Forcibly want to force to be the Materially responsible person

Summary

Can a repair shop engineer be held financially liable?
Can a software engineer be a financially responsible person?
Material liability
Contractor's liability
The concept of liability
Financial responsibility of the chief accountant
Material responsible

Questions

1. Can a repair shop engineer be held financially liable?
1.1. All employees may be held financially liable. However, some will be liable for the damage in full, while others will only be held accountable to the extent of their average earnings. You can enter into an agreement on full financial liability with those employees whose positions (or the work they perform) are specified in Resolution of the Ministry of Labor of the Russian Federation dated December 31, 2002 No. 85. Instruct a lawyer or personnel officer to prepare a list of positions (types of work) in your company that correspond to this list.

Employees whose positions are not included in the specified list are compensated for losses within the limits of their average monthly earnings, and there is no need to conclude a separate agreement on financial liability with them. This follows from Article 241 of the Labor Code of the Russian Federation. Source: More >>>

2. Can a software engineer be a financially responsible person?

2.1. no, it cannot, because it is not included in the list of such

3. Good afternoon, I work as an engineer and programmer, they force me to sign a full contract. Financial liability, claiming that I service the employer’s equipment, although my position is not in the list of professions and jobs.

3.1. Hello. There is a current Resolution of the Ministry of Labor of the Russian Federation dated December 31, 2002 N 85 “On approval of lists of positions and work replaced or performed by employees with whom the employer can enter into written agreements on full individual or collective (team) material responsibility, as well as standard forms of agreements on full material responsibility." There, Appendix 1 contains a list of positions and work replaced or performed by employees with whom the employer can enter into written agreements on full individual financial responsibility for shortages of entrusted property. Most likely, in your position there is no provision for the employer to enter into an agreement on full individual financial responsibility. Don't sign any documents on this issue, that's all.

4. Tell me, my position is leading engineer. I am an ordinary employee of the department and my position is the lowest in the department. I don't work with material assets. Can they force me to sign a liability agreement, even though this is not stated in my job description? The bosses want to assign me a vehicle that I do not work with and do not interact with at work.

4.1. Hello. There is a current Resolution of the Ministry of Labor of the Russian Federation dated December 31, 2002 N 85 “On approval of lists of positions and work replaced or performed by employees with whom the employer can enter into written agreements on full individual or collective (team) material responsibility, as well as standard forms of agreements on full material responsibility." There, Appendix 1 contains a list of positions and work replaced or performed by employees with whom the employer can enter into written agreements on full individual financial responsibility for shortages of entrusted property. Most likely, in your position there is no provision for the employer to enter into an agreement on full individual financial responsibility. Don't sign any documents on this issue, that's all.

5. I work as a software engineer. When I got the job, I was not given the goods and materials, and no audit was carried out accordingly. In the process of work, I was accountably allocated money for the purchase of goods, which later in the 1 C program went to the computer software warehouse, in which I was assigned as a responsible person. Is this legal, and am I currently the financially responsible person for the goods that I purchased in the process of work?

5.1. Only if you have signed a liability agreement with you. Article 244 of the Labor Code of the Russian Federation. FOR the goods and materials that were not transferred to you according to the acceptance certificate, you are a swearer. You are not responsible.

6. Was financially responsible - a mechanic, appointed Chief Engineer, does the swearing remain? responsibility.

6.1. You should have been given your job responsibilities under signature. Look there. But, in connection with the change of position, your job responsibilities should also change.

7. I work as a technical equipment engineer. I am a financially responsible person. The management included me in the circle of signatories of the balance sheet. Is this legal and to what extent will I be held responsible?

7.1. Hello Andrei!

A balance sheet is an enterprise accounting document that contains information about the movement of funds in the enterprise’s accounts, as well as their balances at the beginning and end of a certain period. It is not entirely clear in what connection you are signing it. Does your signature confirm that you have read the contents of the SALT? It is compiled by the accounting department, most likely using the 1 C program. Ask for what purpose you were included in the circle of signatories. Strange approach.

8. A colleague at work constantly yells at me. I am an engineer, a financially responsible person, she is not, it is impossible to ask why my requirements for accounting for materials are not met. In the last conversation, I said that I would turn the phone on to record, she stopped yelling. But she called a friend in the police and said that if I turn on the recording of the conversation again, she will write a statement against me, because it is not legal. But did I warn her, or did I need her consent to record the conversation?

8.1. This conflict should be resolved through your manager, you can include a recording, just don’t tell your colleague about this and, another important point, refer to the job description, everything is recorded there, who should do what in the workplace (the rights and responsibilities of the employee).

Liability agreements

Type

Name

Liability Agreement

Instructions for preparing a liability agreement

When hiring workers and fulfilling the duties of an employer, the business owner has the right to count not only on the integrity of his staff, but also on compensation for damage if it was caused by them. The financial responsibility of the employee to the employer is established by Article 238 of the Labor Code of the Russian Federation. According to it, the employee is obliged to compensate the employer for direct actual damage.

