases they will suffer equally adverse consequences.

Unlike disciplinary liability, an employee can be held not for any guilty, unlawful action or inaction, but only for that as a result of which property damage was caused to the employer. Bringing an employee to liability does not exclude the right of the employer to subject him to disciplinary liability for the same offense that caused property damage.

If the application of disciplinary liability has only a moral impact on the employee, then as a result of bringing to material responsibility, adverse both moral and property consequences occur.

As already noted, the right of a party to an employment contract to compensation for damage caused to it by the other party remains even after the employment relationship has been terminated. The application of disciplinary liability (disciplinary sanction) to an employee is possible only during the period of existence of an employment relationship.

^ 2. The liability of an employee under labor law has some similarities with the property liability of citizens under civil law.

Both of these responsibilities are based on the obligation to compensate for the damage caused. However, there are very serious differences between the liability of an employee under labor law and property liability under civil law, due to the peculiarities (specifics) of the subject and method of these industries, as well as their official role.

Unlike civil law, in accordance with which the parties to property relations, as a general rule, are equal and any of them has the right to demand full compensation for the losses caused to it (i.e., both real damage and lost profits), the subjects of an employment relationship are in unequal position in relation to each other.

In accordance with labor legislation, the employee, as a general rule, bears limited liability and, as already noted, compensates only for direct actual (real) damage, while the employer is obliged to compensate the employee for the losses incurred in full.

This is due to the fact that the employee is economically the weaker side of the labor relationship. He is more dependent on the employer than the employer on him. The employee is obliged to submit to the master's authority of the employer, to follow his instructions in the course of labor activity, to strive to ensure the safety of the property entrusted to him in connection with the performance of his labor duties. In turn, the employer is obliged not only to properly organize the labor process, but also to take measures to prevent property damage.

The norms of labor law regulating the grounds, limits and procedure for compensation for material damage are imperative. They are established by law and cannot be changed by agreement of the parties.

Thus, protecting the interests of the economically weaker party - the employee, the Labor Code determined that by agreement of the parties, the liability of the employer cannot be determined lower, and the liability of the employee to the employer is higher than provided for by the Code (part 2 of article 232, part 1 of article 235, item 241) or other federal laws. Only within the specified limits, the parties have the right to establish a specific amount of liability. According to the norms of civil law, the parties have the right to determine the grounds, limits and conditions of property liability.

^ 3. General provisions on the liability of an employee for damage caused to the employer are provided for in Art. 238

TK. In accordance with it, the employee is obliged to compensate the employer for the direct actual (real) 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 to the employer by third parties. Direct actual damage may include, for example, a shortage of monetary or property values, damage to materials and equipment, expenses for repairing damaged property, payments for forced absenteeism or downtime, fines paid, etc.

The obligation to compensate for direct actual damage arises for the employee both in cases where such damage is caused by him directly to the employer (for example, due to a shortage of valuables entrusted to him), and in cases where the damage is caused to third parties through the fault of the employee, and the employer, in accordance with legally obliged to compensate for this damage. ?

The damage caused by the employee to third parties should be understood as all amounts paid by the employer to third parties in compensation for damage. At the same time, it must be borne in mind that the employee can be held liable only within the limits of these amounts and provided that there is a causal relationship between the guilty actions (inaction) of the employee and causing damage to third parties.

By virtue of h. 2 Article. 392 of the Labor Code, the employer has the right to bring a claim against the employee for the recovery of amounts paid in compensation for damage to third parties within one year from the date of payment by the employer of these amounts (clause 15 of the Decree of the Plenum of the Armed Forces of the Russian Federation of November 16, 2006 No. 52).

Lost income (lost profit), as already noted, cannot be recovered from the employee. ?

Defining the grounds and conditions for the onset of the employee's material liability, the Labor Code, at the same time, determines the cases in which the employee is exempted from such liability.

In accordance with Art. 239 of the Labor Code, an employee cannot be held liable if the damage arose as a result of force majeure, normal economic risk, extreme necessity or necessary defense, or the employer’s failure to fulfill the obligation to ensure proper conditions for storing property entrusted to the employee.

Labor legislation does not disclose the concepts provided for in the named article. In this regard, definitions of the relevant concepts given in other laws, or established in practice, can be used here.

Force majeure refers to extraordinary and unavoidable circumstances under such conditions (for example, natural phenomena, such as an earthquake, flood, as well as circumstances of public life: military operations, epidemics, etc.). Extraordinary circumstances also include prohibitive measures of state bodies, such as the announcement of quarantine, prohibition of transportation, etc.

Normal economic risk may include the actions of an employee that correspond to modern knowledge and experience, when the set goal could not be achieved otherwise, the employee duly performed the duties assigned to him, showed a certain degree of care and discretion, took measures to prevent damage, and the object risks were material values, and not the life and health of people (paragraph 5 of the Decree of the Plenum of the Armed Forces of the Russian Federation of November 16, 2006 No. 52).

The concepts of extreme necessity and necessary defense are enshrined in the Criminal Code.

In accordance with Art. 39 of the Criminal Code, damage is considered to be caused in a state of emergency, when the person who caused the damage acted to eliminate the danger that directly threatened the person or rights of this person or other persons, the legally protected interests of society or the state, if this danger could not be eliminated by other means.

The damage is considered to be inflicted in a state of necessary defense if it was caused under circumstances when the defender defended himself or other persons, the legally protected interests of society or the state from a socially dangerous encroachment, if this encroachment was accompanied by violence dangerous to the life of the defender or another person, or with the imminent threat of such violence.

Protection against an attack that is not associated with life-threatening violence, or with an immediate threat of the use of such violence, is lawful, if the limits of necessary defense were not exceeded. Exceeding the limits of necessary defense is recognized as intentional actions that clearly do not correspond to the nature and danger of the encroachment (Article 37 of the Criminal Code).

All persons are equally entitled to necessary defense, regardless of their professional or other special training and official position. This right belongs to a person regardless of the possibility of avoiding a socially dangerous encroachment or seeking help from other persons or authorities.

The employer has the right, but is not obliged to recover from the employee the damage caused to him through his fault. Taking into account the specific circumstances under which the damage was caused, the employer may completely refuse to recover damages from the guilty employee or recover it partially (Article 240 of the Labor Code). Such a refusal is permissible regardless of whether the employee bears limited liability or liability in full, and also regardless of the form of ownership of the organization (clause 6 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of November 16, 2006 No. 52). At the same time, 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 local governments, constituent documents of the organization, the owner of the property of the organization may restrict the specified right of the employer (Article 240 of the Labor Code).

^ 4. The Labor Code provides for two types of material liability of an employee for damage caused to the employer - limited liability and full liability. In this regard, the employee who caused damage to the employer may be assigned either limited or full liability.

4.1. Limited liability is the main type of material liability of an employee for damage caused to the employer. It consists in the obligation of the employee to compensate the direct actual damage caused to the employer, but not more than the maximum limit established by law, determined in relation to the amount of wages received by him.

In accordance with Art. 241 of the Labor Code, such a maximum limit is the average monthly earnings of an employee.

