Compensation for material damage by an employee to an employer

Every employee of an enterprise must understand that in the event of damage, if the labor obligations assigned to him were violated, he is obliged to compensate for it. Financial compensation is awarded regardless of whether the employee was brought to another responsibility - criminal liability, administrative or disciplinary punishment was applied.
Even if the employee was not paid remuneration or a bonus was not awarded, he is obliged to compensate for the damage caused by his actions. If an employee intentionally caused damage , that is, damaged or destroyed property or other valuables, was the culprit of loss, shortage, or plundered property or funds, he must compensate for the damage in accordance with the value that was valid at the time of the damage in the given area.
The amount of damage is determined by the act of financial losses, taking as a basis the book value or accounting data.

Conditions for bringing an employee to financial liability

In Art. 233 of the Labor Code of the Russian Federation and clause No. 52 indicate that the employee’s liability for damage caused to the employer arises when five conditions apply simultaneously.

Direct actual damage to the employer's property

Financial liability extends to losses that can be accurately calculated. In this case, the penalty is not imposed on lost profits.

According to Art. 238 of the Labor Code of the Russian Federation, direct actual damage is subject to compensation . It is expressed in:

A real decrease in the volume or deterioration in the condition of the employer’s available property (including those transferred to him by third parties under personal responsibility).
Expenses and excess payments made by the employer for the purchase and restoration of property or for compensation of damage caused by the employee to third parties.

Common types of actual damages are:

lack of funds or property assets;
payments for forced downtime or absenteeism;
damage to materials, equipment and costs for their repair;
the amount of the fine paid by the employer as a result of the employee’s guilty actions.

Damage caused by the employee to third parties is all payments made by the employer to compensate for the damage. The employee's liability is limited to these amounts.

Evidence of the fact of damage is the act of its discovery, the employee’s explanatory note, inventory materials, and the damaged property itself.

Illegality of action

It is expressed in the employee’s failure to fulfill his official duties . These include:

violation of internal labor regulations;
non-compliance with the terms of the employment contract;
ignoring the provisions of the job description.

The cause-and-effect relationship between the employee’s actions and the occurrence of damage

The employer must prove that it suffered damage directly due to the employee’s unlawful actions and not for other reasons.

Example: the commission, during its own investigation, found that the warehouseman did not check whether the alarm system in the warehouse was connected. There are 2 possible scenarios for the situation:

If the theft occurred while the alarm was not activated, a cause-and-effect relationship is established.
If the alarm was turned on, but a crime was committed anyway, a cause-and-effect relationship is not confirmed.

The employee's fault for causing the damage

It can be expressed in the form of intent or negligence (negligence, frivolity).

This is also important to know:
What does it mean “other penalties of a property nature not to the budgets of the Russian Federation”? Examples of penalties

These concepts are deciphered in paragraph 3 of Art. 243 Labor Code of the Russian Federation.

Signs of intent to cause damage are:

the employee’s understanding that he is committing illegal actions;
foreseeing the possibility of causing property damage;
conscious assumption of the consequences that have occurred or the desire to provoke them.

Negligence is established if the employee understood the illegality of his actions, but:

expected to prevent the consequences, although he foresaw the risk of their occurrence;
did not foresee the risk of consequences, having such an opportunity and being obliged to do so.

Absence of circumstances excluding the employee’s liability

According to Art. 239 of the Labor Code of the Russian Federation, an employee is exempt from compensation for damage if he caused it due to one of the following factors (and was able to confirm this with evidence):

Force Majeure;
normal business risk;
extreme necessity or necessary self-defense;
failure by the employer to provide adequate conditions for storing property entrusted to the employee.

If at least one of the five conditions is not met, the employer will not be able to recover a penny in compensation for the harm caused to him.

Recovery of damages from an employee: employer mistakes

Labor legislation clearly regulates the rules for holding workers financially liable. However, judicial practice shows that despite this, employers make a lot of mistakes when they try to recover damages caused to them from an employee. Often the main goal is to recover the costs incurred by the organization because of the employee. At the same time, neglect of legal requirements leads to loss of time, litigation and new expenses. Having summarized judicial practice, we have identified the most common mistakes that employers make when assigning financial responsibility to an employee. Let’s talk about them, because it’s better to learn from the mistakes of others.

Issues related to the financial liability of employees are regulated by Art. 238-250 of the Labor Code of the Russian Federation (Chapter 39 of the Labor Code of the Russian Federation).

In accordance with Art. 238 of the Labor Code of the Russian Federation, all employees who are guilty of causing direct actual damage to the employer bear financial responsibility, that is, they compensate for the damage. However, the limits of such liability are not the same for all employees and are determined taking into account the nature and scope of their work responsibilities, differences in official competence, rights granted, etc.

Full liability by exception

As a general rule, the financial liability of an employee who causes damage to the employer is limited to the average monthly salary (Article 241 of the Labor Code of the Russian Federation). It is called limited.

Financial liability for the full amount of damage caused is assigned to the employee only in the following cases:

1) when full financial responsibility is assigned to the employee by law;

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

3) intentional infliction of damage;

4) causing damage while under the influence of alcohol, drugs or other toxic substances;

5) damage caused as a result of the employee’s criminal actions established by a court verdict;

6) damage caused as a result of an administrative violation, if established by the relevant government body;

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

causing damage not while the employee was performing his job duties.