Such damage means:

reduction or deterioration of the property of the employer or third parties, if the employer is responsible for its safety;
costs incurred by the employer for the acquisition or restoration of property;
compensation by the employer for damage caused by the employee to third parties.

Lost profits (lost income), even if its connection with the actions of the employee is proven, cannot be recovered from him.

Recovery of damages from the guilty employee is the right of the employer, which he can partially or completely waive (Article 240 of the Labor Code of the Russian Federation).

As a general rule, the employee bears limited financial liability to the employer, in an amount not exceeding his average monthly earnings (Article 241 of the Labor Code of the Russian Federation). However, some categories of employees have access to such employer resources (cash, property, material assets) that can cause very serious damage to him. Such employees are subject to the rules of full financial responsibility, which is not limited to their monthly salary.

Definition

A financially responsible person is an employee who is entrusted with material assets and is fully responsible for them.

Financial liability is regulated by Chapters 37, 39 of the Labor Code of the Russian Federation. The list of financially responsible persons under the Labor Code is established by Art. 244, art. 277.

It must be said that all employees are responsible for damage and loss of the organization’s property within the framework of the average monthly salary; such responsibility is partial. The average salary is calculated based on wages for the previous 12 months.

Otherwise, the financially responsible person is responsible for the obligations. Such responsibility is imposed on the team (team) or personally. Team responsibility is introduced when its members carry out activities together, and it is not possible to isolate the share of participation of each. To avoid team responsibility, a person will have to prove his own innocence with evidence.

Full financial responsibility of employees. Basic provisions

In situations regulated by law, an employee may be held fully financially liable. This means that the named person has an obligation to compensate for the damage caused by the employee’s unlawful guilty act in full (Article 242 of the Labor Code of the Russian Federation of December 30, 2001 No. 197-FZ).

The following employees may be held liable for full financial liability:

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with whom an agreement on full financial responsibility was lawfully signed - by virtue of such an agreement (Article 244 of the Labor Code of the Russian Federation);
who are heads of organizations - by force of law (Article 277 of the Labor Code of the Russian Federation);
who are chief accountants or deputy heads of organizations, provided that their employment contracts include a clause on full financial responsibility - by virtue of such an agreement (paragraph 10 of article 243 of the Labor Code of the Russian Federation);
in respect of which the fact of a shortage of valuables entrusted to them on the basis of a special written agreement or transferred to them under one-time documentation was revealed - by force of law (Article 243 of the Labor Code of the Russian Federation - hereinafter to the end of the list);
intentionally caused damage;
caused damage while under the influence of alcohol, drugs or other types of toxic substances;
caused damage as a result of the commission of a crime (with the obligatory presence of a conviction by a judicial authority);
causing damage as a result of an administrative offense (with the mandatory establishment of the fact of such an offense by the appropriate government agency);
who have published information classified as a secret protected by law in cases regulated at the legislative level;
who caused damage to the employer not while performing their own job functions (for example, during non-working hours, etc.).

Appointment of financially responsible persons

For the director, liability is provided in full.

The deputy director and chief accountant are appointed responsible; if this does not happen, they bear the same responsibility as other employees of the enterprise. To do this, it is enough to include such a condition in the employment contract.

The full responsibility of the employee or team is established by the agreement on the basis of which the order is prepared. The team responsibility agreement is signed by the manager and all team members.

Mandatory conditions for concluding an agreement are:

the worker has reached the age of majority; performing work is impossible without maintenance and use of material assets.

Responsibility in a budgetary institution is characterized by the lack of circulation of money and valuable assets. There are no positions related to such activities.

To avoid contradictions when applying to judicial authorities, the nuances of financial liability should be clarified; they should be contained in the job description. The law does not establish such a requirement.

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If, in accordance with his job duties, an employee makes payments to clients, is responsible for accounting and preserving valuables, and works with the employer’s expensive property, it is worth concluding a liability agreement with him.

The positions of employees with whom it is possible to conclude an agreement on full individual financial responsibility are indicated in a special List, approved. Resolution of the Ministry of Labor of Russia No. 85 of December 31, 2002. Thus, the list includes such positions as cashier, warehouse manager, heads of trading enterprises, etc.

With employees under 18 years of age (minors). However, this does not mean that such employees do not bear any responsibility for the destruction of property or its damage - if the damage was caused intentionally, while intoxicated or due to the commission of a crime, they bear full financial responsibility;
Employees who are registered under the GPA (for example, under a contract). In this case, the citizen is obliged to compensate the company for damages without any additional agreements between the parties.

In practice, there are situations when an employee’s job function includes duties that imply financial responsibility and those that do not. For example, a driver performs the duties of a freight forwarder. The position of a driver is not on the list approved by the Ministry of Labor, but the position of a forwarder is. In this case, it is also possible to conclude an agreement on financial responsibility with the employee, but in terms of those of his duties that allow it.