The application of limited material liability within the limits of the average monthly earnings means that if the amount of damage exceeds the average monthly earnings of the employee, he is obliged to compensate only that part of it that is equal to his average monthly earnings. In other words, with limited liability, the employee is obliged to fully compensate for the direct actual damage caused to the employer, only in cases where this damage does not exceed his average monthly earnings.

The rule on limited liability within the limits of the average monthly earnings is applied in all cases, except for those in respect of which the Labor Code or other federal law directly establishes a higher liability, for example, full liability (Article 242 of the Labor Code). At the same time, as explained in the Decree of the Plenum of the Armed Forces of the Russian Federation of November 16, 2006 No. 52, if the employer has filed a claim for compensation by the employee for damages within the limits of his average monthly earnings (Article 241 of the Labor Code), however, during the trial, circumstances will be established with which the law connects the onset of the full liability of the employee, the court is obliged to decide on the claims made by the plaintiff and cannot go beyond them, since by virtue of Part 3 of Art. 196 of the Code of Civil Procedure, such a right is granted to the court only in cases provided for by federal law (clause 7).

4.2. Full material liability consists in the obligation of the employee to compensate the direct actual damage caused to the employer in full.

Liability in the full amount of the damage caused to the employer can be assigned to the employee only in cases expressly determined by the Labor Code or other federal law.

The list of cases of full liability of employees is established by Art. 243 TK. However, it does not apply in full to all employees, but only to those who have reached the age of 18. In accordance with Art. 242 of the Labor Code, employees under the age of 18 are fully liable only for the intentional infliction of damage, for damage caused in a state of alcoholic, narcotic or other toxic intoxication, as well as as a result of committing a crime or administrative offense, i.e. only in cases provided for in paragraphs 3-6 of Art. 243 TK.

Liability in the full amount of damage caused to the employer in accordance with Art. 243 of the Labor Code is assigned to the employee in the following cases.

When liability in full is assigned to the employee by the Labor Code or other federal law (clause 1, part 1, article 243 of the Labor Code).

So in accordance with Part 1 of Art. 277 of the Labor Code, the head of the organization bears full liability for damage caused to the organization. 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. By virtue of h. 2 Article. 243 of the Labor Code, full liability may be assigned to the deputy head of the organization or the chief accountant, provided that this is established by the employment contract. As explained in Decree of the Plenum of the Supreme Court of the Russian Federation No. 52 dated November 16, 2006, if the employment contract does not provide that the specified persons in the event of damage bear material liability in full, then in the absence of other grounds giving the right to bring these persons to such liability, they can only be held liable up to their average monthly earnings.

In accordance with Art. 68 of the Federal Law of 07.07.2003 No. 126-FZ “On Communications”, employees of telecom operators are liable to their employers for the loss or delay in the delivery of all types of postal and telegraph items, damage to mailing attachments that occurred through their fault in the performance of their official duties , in the amount of responsibility that the telecom operator bears to the user of communication services, unless another measure of responsibility is provided for by the relevant federal laws.

Resolution No. 52 of the Plenum of the Supreme Court of the Russian Federation dated 11/16/2006 clarified to the courts that when considering a case on compensation for direct actual damage caused to an employer in full, the employer is obliged to provide evidence indicating that, in accordance with the Labor Code or other federal laws, an employee may be is held liable in full amount of the damage caused and at the time of its infliction has reached the age of 18, except for 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 brought to full liability before reaching the age of 18 (clause 8).

In case of a shortage of valuables entrusted to the employee on the basis of a special written agreement or received by him under a one-time document (clause 2, part 1, article 243 of the Labor Code). A written agreement on full liability can be concluded with an individual employee (an agreement on full individual liability) or with a team (team) of employees (an agreement on full collective (team) liability).

In case of collective (team) liability, the damage caused to the employer is compensated in full not by one employee, but by all members of the team who have concluded an agreement on collective liability.

Agreements on full individual and collective (team) liability are concluded according to the rules established by Art. 244 TK.

In accordance with the specified article, an agreement on full individual or collective (team) liability is an agreement on compensation to the employer for the damage caused in full for the shortage of property entrusted to employees.

Such an agreement can be concluded with an employee only if the following mandatory conditions are met: 1)

if the employee has reached the age of 18, i.e. is of legal age; 2)

if the position held or the work performed by the employee is directly related to the maintenance or use of monetary, commodity values ​​or other property; 3)

if such a position or work performed is provided for in the special lists of works and categories of employees approved in the manner established by the Government of the Russian Federation, with whom these contracts can be concluded.

An agreement on full liability concluded in violation of these conditions cannot serve as a basis for bringing the employee to full liability.

The Government of the Russian Federation, by its Decree of November 14, 2002 No. 823, instructed to develop and approve lists of positions and works replaced or performed by employees with whom the employer can conclude written agreements on full individual or collective (team) responsibility, as well as standard forms of agreements on full liability Ministry of Labor and Social Development of the Russian Federation. In pursuance of this Decree of the Government of the Russian Federation, the Ministry of Labor of Russia, by Decree No. 85 of December 31, 2002, approved two such lists: the List of positions and work replaced or performed by employees with whom the employer can enter into written agreements on full individual liability for the shortage of entrusted property, and the List of works , during the implementation of which full collective (brigade) liability for the shortage of property entrusted to employees can be introduced. The same resolution of the Ministry of Labor approved standard forms of agreements on full individual liability and on full collective (team) liability.

The named Lists of positions and works are exhaustive and are not subject to broad interpretation.

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 includes, in particular, the following positions: cashiers, controllers, cashier-controllers; managers, specialists and other employees carrying out transactions for the purchase, sale and other forms and types of circulation of banknotes, securities, precious metals, coins made of precious metals and other currency values, cash collection functions; salespeople, merchandisers of all specializations; managers of warehouses, pantries, pawnshops, storage rooms, their deputies; freight forwarders and other workers.

The types of work, in particular, include: work on the receipt and payment of all types of payments; maintenance of vending and cash machines; work on the reception and processing (escort) of cargo, baggage, postal items and other material assets;

work on the purchase, sale, exchange, transportation, delivery, forwarding, storage, processing and use in the production process of precious and semi-precious metals, stones and other materials, as well as products made from them; work on the manufacture, processing, transportation, storage, accounting and control, sale of nuclear materials, radioactive substances and waste, other chemicals, bacteriological materials, weapons and other products (goods) prohibited or restricted for free circulation, as well as other work.

In accordance with the Model Agreement on full individual liability, the employee is obliged to: 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; promptly inform the employer or immediate supervisor of all circumstances that threaten to ensure the safety of the property 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 the property entrusted to him; participate in the inventory, audit, other verification of the safety and condition of the property entrusted to him.

In turn, the employer is obliged: to create the conditions necessary for the employee to work normally and ensure the complete safety of the property entrusted to him; to acquaint him with the legislation on liability, as well as regulatory legal acts regulating the procedure for storing, receiving, processing, selling, transporting and using the property transferred to him in the production process; carry out, in accordance with the established procedure, inventory, audits and other checks of the safety and condition of property.

Failure by the employer to fulfill the obligations imposed on him by the contract, if this contributed to the occurrence of material damage, may serve as a basis for reducing the amount of damage recovered from the employee or exempting him from liability.