Responsibilities

Responsible persons of the organization must:

protect the organization’s property and prevent its damage; promptly inform management about the threat of damage; keep records of values and compile reports; participate in checking the availability of property and its condition.

In this case, the administration must:

provide the required environment for employee work and property preservation; familiarize the employee with laws, regulations, other documents relating to liability, local acts; check the availability of property and its condition.

Who bears full responsibility

The worker is liable in full if:

he is given full responsibility; a shortage of valuables was discovered, the administration drew up a document according to which the worker received these valuables; harm was caused with intent, while in a state of intoxication, as a result of the use of alcohol, toxic, narcotic substances, property was damaged or lost as a result of a crime, administrative violation; information has been disclosed, the non-disclosure of which is protected by law; the worker did not fulfill his duties.

Those who have not reached the age of majority bear full responsibility in the third case listed above.

When an employee is released from liability

If the damage occurred due to:

floods, hurricanes, earthquakes, other natural disasters, military actions; when there is a threat to the life of an employee, other citizens, or the state, and it was impossible to eliminate this danger in a different way; defense, if such defense was necessary; natural risk, when tasks cannot be performed in any other way, the worker acted in accordance with the experience and knowledge accumulated by society, performed duties as required; management did not create the required storage conditions.

Recovery of damages

Management has the right to claim damages from the employee; claiming lost income is prohibited by the legislator. The amount of damage is calculated based on average market prices, but not less than the value indicated in the documents, taking into account wear and tear. The legislator may provide another way to determine damage. The need to prove the extent of the damage lies with the person to whom it was caused.

Management has the right to forgive the damage in full, part of it. The owner has the right to impose restrictions. The decision may be influenced by: the amount of damage, the degree of guilt of the worker, his or her reaching the age of majority, the existence of an agreement on full liability. The right not to be used in favor of some, to the detriment of others.
When the damage does not reach the average monthly salary, compensation is deducted by order of management. This must be done within a month after the damage was determined.
When the time has expired, the worker refuses to compensate for damage that is more than the average monthly salary; compensation can only be obtained through the court.
The employee has the right to offer compensation, either partial or full.

The administration has the right to provide an installment plan: the culprit undertakes in writing to compensate for the damage, and a payment schedule is drawn up. If someone who undertakes to compensate for the damage, but refuses, is fired, then it will be possible to recover only through the court.

With the consent of the administration, the employee compensates for the damage with his property and repairs what is broken.

Shortage in informal employment

As practice shows, often heads of organizations do not sign an employment contract with a candidate when hiring. A person is hired and not registered according to the Labor Code of the Russian Federation, and they also do not sign an agreement on financial responsibility, entrusting him with certain property. An employee may make a mistake intentionally or through negligence, which will result in a large shortage.

It is necessary to understand that even an unofficially registered person, if he is at fault, is obliged to compensate for the damage caused to the enterprise. But in this case there are some nuances.

Labor relations are formalized by signing an employment contract. But, Art. 16 of the Labor Code of the Russian Federation provides that labor relations arise between the parties even when a person is actually allowed to perform his duties with the permission of the manager. Accordingly, if an employee has begun to perform his duties and management knows about this, then the employment relationship is considered to have begun. The absence of official registration upon actual admission to work with the consent of the employer does not relieve the parties from fulfilling the obligations imposed by law.

In this case, the employee's liability is limited to his average monthly earnings.

To compensate for the shortage, the management of the enterprise issues an order. If an employee admits his guilt, he can pay everything voluntarily. When the amount of compensation exceeds the average monthly salary, it is impossible to recover from an improperly registered employee.

In any case, there is no point in avoiding writing an explanatory note regarding the shortage. The following must be indicated:

absence of guilt (or presence, if the employee admits);
circumstances that led to the shortage;
lack of a signed employment contract;
lack of documents confirming financial responsibility.

IMPORTANT : art. 56 of the Code of Civil Procedure of the Russian Federation provides for the obligation of everyone to prove the circumstances referred to. Accordingly, the employer will have to prove the existence of a deficiency, the employee’s guilt and responsibility, the existence of an employment relationship, and the employee must provide evidence of the absence of his guilt.

Issues related to shortages are complex and time-consuming, especially if there is also no proper documentation. An employee may face unlawful deductions from wages to cover shortfalls or be forced to repay more than their wages. In this case, it is better to seek legal assistance from our labor dispute lawyer.

List of materially responsible positions

The list of positions is as follows:

cashiers, controllers; everyone working with deposits, bank cards and discount cards; carrying out expert assessment of banknotes and securities; involved in the circulation of money, securities and precious metals; servicing ATMs and clients who place valuables in vaults; collecting and transporting cash and other valuables; cash register attendants; forming and counting cash; employees of all levels of management of trade, food and service enterprises, and the hotel sector; management personnel in organizations engaged in the construction of buildings and structures, installation production; management staff of warehouses, pawnshops, storage rooms, supply managers, commandants, wardrobe maids, storekeepers; senior nurses of medical organizations; agents involved in procurement, delivery, forwarders; heads of pharmaceutical organizations, pharmacists, technologists and pharmacists; laboratory assistants, methodologists at universities, heads of libraries.

List of works for which full responsibility is introduced

Full responsibility, personal, established for the team, is introduced for those employed:

receiving and issuing cash, non-cash payment of fines, utility bills, taxes, etc.; payment for goods and services; operation of automatic machines; issuance and storage of subscriptions, tickets and coupons, and those with which you can pay for services; deposit, examination, liquidation of banknotes, securities, their circulation, as well as precious metals; operating ATMs and storing customer property in vaults; issuance, storage and disposal of credit, debit and discount cards; collection and transportation of money and other valuables; service at the cash registers; purchase and sale of goods and services; in warehousing, hotel room service; accepting valuables from citizens, labor to repair, improve, and store them; rental of such items; cargo turnover, postal items; production, troubleshooting of machines, devices, their parts intended for sale to citizens; circulation and use in the production of precious metals and stones; keeping and breeding farm animals; circulation of nuclear and bacteriological materials, radioactive and chemical substances, weapons and ammunition.

Any employee or only those on the list bears full responsibility? The answer is clear: the employee’s activities must correspond to one of the given lists.

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What positions in organizations are included in the list of financially responsible persons according to the Labor Code of the Russian Federation?

Liability (ML) is the obligation of the person who caused damage to someone to compensate it in accordance with the law.

The amount and procedure for compensation are established by the Labor Code of the Russian Federation.

Financial responsibility arises in the labor sphere.

It is typical for both commercial and budgetary institutions.

In this article we will consider in detail the list of financially responsible persons under the labor code.

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Conditions of attack

Who is financially responsible?

Most often it is based on an offense.

Therefore, an explanation is taken from the guilty person - just as in case of disciplinary violations.

In order to bring a person to financial responsibility and force him to compensate for the damage, the elements of the offense must be present.

Without a violation, prosecution is impossible.

For matrimonial liability to occur, 4 mandatory conditions must be met :

the injured party suffered real (actual) damage;
the person who caused the damage is really guilty;
there is a causal connection between the culpable act and the damage caused;
There are no circumstances that could exempt the culprit from compensation for damage.

Classification

There are several classifications based on various criteria. These criteria allow you to understand the structure of the concept and determine its key features.

According to the subject, financial liability is divided into:

employee responsibility;
employer's responsibility.

Based on the number of culprits, it can be:

individual (1 culprit);
collective (2 or more culprits).

Depending on the amount of compensation, there are:

complete (the culprit compensates for all direct actual damage);
limited (the culprit compensates for damage in an amount no more than his average earnings).

The reimbursement method is also divided into 3 types:

voluntary (based on a written agreement of the parties);
based on the order of the employer;
based on a court decision.

What laws?

There are several legislative acts that in one way or another affect the issue of financial liability:

Article 21 of the Labor Code of the Russian Federation. It obliges workers to take care of the property of their employers.
Articles 22,212 and 239 of the Labor Code of the Russian Federation. They oblige the employer to create a safe environment for workers and provide them with tools and information on how to carry out work correctly.
Article 232 of the Labor Code of the Russian Federation. It specifies the mandatory nature of compensation for damage caused. The article places this responsibility on both the employee and the employer. The article also specifies that the reimbursement process must take place in accordance with the law.

Labor Code of the Russian Federation, Article 232. Obligation of a party to an employment contract to compensate for damage caused by it to the other party to this contract

The party to the employment contract (employer or employee) who caused damage to the other party shall compensate for it in accordance with this Code and other federal laws.
An employment contract or written agreements attached to it may specify the financial liability of the parties to this contract. At the same time, the contractual liability of the employer to the employee cannot be lower, and the employee to the employer – higher, than is provided for by this Code or other federal laws.
Termination of an employment contract after damage has been caused does not entail the release of the party to this contract from financial liability provided for by this Code or other federal laws.

Mentions of financial liability are also found in other legislative acts of the Russian Federation, but it is those listed above that are considered the main ones .

It is impossible to single out the most important one among them, because in order to resolve the situation with the damage caused, one must be guided by each of the legislative acts.

Positions can be different, ranging from seller, cashier and driver, military personnel and supply manager.

Form of a liability agreement

An agreement on liability is concluded in writing, and it must be an agreement, and not some kind of internal document such as an order. One copy of the contract is given to the employee, the second is kept by the employer. It is advisable to obtain the employee’s signature on the employer’s copy confirming receipt of his copy (similar to the procedure when concluding an employment contract).

You can conclude an agreement on financial responsibility immediately upon signing the employment contract, or later, when the employer’s property is transferred to the employee under the acceptance certificate. Can an employee refuse to sign such an agreement? The Plenum of the Supreme Court believes that the employee does not have the right to this (resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

If the main labor function is related to the safety of material assets, and the employee knew this when concluding the employment contract, then refusal to sign an agreement on financial responsibility means failure to fulfill his labor duties. This situation will entail the transfer of the employee to another job or his dismissal.