Collective (team) liability is introduced when employees jointly perform certain types of work related to the storage, processing, sale (vacation), transportation, use or other use of the values ​​transferred to them, when it is impossible to distinguish between the responsibility of each employee for causing damage and conclude an individual full compensation agreement.

The list of works, during the performance of which full collective (team) liability for the shortage of property entrusted to employees can be introduced, practically coincides with the list of works, during the performance of which an agreement on full individual liability is concluded with employees.

Under an agreement on collective liability, a pre-established group of workers (team) assumes responsibility for the lack of values ​​entrusted to it.

General provisions on the procedure for concluding an agreement on full collective liability are provided for in the standard form of such an agreement. In accordance with it, the acquisition of a newly created team (team) is carried out on the basis of the principle of voluntariness. The decision of the employer to establish full collective (team) liability is formalized by order (instruction) of the employer and is announced to the team (team). The order (instruction) of the employer on the establishment of full collective (team) liability is attached to the contract.

When new employees are included in the team (team), the opinion of the team (team) is taken into account.

The leadership of the team (team) is assigned to the head of the team (team leader).

The foreman is appointed by order (instruction) of the employer. At the same time, the opinion of the collective (team) is taken into account.

In the temporary absence of the foreman, his duties are assigned by the employer to one of the members of the brigade.

In the event of a change in the head of the team (team leader) or when more than 50% of its original composition leaves the team (team), the contract must be renegotiated. However, when individual employees leave the team (team) or when new employees are admitted to the team (team), the contract is not renegotiated, but in these cases, the date of his departure is indicated against the signature of the retired member of the team (team), and the newly hired employee signs the contract and indicates the date joining a team (team).

An agreement on full collective (brigade) liability must be signed by each member of the team. It defines the mutual rights and obligations of the team members and the employer. In particular, the team (team) is obliged to:

take care of the property entrusted to the team (team) and take measures to prevent damage;

in accordance with the established procedure, keep records, draw up and timely submit reports on the movement and balances of the property entrusted to the team (team);

inform the employer in a timely manner of all circumstances that threaten the safety of the property entrusted to the team (team).

In accordance with the contract, the employer is obliged to:

create for the collective (team) the conditions necessary to ensure the complete safety of the property entrusted to it;

take timely measures to identify and eliminate the reasons that prevent the team from ensuring the safety of the entrusted property, identify specific persons guilty of causing damage, and bring them to justice established by law;

to acquaint the team (team) with the legislation and other regulatory legal acts on the liability of employees, as well as on the procedure for storage, processing, sale (vacation), transportation, use in the production process and other operations with the property transferred to it;

provide the team (team) with the conditions necessary for timely accounting and reporting on the movement and balances of the property entrusted to it, etc.

The basis for bringing the brigade to liability are the results of the inventory, which established the presence of damage.

The damage subject to compensation is distributed among the team members in proportion to the monthly tariff rate (salary) and the time actually worked for the period from the last inventory to the day the damage was discovered.

A member of the brigade is exempted from compensation for damage if he proves that the damage was not caused through his fault, or specific culprits from among the members of the brigade are identified.

In the event of damage, members of the brigade can voluntarily compensate for the damage caused. In this case, by agreement between all members of the team and the employer, the degree of guilt of each individual member of the team (team) in causing damage is established and, accordingly, the degree of guilt is determined by the amount to be recovered in compensation for the damage caused.

If the recovery of damage is carried out in court, the degree of guilt of each member of the team (team) in causing damage is established by the court. When determining the amount of damage to be compensated by each of the employees, the court also takes into account the amount of the monthly tariff rate (official salary) of each person, the time that he actually worked as part of a team (team) for the period from the last inventory to the day the damage was discovered.

When considering a claim for compensation for damage by a team (team), the court also checks whether the employer has complied with the rules for establishing collective (team) material liability provided for by law, and also whether a claim has been brought against all members of the team (team) who worked during the period when the damage occurred. If the claim is not brought against all members of the team (team), the court, based on Art. 43 of the Code of Civil Procedure, has the right, on its own initiative, to involve them in the case as third parties who do not declare independent claims regarding the subject of the dispute, on the side of the defendant, since the correct determination of the individual responsibility of each member of the team (team) depends on this (paragraph 14 of the Resolution of the Plenum RF Armed Forces dated November 16, 2006 No. 52).

One-time documents for receiving valuables are usually issued in cases where it is not possible to perform this work by a person who has concluded an agreement on full individual liability. An employee whose duties do not include the performance of this kind of work can be issued a one-time document for receiving valuables only with his consent.

In case of intentional damage (clause 3, part 1, article 243 of the Labor Code). To bring to full liability on this basis, it is necessary to identify the form of guilt of the employee in causing damage. It is allowed if it is established that the damage was caused intentionally, that is, if there is guilt in the form of intent.

If the shortage of property entrusted to the employee, its damage or destruction occurred due to negligence, limited liability arises within the limits of the average monthly earnings.

The presence of intent in the actions (inaction) of the employee must be proven by the employer. ?

When causing damage in a state of alcoholic, narcotic or other toxic intoxication (clause 4, part 1, article 243 of the Labor Code). Full material liability in case of causing damage while intoxicated occurs regardless of whether the employee’s intent was to cause damage or the damage was caused by negligence. This is due to the fact that the very fact of appearing at work in a state of intoxication is a gross violation of labor discipline. In order to bring the employee to full liability in this case, the employer must prove that the damage was caused by the employee in a state of intoxication. ?

When damage is caused as a result of the employee’s criminal actions established by a court verdict (clause 5, part 1, article 243 of the Labor Code). In this case, we are talking about criminal actions established by a court verdict, therefore, it cannot be a basis for bringing an employee to full financial responsibility, for example, initiating a criminal case against him, or conducting investigative actions in this case, or removing the employee from work, etc.

An employee who has been acquitted due to lack of corpus delicti or the case has been terminated on this basis at the stage of preliminary investigation cannot be brought to full financial responsibility. At the same time, the release of an employee from criminal liability under an amnesty, due to the expiration of the statute of limitations and for other non-rehabilitating reasons, does not relieve him of full liability, since the criminal nature of the actions that caused the damage was established by the court verdict. This circumstance is specifically indicated in the Decree of the Plenum of the Armed Forces of the Russian Federation dated November 16, 2006 No. 52. It states: “Given that the presence of a guilty verdict of the court is a prerequisite for the possible bringing of an employee to full liability under paragraph 5 of part one of Article 243 of the Labor Code, termination criminal case at the stage of preliminary investigation or in court, including on non-rehabilitating grounds (in particular, in connection with the expiration of the statute of limitations for criminal prosecution, as a result of an amnesty act), or the issuance of an acquittal by the court cannot serve as a basis for bringing a person to full liability.

If a guilty verdict was passed against an employee, however, as a result of an amnesty act, he was completely or partially released from punishment, such an employee may be held fully liable for damage caused to the employer, on the basis of paragraph 5 of part one of Article 243 of the Labor Code, since there is an the judgment of the court, which established the criminal nature of his actions.

The impossibility of bringing an employee to full liability under paragraph 5 of part one of Article 243 of the Labor Code does not exclude the right of the employer to demand from this employee full compensation for the damage caused on other grounds.