An agreement on liability can be not only individual, i.e. concluded with an individual employee, but also collectively, when it is impossible to differentiate the responsibility of each employee for causing damage (Article 245 of the Labor Code of the Russian Federation). For example, such an agreement can be concluded with the store team.

Resolution of the Ministry of Labor of Russia dated December 31, 2002 No. 85, in addition to the List of works and positions, includes samples of standard agreements on financial liability (individual and collective). Standard samples can be supplemented or changed, but they should not worsen the employee’s position, i.e. impose on him responsibility that is not provided for by labor legislation.

When dismissing or transferring a financially responsible employee to another job, it is necessary to draw up a document in the personnel order stating that there are no material claims against him.

List of positions of financially responsible persons according to the Labor Code of the Russian Federation

Articles of the Labor Code of the Russian Federation and Resolution No. 85 of the Ministry of Labor of the Russian Federation determine the lists of positions and works that may be involved in financial liability.

Let's consider the list of positions according to the Labor Code of the Russian Federation, which includes MOL:

Cashiers, controllers of any enterprises. Regardless of the field of activity, these people are always financially responsible.
The list of MO positions includes employees who work in areas related to deposits, securities trading or finance.
Workers who work in the expert field.
Methodologists, laboratory assistants, library staff.
Managers of pawnshops, lockers, warehouses and other places where someone's property is stored.
Managers in management positions - storekeepers, wardrobe maids, commandants, forwarders, head nurses.
The list of positions subject to MO includes managers from the fields of trade, food, service, and hotel business.
Heads of pharmaceutical companies and pharmacies.

List of works during which MO may occur:

sale of various goods or services;
payment and acceptance of payments of any type and form;
expert works;
work related to deposits, securities or finance turnover;
repair work on cars, household items, jewelry, nuclear resources;
work to ensure the safety of someone's property.

We have figured out who is the financially responsible person in the enterprise, let’s move on to the next paragraph of our article.

When does collective financial responsibility arise?

Vladimir Alistarkhov, legal expert

Collective financial liability involves compensation for damage received by the employer as a result of improper performance of labor duties by employees, at the expense of members of the entire team on the basis of a collective agreement concluded between the employer and employees.

From the employer’s point of view, it can be recognized that an agreement with employees on collective financial responsibility is almost the most beneficial for the company due to the principle used “one creates, everyone will respond.”

To what extent a collective agreement on financial responsibility is beneficial to each of the workers is a rather ambiguous question.

On the one hand, when employees work together and feel the shoulder of their comrades, the work should be smooth, but on the other hand, certain friction is inevitable in the team when the question arises of who is to blame and what to do if damage is caused to the employer.

Often, employees do not want to get involved in collective responsibility, preferring to refuse to sign a collective agreement or change employers.

In connection with the above, it seems appropriate to analyze the following questions:

Under what circumstances can collective liability arise?
The procedure for determining the amount of damage to the employer in case of collective financial liability?
Can an employee refuse to sign a collective liability agreement?
Are there any consequences for an employee if he refuses to sign an agreement on collective financial responsibility?

To answer the questions posed, we will use the current legislation of the Russian Federation and relevant judicial practice.

Circumstances under which collective liability arises.

According to Art. 245 of the Labor Code of the Russian Federation, if it is impossible to differentiate the responsibility of workers when performing work together, the employer has the right to introduce collective (team) financial liability for damage.

Collective financial liability for damage caused is introduced by signing a collective agreement between the employer and employees.

It should be noted that a collective agreement on financial liability cannot be concluded with a person who is under eighteen years of age, as follows from the ruling of November 19, 2009 No. 18-B09-72 of the Supreme Court of the Russian Federation.

The standard form of an agreement on full collective material liability was approved by Resolution No. 823 of the Government of the Russian Federation dated November 14, 2002 “On the procedure for approving positions and work replaced or performed by employees with whom the employer can enter into written agreements on full individual or collective (team) material liability, as well as standard forms of agreements on full financial liability.”

An agreement on collective financial liability can be concluded taking into account the List of works, during the performance of which full collective (team) financial liability can be introduced for the shortage of property entrusted to employees, which is approved by Resolution of the Ministry of Labor and Social Development of the Russian Federation of December 31, 2002 No. 85.

If employees, on the basis of a collective agreement on financial liability, agree to compensate the employer for damage, then the amount of damage is established by agreement of the parties. Otherwise, the amount of damage is determined in court. In this case, the court establishes the degree of guilt of each employee, and the employee, in turn, has the right to prove his innocence in court. According to clause 1 of Appendix No. 4 of Resolution No. 85 of the Ministry of Labor of Russia dated December 31, 2002, in addition to the collective agreement on financial liability, the employer is obliged to issue an appropriate order establishing collective financial liability.

Arbitrage practice

The Constitutional Court of the Russian Federation, in its ruling dated June 24, 2008 No. 349-O-O, indicated the legality of concluding a collective agreement on financial liability if employees jointly perform certain types of work related to storage, processing, sale (vacation), transportation, application or other use of the values transferred to them, when it is impossible to differentiate the responsibility of each employee for causing damage.

It also follows from this Definition that employees who have entered into a collective agreement on financial responsibility with the employer must ensure the safety of the property entrusted to them.

Determination of the amount of material damage caused to the employer and the procedure for its repayment or collection.

The amount of material damage is determined in accordance with Art. 246 of the Labor Code of the Russian Federation. According to this article, if damage is caused to the employer or his property, the amount of damage is determined by the actual losses of the employer, taking into account market prices on the day the damage was caused and the value of the property according to accounting data.

According to Determination No. 18-B09-72 of the Supreme Court of the Russian Federation dated November 19, 2009, the employee is obliged to compensate the employer for actual damage, but is not obliged to compensate the employer for lost profits.

Real damage means a decrease in the employer’s property or a deterioration in its condition, including the property of third parties that is at the disposal of the employer.

To determine the damage caused within the framework of the collective agreement on financial liability, the employer must conduct an inventory, the procedure and timing of which are established by Art. 11 of the Federal Law of December 6, 2011 N 402-FZ “On Accounting”.

Based on the results of the inventory, the actual damage caused to the employer and his property is established, which can be repaid by employees in the manner established by the collective agreement on material liability.

If employees refuse to pay for the damage caused to the employer, or if disputes arise, the employer has the right to file a claim in court to recover the damage incurred, taking into account the requirements of the concluded agreement on collective liability.

According to clause 14 of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52 “On the application by courts of legislation regulating the financial liability of employees for damage caused to the employer,” when considering claims of employers, the courts need to check whether an agreement on collective liability has been concluded with taking into account the rules provided for by the legislation of the Russian Federation.

If necessary, the court has the right to summon all members of the team to the court hearing, even those against whom the claim was not brought, which is necessary to correctly determine the responsibility of each employee.

When determining the share of responsibility of each employee, the court must establish the amount of damage to be paid by each employee, taking into account the degree of guilt of each employee, the amount of the official salary of each person, etc.

Release of the employee from collective financial liability.

According to. 3 tbsp. 245 of the Labor Code of the Russian Federation, an employee who has signed an agreement on collective financial responsibility, if there are appropriate grounds, may be released by the court from paying off damages to the employer, but the obligation to prove his innocence in causing damage to the employer or his property lies entirely with the employee himself.

The employee’s obligation to prove his innocence was confirmed in its Decision of June 24, 2008 No. 349-О-О by the Constitutional Court of the Russian Federation “On the refusal to accept for consideration the complaint of citizen B.E.V. for violation of her constitutional rights by part three of Article 245 of the Labor Code of the Russian Federation.”

In particular, the applicant in his complaint requests that Part 3 of Art. 245 of the Labor Code of the Russian Federation, since the norm establishes a presumption of guilt, which does not correspond to Part 1 of Art. 21, part 1 art. 23 and Art. 49 of the Constitution of the Russian Federation.

In turn, the Constitutional Court of the Russian Federation noted in its Determination that Part 3 of this article cannot be considered as violating the rights of an employee, since when determining the degree of guilt of a member of a team (team), it allows taking into account specific circumstances.

Thus, if the employee manages to prove his innocence in court, the court will make a corresponding decision in favor of the employee, which will free the employee from the obligation to repay the damage to the employer.

An individual entrepreneur filed a claim with the employees in the Abakan City Court to recover the shortfall from them on the basis of an agreement on collective liability. In turn, the employees filed a counterclaim to invalidate the agreement on full financial responsibility, citing the fact that they signed the agreement on collective financial responsibility in error. On April 19, 2012, the Abakan City Court made a decision in the case, which refused to satisfy the individual entrepreneur’s claims, and also refused to satisfy the defendants’ counterclaim. Refusing to satisfy the plaintiff's demands, the court indicated that the employer did not create appropriate conditions for storing the material assets entrusted to the defendants. An individual entrepreneur, disagreeing with the court's decision, filed an appeal, which was accepted for consideration by the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Khakassia. In its ruling dated July 24, 2012, the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Khakassia, with reference to the explanations of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52, indicated that when considering such cases, the employer must prove: - illegality of behavior workers; — a causal relationship between the behavior of workers and the resulting damage; — the presence of direct damage to the employer and compliance with the rules for concluding an agreement on collective liability. As follows from the case materials, and this was also established by the Judicial Panel, the employer did not create appropriate conditions for storing the material assets entrusted to the defendants. In addition, according to the court, the plaintiff did not present evidence at the court hearing indicating the indisputability of the defendants’ guilt. Thus, the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Khakassia upheld the decision of the Abakan City Court dated April 19, 2012, and the plaintiff’s appeal was not satisfied.