When the damage was caused as a result of an administrative offense, if such is established by the relevant state body (clause 6, part 1, article 243 of the Labor Code). An administrative offense (offence) is an unlawful, guilty action (inaction), for which, in accordance with the Code of Administrative Offenses or the laws of the constituent entities of the Russian Federation on administrative offenses, administrative liability is provided.

According to Art. 22.1 of the Code of Administrative Offenses, cases of administrative offenses provided for by this Code are considered within the competence established by law: by judges (magistrates); commissions for minors and protection of their rights; federal executive bodies, their institutions, structural subdivisions and territorial bodies, as well as other state bodies authorized to do so on the basis of the tasks and functions assigned to them by federal laws or regulatory legal acts of the President of the Russian Federation or the Government of the Russian Federation.

Cases of administrative offenses provided for by the laws of the constituent entities of the Russian Federation are considered within the powers established by these laws: by justices of the peace; commissions for minors and protection of their rights; authorized bodies and institutions of the executive authorities of the constituent entities of the Russian Federation; administrative commissions, other collegiate bodies created in accordance with the laws of the constituent entities of the Russian Federation.

The decision of the court (justice of the peace) or the decision of the authorized body on the imposition of an administrative penalty for the commission of an administrative offense by an employee, if as a result of this misconduct the employer has suffered material damage, is the basis for bringing the employee to full financial responsibility.

Article 3.2 of the Code of Administrative Offenses provides for the following administrative penalties for committing administrative offenses: a warning, an administrative fine, reimbursable seizure of the instrument or subject of an administrative offense, confiscation of the instrument or subject of an administrative offense, deprivation of a special right granted to an individual, administrative arrest, administrative expulsion from the Russian Federation foreign citizen or stateless person, disqualification.

An employee who caused material damage to an employer as a result of an administrative offense compensates for this damage, regardless of the type of administrative punishment applied to him, for example, an administrative fine.

If an employee was released from administrative responsibility for committing an administrative offense due to its insignificance, which, based on the results of the consideration of the case on an administrative offense, a decision was made to terminate the proceedings on the case of an administrative offense, and an oral reprimand was announced to the employee, such an employee may also be held liable in the full amount of the damage caused, since with the insignificance of an administrative offense, the fact of its commission is established, and all signs of the offense are revealed and the person is released only from administrative punishment (Article 2.9, clause 2, paragraph 2, part 1, article 29.9 of the Code of Administrative Offenses).

Since the expiration of the statute of limitations for bringing to administrative responsibility or the issuance of an amnesty act, if such an act eliminates the application of an administrative penalty, is an unconditional basis excluding proceedings in a case of an administrative offense (clauses 4, 6 of article 24.5 of the Code of Administrative Offenses), in these situations, the employee does not may be brought to full liability under paragraph 6 h. 1 Article. 243 of the Labor Code, however, this does not exclude the right of the employer to demand full compensation from this employee for damages on other grounds (clause 12 of the Decree of the Plenum of the Armed Forces of the Russian Federation of November 16, 2006 No. 52). ?

When the damage arose as a result of the disclosure by the employee of information constituting a legally protected secret (official, commercial or other) (clause 7, part 1, article 243 of the Labor Code). Disclosure of information constituting a secret protected by law is the basis for bringing the employee to full financial liability, provided that the obligation of the employee not to disclose the specified information is provided for by the employment contract concluded with him or an annex to it, and if full liability for damage caused by the disclosure of such information, expressly provided for by federal law.

At the same time, it should be emphasized that we can only talk about compensation by the employee for direct actual damage. ?

When causing damage not in the performance of labor duties by the employee (clause 8, part 1, article 243 of the Labor Code). Full liability arises in this case, regardless of when such damage is caused: during working hours, after it ends or before work begins. For example, an employee broke a machine while manufacturing any parts or objects on it for personal purposes, caused a car accident while using it for his personal business, etc.

4.3. The list of cases of bringing employees to full liability, provided for in Art. 243 of the Labor Code is exhaustive. This means that in all other cases of damage caused by an employee who has an employment relationship with the employer, only limited liability arises.

^ 5. Determining the amount of damage caused to the employer depends on the nature of the offense as a result of which the damage occurred, the form of guilt of the person who caused the damage and the type of property lost. ?

If damage is caused as a result of loss or damage to property, the amount of damage is determined by actual losses calculated on the basis of market prices in force in the area on the day the damage was caused. In cases where it is impossible to determine the day of damage, the employer has the right to calculate the amount of damage on the day of its discovery. At the same time, it should be borne in mind that if, during the time the case is being considered in court, the amount of damage caused to the employer by the loss or damage to property changes due to an increase or decrease in market prices, the court is not entitled to satisfy the employer’s claim for compensation by the employee for damage in a larger amount, or the employee's claim for damages in a smaller amount than it was determined on the day of its infliction (discovery), since the Labor Code of the Russian Federation does not provide for such a possibility (clause 13 of the Decree of the Plenum of the Armed Forces of the Russian Federation of November 16, 2006 No. 52).

The market price is the most probable price at which this object of appraisal can be alienated on the open market under competitive conditions, when the parties act reasonably, having all the necessary information, and any extraordinary circumstances are not reflected in the value of the transaction price, i.e. when: ?

one of the parties to the transaction is not obliged to alienate the object of assessment, and the other party is not obliged to accept the performance; ?

the parties to the transaction are well aware of the subject of the transaction and act in their own interests; ?

the valuation object is presented on the open market through a public offer typical for similar valuation objects; ?

the price of the transaction is a reasonable remuneration for the object of assessment and there was no coercion to conclude a transaction in relation to the parties to the transaction from either side; ?

payment for the object of assessment is expressed in monetary terms (Article 3 of the Federal Law of July 29, 1998 No. 135-FZ “On Appraisal Activities in the Russian Federation”).

In cases where the amount of damage determined at market prices turns out to be lower than the value of the lost or damaged property according to accounting data (taking into account the degree of depreciation of this property), the amount of damage is determined according to accounting data.

This is the most common way to determine the amount of damage.

If the damage was caused to the employer by theft, deliberate damage, shortage or loss of certain types of property and other valuables, the federal law may establish a special procedure for determining the amount of damage to be recovered.

A special procedure for determining the amount of damage may be established by federal law even if the actual amount of damage caused exceeds its nominal amount. However, federal laws that would establish a special procedure for determining the amount of damage in these cases have not been adopted to date.

At the same time, Federal Law No. 3-FZ of January 8, 1998 “On Narcotic Drugs and Psychotropic Substances” provides for liability of employees in multiples for damage resulting from theft or shortage of narcotic drugs or psychotropic substances. In accordance with it, if non-performance or improper performance of labor duties by employees resulted in theft or shortage of narcotic drugs or psychotropic substances, they bear material liability in the amount of 100 times the amount of direct actual damage caused to a legal entity as a result of theft or shortage of narcotic drugs or psychotropic substances (clause 6, article 59).

^ 6. The procedure for compensation for damage caused by an employee to an employer is established by Art. 247 and 248 of the Labor Code. Conventionally, it can be divided into two stages. The first is to establish the circumstances (causes) of the damage and its size. The second one includes the collection procedure itself.