An employee’s refusal to sign a collective agreement on financial liability and possible consequences. In practice, including judicial practice, there are cases when employees refuse to sign an agreement on collective financial responsibility. In such circumstances, you need to know the following.

According to Art. 232 of the Labor Code of the Russian Federation, the financial responsibility of an employee is formalized by an additional agreement to the employment contract. Based on Art. 245 of the Labor Code, when it comes to joint performance of work, financial responsibility can only be formalized by a collective agreement. Responsibility lies with all employees (group of persons) who perform the work.

When concluding an agreement on collective financial liability, the employer is obliged to proceed from changes in organizational or technological working conditions (clause 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”).

The employer is obliged to warn employees about these changes in accordance with Art. 74 of the Labor Code of the Russian Federation in writing. If the employees do not agree to the new working conditions, the employer is obliged to offer the employees all available other vacancies. If there is no other job for the employees, or the employees refuse the offered vacancies, the employment contract with the employee can be terminated on the basis of clause 7, part 1, art. 77 of the Labor Code of the Russian Federation.

The possibility of terminating an employment contract on the above grounds is confirmed by the position set forth in Resolution No. 2 of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.”

In particular, it follows from the resolution that when considering issues of reinstatement of workers at work in connection with dismissal in accordance with clause 7 of part 1 of art. 77 of the Labor Code of the Russian Federation, the employer is obliged to prove that the change in the terms of the employment contract was a consequence of changes in organizational or technological working conditions, and all this did not worsen the situation of the employees.

In the absence of appropriate evidence from the employer, dismissal of employees under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation cannot be considered legal.

In other words, if the employer has truly valid reasons for changing the terms of the employment contract, then the employee should be afraid of being dismissed under Art. 77 of the Labor Code of the Russian Federation and not be reinstated at work through the court.

Conclusions and recommendations based on the material presented.

Thus, the circumstances under which collective financial liability can be introduced at an enterprise are provided for in Art. 245 of the Labor Code of the Russian Federation.

The very possibility of introducing collective liability is confirmed by the relevant judicial practice cited above. The employer can be recommended to take the procedure for concluding an agreement on collective financial responsibility very seriously due to the fact that if employees refuse to sign a collective agreement, it is necessary to predict the possible negative consequences of this for the organization, including those related to the prospect of legal disputes in the future.

An employee who refuses to sign an agreement on collective financial responsibility should think carefully before doing this, since they can not only offer him another job, but also terminate the contract with him on the basis of clause 7, part 1, art. 77 of the Labor Code of the Russian Federation.

At the same time, if an employee is confident in his rightness and professionalism, he must always remember that it is possible to prove his innocence in court.

In general, there is every reason to state that the practice of concluding agreements on collective liability between the employer and employees should be considered positive due to sufficient regulatory regulation of the relevant procedures and taking into account the economic feasibility for the employer.

Filina Anna, senior legal consultant at GSS EL - LAW LLC:

In accordance with paragraph 4 of the Resolution of the Plenum of the Supreme Court dated November 16, 2006 No. 52 (as amended on September 28, 2010) “On the application by courts of legislation regulating the financial liability of employees for damage caused to the employer,” the employer is required to prove the following circumstances: - absence of circumstances excluding the employee’s financial liability (Article 239 of the Labor Code of the Russian Federation); — illegality of the behavior (action or inaction) of the harm-doer; — the employee’s guilt in causing harm; — a causal connection between the employee’s behavior and the resulting damage; — the presence of direct actual damage; — the amount of damage caused; — compliance with the rules for concluding an agreement on full financial liability.

Clause 8 of the Resolution of the Plenum of the Supreme Court dated November 16, 2006 No. 52 indicates that when considering a case for compensation for direct actual damage caused to the employer in full, the employer is obliged to provide evidence indicating that in accordance with the Labor Code of the Russian Federation or other federal laws an employee may be held liable for the full amount of damage caused and has reached the age of eighteen at the time of its infliction, with the exception of cases of intentional infliction of damage or infliction of damage while under the influence of alcohol, drugs or other toxic substances, or if the damage was caused as a result of a crime or administrative offense when an employee can be brought to full financial liability before reaching the age of eighteen (Article 242 of the Labor Code of the Russian Federation).

It is necessary to pay attention to the second paragraph of paragraph 4 of the above resolution, which states that if the employer proves the legality of concluding an agreement with an employee on full financial liability and the presence of a shortage for this employee, the latter is obliged to prove the absence of his guilt in causing damage.

In accordance with paragraph 5 of the above resolution, an employee cannot be held financially liable if the damage occurred as a result of force majeure, normal economic risk, extreme necessity or necessary defense, or the employer’s failure to fulfill the obligation to provide adequate conditions for storing property entrusted to the employee (Article 239 Labor Code of the Russian Federation).

The Armed Forces of the Russian Federation determined that “the actions of an employee that correspond to modern knowledge and experience can be classified as normal economic risk, when the set goal could not be achieved otherwise, the employee properly fulfilled the job duties assigned to him, showed a certain degree of care and prudence, and took measures to prevent damage, and the object of risk was material assets, and not the life and health of people.”

The Supreme Court of the Russian Federation also emphasized that the employer’s failure to fulfill the obligation to provide adequate conditions for storing property entrusted to the employee may serve as grounds for refusal to satisfy the employer’s demands if this was the cause of the damage.

Thus, the possibility of recovering damages caused to the employer from employees in full in court depends on the employer’s ability to prove the following circumstances :

the presence of labor relations with employees; compliance with the rules for concluding an agreement on collective (team) full financial responsibility;
creating conditions for the safety of property entrusted to employees;
absence of circumstances excluding the employee’s financial liability (Article 239 of the Labor Code of the Russian Federation);
the presence of direct actual damage;
the extent and cause of damage caused;
illegality of behavior (actions or inactions) of employees;
the causal relationship between the employee’s behavior and the damage that occurred;
compliance with the procedure for bringing to financial responsibility.

As a rule, questions about holding employees financially liable arise after an inventory has been taken. The procedure for conducting an inventory is determined by Order of the Ministry of Finance of the Russian Federation dated June 13, 1995 N 49 (as amended on November 8, 2010) “On approval of the Methodological Guidelines for the Inventory of Property and Financial Liabilities” (hereinafter referred to as the Guidelines). Therefore, when proving the existence of a causal relationship between the employee’s behavior and the resulting damage, special attention must be paid to proving compliance with the inventory procedure.

For example, according to clause 2.8. Methodological guidelines for inventory of property and financial obligations, verification of the actual availability of property is carried out with the mandatory participation of financially responsible persons. If the inventory documents (reconciliation sheet, etc.) do not contain records of employees held liable, then such violations of the Methodological Instructions for Inventorying Property and Financial Obligations, approved by the Order of the Ministry of Finance of Russia, may cause the court to refuse to satisfy the employer’s claim for full recovery. financial liability from employees (see the cassation ruling of the Perm Regional Court dated December 21, 2011 in case No. 33-12915, the ruling of the Leningrad Regional Court dated February 16, 2011 N 33-779/2011).

It is also advisable to pay attention to judicial practice regarding the execution and content of inspection reports based on the results of inventory and audit. Thus, in the decision of the Ordzhonikidze District Court of the city of Ufa of the Republic of Bashkortostan dated January 21, 2011 in case No. 2-80/2011 it is stated: “The report on the results of the audit of material resources must indicate the reasons for the identified shortage and the causal relationship between the actions of the defendants and the damage that occurred, it was established who and under what circumstances, besides the defendants, carried out the sale of goods, what documents were drawn up for the transfer of inventory items. When imposing financial liability on an employee, there must be a direct causal connection between the employee’s actions or inaction, his fault and the damage incurred by the employer; the procedure for conducting an inventory and recording its results is observed, complying with the requirements of current legislation, including the Federal Law “On Accounting” dated DD.MM.YYYY No. 129-FZ, Order of the Ministry of Finance of Russia dated DD.MM.YYYY N 49 “On approval of Methodological Instructions on the inventory of property and financial obligations”, according to the Order of the Ministry of Finance of the Russian Federation dated DD.MM.YYYY No., documents must be submitted indicating that at the time of the audit the store was closed and sealed, that the release and acceptance of goods was not carried out.”

In budgetary institutions

Who can be a financially responsible person in a budgetary institution? Such enterprises, like commercial organizations, imply the presence of financially responsible persons. An agreement on full financial responsibility is concluded with them .

It is obvious that budgetary institutions do not have some of the positions from the above list (for example, workers in the depository sector, areas with the circulation of money and securities). Therefore, when talking about financial responsibility in budgetary institutions, we must mean cashiers, storekeepers, wardrobe maids, building superintendents, and warehouse managers.

An employee leaves the company or changes position

It is clear that termination of an agreement on full financial liability upon dismissal is the most common case of termination of the agreement. In general, the mat liability agreement provides for a condition that the validity period of the agreement extends to the entire time of work with the employer’s property entrusted to the employee. Therefore, as soon as the property is transferred to the organization, the mat liability will cease. This is the procedure for terminating a contract of full financial liability.

Current legislation limits the possibility of applying swearing liability. Therefore, an agreement on full financial liability cannot be concluded with all employees of the organization. We list the categories of personnel with whom such an agreement can be signed:

employees directly servicing goods and materials (money) belonging to the employer;
the employee's position allows for the conclusion of an agreement on mat responsibility (the List of positions and works was approved by Resolution of the Ministry of Labor of Russia dated December 31, 2002 No. 85);
employees over 18 years of age.

Another popular case of termination of a full financial liability agreement (see sample below) is the transfer of an employee to a position. For example, the cashier of an enterprise is transferred to a vacant position in the accounting department.

Especially for our readers, our specialists have prepared an example of drawing up a liability agreement, which can be downloaded for free on the website.

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Conclusion of a liability agreement