At the first stage, before making a decision on compensation for damage to a specific employee, the employer is obliged to conduct a thorough check of the causes of damage and, depending on its results, determine the amount of damage (part 1 of article 247). When conducting an inspection, the employer must establish whether the employee’s behavior was unlawful and his fault in causing damage, whether there are circumstances excluding liability in this case, etc.

To clarify all these circumstances, the employer has the right to create a special commission with the involvement of relevant specialists in its work.

When determining the causes of damage, the commission is obliged to take into account the explanation of the employee who is held liable. An explanation from the employee must be obtained in writing. In cases where the employee refuses or evades providing the specified explanation, an appropriate act is drawn up.

The results of checking the cause of the damage and determining its amount must be documented, for example, an inventory act, a defective list, etc. The employee has the right to get acquainted with all the materials of the check personally or entrust it to his representative. If the employee does not agree with the results of the audit, he has the right to appeal them.

The procedure for recovering from the guilty employee the established amount of the damage caused depends on its size.

If the amount of the damage caused does not exceed the average monthly salary of the employee, the recovery is made by order of the employer, i.e. in undisputed order. In this case, the employer's order must be made no later than one month from the date when the amount of damage caused was finally determined. If the employer has not made the appropriate order within the specified period, he can recover from the employee the damage caused by him only in court.

The damage caused by the employee is recovered only in court and in cases where the amount of damage to be recovered exceeds the average monthly salary of the employee, and the employee did not agree to voluntarily compensate for the damage caused to the employer.

If the employer, in violation of the established procedure for recovering damages, nevertheless made a deduction from the employee's salary, then the employee has the right to appeal against the actions of the employer in court. The court considering the labor dispute on the complaint of the employee makes a decision on the return to the employee of the illegally withheld amount.

An employee who pleads guilty to causing damage to the employer may voluntarily compensate for this damage in whole or in part. If the employer and the employee have agreed on compensation by the employee for damages with installment payment, then they must draw up such an agreement in writing. The written obligation given by the employee must indicate the specific terms of payments and the amounts contributed by the employee to repay the damage in each of the stipulated terms.

The written obligation of the employee to compensate for damages with installment payment remains valid even in the event of dismissal of the employee. If the resigned employee refuses to compensate for the damage caused to the employer, the employer has the right to recover the outstanding debt in court.

^ 7. As a general rule, the damage caused to the employer is compensated by the employee in cash. However, with the consent of the employer, the employee may transfer to him equivalent property to compensate for the damage caused. By agreement with the employer, the employee may also repair damaged property on his own or at his own expense. If the issue of compensation for damage is considered in court, then, as explained in the Decree of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52, the question of the method of compensation for the damage caused in cases where the employee wishes to transfer equivalent property to the plaintiff or repair damaged property , is decided by the court based on the specific circumstances of the case and taking into account the observance of the rights and interests of both parties (paragraph 17).

The material liability of the employee for damage caused to the employer occurs regardless of whether the employee is brought to disciplinary, administrative or criminal liability for the unlawful act that resulted in the damage (part 6 of article 248 of the Labor Code).

The body for the consideration of labor disputes, when considering the claim of the employer for the recovery of material damage from the employee, may, taking into account the form and degree of fault of the employee in causing damage, his financial situation, reduce the amount of damage to be recovered from the employee, but is not entitled to completely release the employee from such an obligation (Art. 250 TK). When assessing the financial situation of an employee, his property status (the amount of earnings, other basic and additional income), his marital status (the number of family members, the presence of dependents, deductions from executive documents), etc. (clause 16 of the Decree of the Plenum of the Supreme Court RF dated November 16, 2006 No. 52).

The basis for reducing the amount of damage recovered from the employee may be other specific circumstances in which this damage arose. For example, the conditions for the storage of property entrusted to the employee, the organization and working conditions of the employee who is a financially responsible person, etc. According to established practice, the court also takes into account what measures the employee took to prevent damage, whether he informed the employer of its possible occurrence, what measures are taken by the employer to prevent damage.

The labor dispute resolution body has the right to reduce the amount of damages recovered both in cases where the employee has full liability, and in cases where the employee bears only limited liability. Reducing the amount of recoverable damage is also possible with collective (team) liability, but only after determining the amounts to be recovered from each member of the team (team), since the degree of guilt, specific circumstances for each member of the team (team) may be different (for example, active or indifferent attitude of the employee to the prevention of damage or reduction of its size). At the same time, it should be taken into account that a reduction in the amount of the penalty from one or more members of the team (team) cannot serve as a basis for a corresponding increase in the amount of the penalty from other members of the team (team) (clause 16 of the Decree of the Plenum of the RF Armed Forces dated November 16, 2006 No. 52).

The Labor Code does not define any limits for reducing the amount of damage recovered from an employee. In this regard, this issue is decided by the relevant body in each specific case, based on the actual circumstances of the case.

However, a reduction in the amount of damage is not allowed if the damage was caused by a crime committed for personal gain (part 2 of article 250 of the Labor Code).

^ 8. In the cases provided for by Art. 249 of the Labor Code, the employee is obliged to reimburse the employer for the costs incurred by him in connection with his training at the expense of the employer. Such an obligation arises for the employee in the presence of the following mandatory conditions: 1)

the employee is sent for training by the employer; 2)

training was carried out at the expense of the employer; 3)

the employee quit his job before the expiration of the period stipulated by the employment contract or agreement on employee training at the expense of the employer; four)

the reason for dismissal is not valid; 5)

the condition on the obligation of the employer to pay for training, and the employee to work after training for a certain period of time is provided for by an employment contract or a special training agreement concluded in writing.

The initiative to send for training at the expense of the employer can come from both the employer and the employee himself. The condition on the obligation of the employer to pay for training, and the employee to work after training for a certain period of time may be included in the employment contract at its conclusion or drawn up by a special agreement during the period of his work with this employer. The specific period that the employee must work after training is determined by agreement of the parties.

The legislation does not establish a list of reasons that would be recognized as valid when dismissing an employee before the expiration of the period stipulated by the parties.

According to established practice, such reasons include: illness or disability of an employee that prevents the continuation of work, violation by the employer of labor legislation, a collective or labor agreement, illness of a child or other close family members, moving a husband (wife) to another area, etc. In each specific case, the validity of the reason for early dismissal from work is determined by the employer. However, if the employee does not agree with the assessment of the validity of the reason given by the employer, he can apply to the court. The question of the validity of the reason for the dismissal of the employee before the expiration of the period stipulated by the parties may be resolved by the court and when considering the employer's claim to recover from the employee the costs associated with the employee's training.

When assessing the reasons for early termination of an employment contract, Art. 80 of the Labor Code, which refers to valid reasons that made it impossible to continue working, enrollment in an educational institution, retirement, established violation by the employer of labor legislation and other regulatory legal acts containing labor law norms, local regulations, terms of a collective agreement, agreement or labor contract.

The obligation to reimburse, at the request of the employer, the costs associated with training, including the stipend received during the apprenticeship, also arises for persons who have entered into an apprenticeship agreement if, after the end of the apprenticeship, they do not fulfill their obligations under the agreement without good reason, in particular, they do not start work (Article 207 of the Labor Code).

When considering the issue of the obligation of an employee who studied at the expense of the employer and, without good reason, did not work after training for the period established by the employment contract or agreement, to reimburse the expenses incurred by the employer associated with his training, it is necessary to proceed from the rules established by Art. 249 TK. According to the above article, in the event of dismissal without good reason before the expiration of the period stipulated by the employment contract or agreement on training 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. Other rules may be established by an employment contract or a training agreement. However, the general requirements enshrined in Part 2 of Art. 232 TK. In accordance with them, the contractual liability of the employer to the employee cannot be lower, and the employee to the employer - higher than provided for by the Labor Code or other federal law.

The legislation provides for two types of liability:

• 1) material liability of the employee to the employer;
• 2) the liability of the employer to the employee.

These two types of liability are significantly different from each other. Recognizing the legal equality of the parties to an employment contract, the legislation takes into account that the employer:

• 1) economically always stronger than an individual worker;
• 2) organizes the labor process and bears responsibility in connection with this for any adverse consequences that may arise;
• 3) as the owner of the property bears the burden of its maintenance and the risk of accidental loss or accidental damage.

On the other hand, the legislation proceeds from the fact that the main value of a person is his physical and mental ability to work, which he can realize in various legal forms, but primarily through the conclusion of an employment contract. What has been said determines the difference in the two types of responsibility.

The material responsibility of the employee consists in the obligation to compensate for property damage caused through his fault to the employer with whom he is in an employment relationship.

Article 165 of the Labor Code of the Republic of Kazakhstan establishes the liability of the employee for causing damage to the employer:

• 1. The employee's liability for damage caused to the employer occurs in the cases and in the amounts provided for by this Code.
• 2. The employee is obliged to compensate the direct actual damage caused to the employer.
• 3. The employee's liability for damage caused to the employer is excluded if the damage arose as a result of force majeure or extreme necessity, necessary defense, as well as the employer's failure to fulfill the obligation to ensure proper conditions for the safety of property transferred to the employee.
• 4. It is unacceptable to lay liability on an employee for such damage that can be classified as a normal production and economic risk.
• 5. The employer is obliged to create conditions for employees necessary for normal work and ensuring the complete safety of the property entrusted to them.
• 6. 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 acquisition or restoration of property.

The material liability of the employee occurs when the following conditions are present simultaneously:

1) real actual harm suffered by the employer. Direct actual damage is understood as damage to cash, real-life property through the loss of it (or part of it), appropriation, deterioration, damage, depreciation, which led to the need for the employer to incur costs for the restoration, acquisition of property or other valuables, or to make excessive payments for the fault of the employee to another entity (natural or legal person).

In contrast to civil law, in labor law, only direct actual damage is subject to recovery. The current labor legislation does not allow the recovery from the employee of the income that the organization could have received, but did not receive due to the employee's wrong actions. For example, it is impossible to recover from an employee who has committed absenteeism without a good reason for losses caused by machine downtime throughout the working day. Measures of disciplinary or social influence may be applied to such an employee.

Damage expressed in monetary terms is called a loss. Actual harm (direct loss) should be distinguished from imaginary harm (imaginary loss). Imaginary harm occurs when there was no real decrease or deterioration of property, but due to incorrect documentation of the movement of material assets, according to accounting data, there is a shortage.

2) The illegality of the action (for example, theft of building materials) or the illegality of the inaction (for example, the failure to take measures to prevent excessive fuel consumption), as a result of which damage was caused, i.e. violation by the employee of the labor duties assigned to him.

Illegal is any behavior that is expressed in violation by the employee of the obligation to observe labor discipline and take care of the property of the organization.

Evidence of the unlawfulness of the employee's behavior is acts of disposal, loss or damage to property, invoices, explanatory notes, reports, reports from competent authorities and other documents. Indisputable evidence of the wrongfulness of the actions of the employee who caused harm is bringing him to criminal or administrative responsibility.

But harm can also be caused by lawful actions. Lawful actions that exclude liability for harm caused include actions taken in a state of necessity to prevent the onset of greater harm, as well as actions taken in a state of emergency or due to force majeure.

3) The fault of the employee in causing harm. Liability rests with the employee, provided that the damage was caused only through his fault. Guilt as a condition of material liability lies in the fact that the tortfeasor foresaw or could foresee the consequences of his actions, as well as in his attitude to the deed. Guilty is an unlawful act committed by an employee intentionally or carelessly. There are two forms of guilt: intent (direct or indirect) and negligence (frivolity or negligence). The form of guilt affects the type and amount of the employee's liability.

To correctly determine the amount of liability, it is necessary to carefully and comprehensively determine the degree of guilt of the employee who caused harm by illegal action or inaction. Direct intent will be evident when the employee is aware of the unlawful nature of his behavior, foresees its harmful consequences and desires their occurrence (for example, in cases of theft, embezzlement). Indirect intent occurs when the employee is aware of the unlawful nature of his act and foresees the possibility of damage. At the same time, he does not want the onset of harm, but consciously allows its occurrence, or indifferently, uncritically refers to the possibility of harm. In the form of negligence, damage can be caused by negligence, when the guilty person could and should have foreseen the occurrence of harm, but did not take measures to prevent it.

Material harm can also be caused if the employer and the employee are at fault. Mixed guilt occurs when at the same time the employee has an improper attitude towards the safety of the property entrusted to him, and the employer does not take measures to ensure the safety of the said property.

4) Causal relationship between the unlawful behavior of the employee and the harm caused. Illegal action or inaction of an employee is a prerequisite for compensation for material damage only when the harm was caused specifically to them. The absence of a causal relationship between the action (inaction) of the employee and the harm caused excludes bringing him to liability. Therefore, before deciding whether the employee is guilty and causing harm, it is necessary, firstly, to establish the existence of a causal relationship between the action (inaction) and the result, and secondly, to determine whether the harm caused is a direct consequence of this action (inaction) or whether it arose due to other circumstances.

These are the mandatory conditions for the onset of material liability of the employee, in the absence of at least one of the listed conditions, material liability does not come.

Labor law provides for two types of material liability - limited and full material liability. The first is limited to a certain limit in relation to the wages of the tortfeasor, and the second is equal to the amount of damage caused. As an innovation, the Labor Code of the Republic of Kazakhstan establishes limited liability within the limits of the average monthly wage. Article 166 of the Labor Code of the Republic of Kazakhstan limits the liability of an employee. For the damage caused, the employee is liable within the limits of his average monthly salary, unless otherwise provided by this Code. In exceptional cases, full liability applies.

Article 167 of the Labor Code of the Republic of Kazakhstan establishes cases complete material liability of the employee for causing damage to the employer. Liability in the full amount of damage caused to the employer is assigned to the employee in the following cases:

• 1) failure to ensure the safety of property and other valuables transferred to the employee on the basis of a written agreement on the assumption of full liability;
• 2) failure to ensure the safety of property and other valuables received by the employee under the report on a one-time document;
• 3) infliction of damage in a state of alcoholic, narcotic or substance abuse intoxication (their analogues);
• 4) shortage, deliberate destruction or deliberate damage to materials, semi-finished products, products (products), including during their manufacture, as well as tools, measuring instruments, special clothing and other items issued by the employer to the employee for use;
• 5) causing damage by illegal actions of an employee, confirmed in the manner prescribed by the legislation of the Republic of Kazakhstan.

First of all, the question arises of what should be understood as full liability. It seems that full liability includes both damage to property and lost profits. In other words, not only direct real harm, but also lost income that the employer would have received if there had been no offense on the part of the employee.

According to the general rules, employees under the age of 18 are not held fully liable. At the same time, according to the legislation of some countries, there may be exceptions to this rule that allow full material liability of minors if the harm was caused intentionally, in a state of alcoholic, narcotic or toxic intoxication, as a result of a crime. For example, a novelty in Russian legislation is compensation for damage in full as a result of an administrative offense, if such is established by the relevant state body. If, as a result of an administrative offense, harm was caused to the employer, then the employee who committed this offense may be held fully liable. Kazakh legislation generally does not provide for full material liability for minors, considering that they can only be brought to limited material liability, even if harm is caused intentionally. And this is wrong, since the institution of financial responsibility has not only a punitive, but also an educational function.

Employees can be held fully liable regardless of their position or work performed. The form of guilt of the employee is important - only intent. Only in case of intentional destruction or damage to property comes full liability.

Further, what I would like to dwell on is the possibility, under the current labor legislation, of concluding agreements on collective (brigade) liability by an employee for material harm caused to the employer. This issue was not sufficiently developed in the previous labor law of the Republic of Kazakhstan.

Such liability of employees was provided for by Art. 119-2 of the Labor Code of the Kazakh SSR.15 The Labor Code of the Kazakh SSR allowed both the conclusion of an agreement on full liability (Article 119-1) and collective (team) liability. According to the now canceled labor legislation, collective (brigade) liability and the conditions for its application were established. A model agreement on collective (brigade) liability was approved in a centralized manner. Such liability was introduced when employees jointly performed certain types of work related to storage, processing, sale (vacation), transportation or use in the production process of the values ​​transferred to them, when it was impossible to distinguish between the liability of each employee. In this case, the valuables were handed over to a predetermined group of workers, each of whose members was responsible for the damage caused as a result of the failure to ensure the safety of the valuables. The amount of responsibility of a team member was determined in proportion to the tariff rate and the time actually worked by him for the period from the last registration to the day the harm was discovered.

Meanwhile, in the educational literature on labor legislation, agreements on the collective (brigade) liability of workers are indicated. It is unlikely that this statement is based on the law.

The previous law "On Labor in the Republic of Kazakhstan" did not contain a norm on collective (brigade) liability. Obviously, this is not accidental and is not at all explained by the saving of legislative material, but by the fundamental rejection of the law from agreements on collective (brigade) liability as infringing on the interests of employees and deviating from the principle of responsibility of employees for guilty actions.

In the new Labor Code of the Republic of Kazakhstan, the provision on collective (team) liability is enshrined in Article 168, employees jointly performing work related to storage, processing, sale (vacation), transportation, use or other use in the production process of property and valuables transferred to them when it is impossible to distinguish between the liability of each employee for causing damage, and the employer concludes in writing an agreement on the full collective (solidary) liability of employees for failure to ensure the safety of property and other valuables transferred to employees.

Thus, the provision on collective (brigade) liability has been revived in the Labor Code of the Republic of Kazakhstan, since in practice it is objectively necessary to lay responsibility on both the entire team as a whole and on each of its guilty members. Such liability is introduced when employees jointly perform certain types of work related to the storage, processing, sale (vacation), transportation or use in the production process of the values ​​transferred to them, when it was impossible to distinguish between the liability of each employee. In this case, the valuables are handed over to a predetermined group of employees, each of whose members is responsible for the damage caused as a result of the failure to ensure the safety of the valuables. The amount of responsibility of a team member is determined in proportion to the tariff rate and the time actually worked by him for the period from the last registration to the day the harm was discovered.

The necessity of distinguishing the positive and negative responsibility of the team of workers is substantiated, since the nature of these types of responsibility is different. If the positive responsibility of the team is preventive and educational in nature, then the negative responsibility deprives the team of a certain part of the income, which also affects the property status of each employee. These types of liability should be provided for in the legislation. When the employee is liable to the employer, the direct culprit of the harm is a specific employee who occupies a subordinate position in relation to the employer and acts only on his own behalf. And since the harm is compensated exclusively from the employee's funds, then recourse liability does not apply to him. In practice, there are cases when the cause of harm is the guilty actions of the employer or the harm occurs as a result of the execution of the order of the employer. The employer, represented by the head of the organization, by his unlawful behavior can directly cause harm or creates, as it were, conditions for causing it by other persons (for example, not registering and storing material or other values, which creates conditions for their misappropriation or damage by employees). In these cases, the liability of the worker must be excluded.

The guilt of the employee in causing harm can be twofold. Firstly, the fault is indirect due to insufficient qualifications or a negligent attitude to the performance of their labor duties. Secondly, - out of selfish motives or out of personal interest. In our opinion, in order to protect the wages of employees, it is necessary to establish differentiated limited liability in the presence of indirect fault of the employee. Intentional infliction of harm should entail full liability without any reservations. Moreover, intent is characterized by the fact that the employee foresees the harmful consequences of his behavior and wishes or consciously allows them to occur, which means that there is no doubt about his guilt (with the exception of a shortage that may arise both by intent and as a result of the employee’s careless behavior). In labor law, we do not find any definition of guilt, nor the outlines of the general framework of intent and negligence. Each form of guilt has its own characteristics, reflected in the types and amounts of liability.

All negligent misdeeds are characterized by the negligent attitude of the subject to his actions and consequences. The psychological mechanism of negligent misconduct is also peculiar, therefore it is proposed to distinguish between the liability of employees based on the form of guilt: negligence or intent. A balanced state-legal regulation of social and labor relations is necessary. You can not completely give the employer the establishment of liability. The state should not play the role of a passive observer of the processes taking place in the labor market, it should foresee the consequences of market regulators and foresee an active socially oriented policy of legal regulation of the labor market. The implementation of this function of the state is possible only by saturating the labor legislation with means that ensure the priority of the interests of the employee over the interests of the employer. Legal regulation of labor should be based on the idea of ​​legal inequality between the employee and the employer.

The procedure for compensation by the parties to the employment contract for the damage (harm) caused is established by Article 169 of the Labor Code of the Republic of Kazakhstan. A party to an employment contract that has caused damage (harm) to the other party shall compensate it in the amount established by this Code and the laws of the Republic of Kazakhstan, on the basis of a court decision or on a voluntary basis.

The amount of damage caused to the organization is determined by actual losses based on accounting data, based on the book value of material assets minus depreciation according to established standards. In case of theft, shortage, deliberate destruction or deliberate damage to material assets - at state retail prices, and in cases where material assets are lower than wholesale prices - at wholesale prices.

The amount of reimbursable damage caused through the fault of several employees is determined for each of them, taking into account the degree of fault individually in a shared ratio. This means that the degree of guilt of each employee must be taken into account.

The legislation allows for voluntary compensation to employees of the damage caused, both in full and in part. With the consent of the employer, the employee has the right to transfer property of equal value to compensate for the damage or to repair the damaged one.

Voluntary indemnification should be distinguished from a written consent to withhold the amount of indemnification.

Voluntary compensation for damage is the transfer to the enterprise of either the amount or certain property, and it is not limited by either the type of liability or its limits.

If in the course of labor activity the employee caused damage to third parties and this damage was compensated by the organization in accordance with the law, then the employee may be obliged to compensate for this damage by way of recourse.

Under current legislation, the amount of deductions cannot exceed 20% of the salary due to be paid. And only in case of withholding under several executive documents, recovery of up to 50% is allowed. In any case, the employee retains half of his salary.

The fact that one party, being a participant in labor relations, is punished before the other party, is prescribed in the Labor Code. The law stipulates that when there is material liability of employees to the employer, the perpetrator must compensate for the damage that was caused as a result.

general information

In the employment contract itself or in an additional agreement, specific consequences are prescribed that occur in certain cases. At the same time, the fundamental document is, of course, the Labor Code. Therefore, the employee before the employer cannot be established higher, and the employer - lower than that provided for by this law and other acts of federal significance.

Even when the employment contract is terminated, the parties are not exempt from it. The liability of employees to the employer occurs when there are several conditions, one of which is the illegal actions of the employee. At the same time, the latter proves the specific damage done.

Subjects and their duty

There can only be material liability of the employee to the employer. The types of subjects are thus limited to those parties who have entered into an employment contract.

The obligation to pay damages to the employer is regulated by Article 238 of the Labor Code of the Russian Federation. According to it, the employee compensates for the harm caused, which is of a real and direct nature. Such damage is the actual reduction of property, deterioration of it, or the need for the employer to spend funds due to actions that were caused by the employee.

When you don't need to make amends

However, the material liability of employees to the employer will not come if there was an economic risk, defense, emergency or failure to fulfill their obligations as an employer in terms of providing normal conditions for storing these things. In addition, the employer has the right to refuse to recover funds from the employee for the damage caused. This is defined in article 240 of the code. But if the owner of the damaged property is not an employer, then he can restrict this right in accordance with various legal acts of both federal significance and the level of subjects of the Russian Federation, as well as compulsory medical insurance and directly the documents of a particular organization.

Limited and full material liability of the employee to the employer

The next item prescribed in the law is the limits. It is in accordance with them that the material liability of employees to the employer may come. This is determined by article 241. According to it, the punishment may not exceed the amount of the average monthly salary. But separately also indicated cases of full material liability of the employee to the employer:

• When full responsibility is assigned initially by law.
• If there is a shortage of entrusted valuables in accordance with a special agreement.
• In case of intentional damage.
• Due to damage caused by alcohol or drug intoxication.
• As a result of a crime (after a court verdict).
• Because of an administrative offense.
• In case of non-fulfillment of obligations under the contract.
• Because of the disclosure of a secret that, by law, is of a commercial, official or government nature.

The material liability of the employee for damage caused to the employer, which must be paid in full, may be established by an employment contract concluded between the parties, where the chief accountant or deputy heads act as the employee. This is regulated. According to it, in the event of full material liability of the employee to the employer, the first compensates for certain specific damage (which is valid) in full. But this rule applies only when there is a direct indication of the law.

Thus, it turns out that the limits of the employee's liability to the employer are full and limited. We have considered the first type, now we will focus on the second. Limited liability is not directly established by law. However, in practice, the following cases have arisen:

• damage or destruction of property due to negligence;
• shortage of funds, loss or depreciation of any documents, or payment of fines due to the actions of the employee.

Age and responsibility

When determining the material liability of an employee for damage caused to the employer, the age of the employee should be taken into account. Thus, persons under the age of 18 will bear it in full only when intentional damage has been caused due to intoxication with alcohol or drugs and due to the commission of an unlawful act that provides for criminal or administrative punishment. Full liability agreements are concluded only with adult employees who use and maintain valuables: monetary, commodity or otherwise. The works and categories of those who fall under this are approved by the government of the Russian Federation.

Collective and individual responsibility

Depending on the situation, the material responsibility of the employee to the employer differs. Types: collective (brigade) and individual. The first cases occur when it is not possible to delimit the limits of the damage caused by each of the workers. Then an agreement is concluded between the employer and the whole team. Upon the occurrence of the consequences, the employee must prove his innocence and innocence.

When the damage is compensated on a voluntary basis, its amount is determined by a separate agreement, which takes into account the fault of each individual. If the damage is recovered in the course of judicial proceedings, then the guilt and involvement of employees is determined directly by the court.

Before recovering damages, the employer is obliged to establish how much damage has been caused. Article 247 of the Code obliges him to do this. In addition, it is necessary to obtain an explanation of this fact in writing from the employee. If he refused to give explanations or evaded this obligation, then a separate act is drawn up about this.

If desired, the employee can familiarize himself with all the materials of the inspection and appeal against them, if he deems it necessary.

The individual financial responsibility of the employee to the employer is complete. If there is one, a contract is concluded in accordance with the standard form established by a decree of the Ministry of Labor in 2002.

How the damage is compensated

How is damages recovered from an employee found guilty? This is determined in article 248. If the employer has departed from the established procedure, then the employee has the right to sue on this matter.

Damage can be compensated voluntarily. In addition, an additional agreement may be concluded, under which an installment plan is provided for this purpose. Then the employee undertakes to compensate for the damage according to a certain schedule, and this fact is recorded in writing. At the same time, if he quits and refuses to pay the amount recovered, then in the future, a trial is underway, as a result of which the debt will be collected on the basis of a court decision.

If the employer agrees, then compensation for damage is possible by transferring property of equal value. In addition, already damaged property can be fixed by an employee. In this case, the employer transfers this property to the guilty person, and the latter performs the work promised to him in connection with this.

If an employee leaves

Compensation is realized in accordance with Article 249. If the employee leaves before the full compensation period, without good reason, he must reimburse the employer for the costs that he incurred for training, calculated in proportion to the actual time not worked after this training.

The competent authority may reduce the amount of the payment. The decision is made taking into account the form and degree of guilt, as well as various circumstances and conditions of the employee. But in no case will such a decision be made if the damage was recovered as a result of the commission of a criminally punishable act by an employee for selfish purposes.

Preparing for trial

Sometimes an employer has to go to court. Then he provides the following information in order for the employee to become liable to the employer:

1. The employee refuses to fulfill the contract on a voluntary basis.
2. Withdrawal is not possible by order.
3. The amount of damage is more than the average monthly earnings.
4. The employer was not reimbursed for the training costs spent on the employee.
5. He had to pay for the damage caused by the worker.

The right to apply to the court remains for a year from the moment the harm was discovered.

Resolution of the issue in court

On November 16, 2006, the Plenum of the Supreme Court issued Decree No. 52. It regulates how the material liability of the employee to the employer is applied. A sample contract can be seen below. The decision, in particular, states that in order to resolve a case for damages, evidence is required, the burden of which lies with the employer. In particular, he must provide the court with the following evidence:

In this case, the employee is obliged to prove the absence of guilt in the fact that the damage was caused. If guilt is proven, then the burden of compensation for damage falls on him, regardless of whether administrative, disciplinary or criminal liability arises or not.