In addition, financial liability in full can be established by an employment contract concluded with the deputy heads of the organization, the chief accountant (Article 243 of the Labor Code of the Russian Federation).

It would seem that labor legislation clearly defines the list of cases when an employee is obliged to compensate the employer for damage in full. Nevertheless, the most common mistake is to impose not limited, but full financial liability.

example 1

By order of the employer, P. was hired as a delivery driver in the transport department of the company. On the Yekaterinburg-Kurgan highway on March 25, 2010, the IZH-27175-036 car, owned by the CJSC and driven by P., broke down and received mechanical damage.

The company repaired the car at its own expense. The repair cost 23,304 rubles. 66 kopecks The company went to court with a demand to recover the full cost of repairs (it exceeded the employee’s monthly salary).

From the report of the investigation into the circumstances of the vehicle failure, it follows that driver P is to blame for causing the damage. He did not take timely measures to eliminate the malfunction, did not report it to the management of the company, and independently made a decision on further operation of the vehicle.

The case materials established that on March 25, 2010, forwarding driver P. was sent on a business trip to Yekaterinburg to pick up cargo, accompanied by engineer N. On the way back, a creaking sound began to be heard from the rear axle of the car. The driver stopped, put the car on a jack, removed the right rear wheel and tried to disconnect the brake drum. The attempt was unsuccessful, and P. decided to move on.

In accordance with the job description, the forwarding driver immediately reports to management about all incidents, thefts, etc. The forwarding driver reports to the head of the transport department.

P. did not notify the garage manager or the management of the joint-stock company about the serious breakdown of the car and independently made the decision to continue driving.

This circumstance, in the opinion of the company, indicates the employee’s guilt in causing the damage. However, by a court decision from P. in favor of the CJSC, an average monthly salary in the amount of 9,523 rubles was recovered as partial repayment of damage. 42 kopecks

The court indicated that the employee must bear financial liability within the limits of his average monthly earnings, since there are no grounds for holding him liable for the full amount of damage caused.

(From a review of the judicial practice of the Kurgan Regional Court for Civil Cases for the 2nd half of 2010)

Conclusion: it is possible to bring full financial liability only in one of the cases listed in Art. 243 Labor Code of the Russian Federation.

A full liability agreement does not guarantee anything.

Another common mistake made by an employer is to demand full compensation for damages on the basis of an agreement on full financial liability.

Indeed, one of the grounds for recovery of damages in full is clause 2 of Art. 243 of the Labor Code of the Russian Federation, that is, the existence of an agreement on full financial liability. Many employers believe that the existence of such an agreement guarantees recovery of damages in full, and forget that the court will reject such a claim if it turns out that there were no legal grounds for concluding the agreement.

Such an agreement can only be concluded with an employee who occupies a position named in Resolution of the Ministry of Labor of Russia dated December 31, 2002 No. 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 liability, as well as standard forms of agreements on full liability."

According to Art. 244 of the Labor Code of the Russian Federation, written agreements on full individual or collective (team) financial liability (clause 2, part 1, article 243 of the Labor Code of the Russian Federation) for the shortage of property entrusted to employees can be concluded with employees who have reached 18 years of age and directly service or use monetary and commodity assets or other property.

Thus, if there is no position in the said resolution or, in accordance with the job description, the employee does not directly service valuables and property, the court recognizes the conclusion of an agreement on full financial liability as unfounded.

example 2

By decision of the Chapaevsky City Court of the Samara Region dated June 18, 2009, the organization refused to satisfy the claim against the employee for compensation for damage caused during the performance of labor duties. The court found that the employee worked first as a leading specialist, and then as a site manager. Despite the fact that an agreement was concluded between the employee and the employer on full financial responsibility for the original position, in court the employer did not prove the employee’s functions in preserving material assets. There were no job descriptions for the leading specialist and site manager in the organization at all.

example 3

The employer filed a lawsuit against the employee to recover the amount of damage. In support of his claims, the plaintiff referred to the fact that the employee is a financially responsible person.

The courts of first and cassation instances upheld the claim. But the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation canceled the court rulings in the case and sent the case for a new trial to the court of first instance on the following grounds.

The employee held the position of specialist in the production department, and additionally performed the duties of driving a car owned by the organization. However, in the List of positions and work replaced or performed by employees with whom the employer can enter into written agreements on full individual financial liability for shortages of entrusted property, approved by Resolution of the Ministry of Labor of Russia dated December 31, 2002 No. 85, the position held by the employee, as well as the work he performs is not included.

These circumstances indicate that an agreement on full financial liability could not, in principle, be concluded with the employee. Such an agreement does not serve as a basis for holding the employee to full financial liability. The organization's demands for compensation for damage in full, exceeding the employee's average monthly earnings, contradict the requirements of the Labor Code of the Russian Federation.

Lists of works and categories of workers with whom the said agreement can be concluded, as well as standard forms of these agreements, are approved in the manner established by the Government of the Russian Federation. Thus, labor legislation provides for specific requirements, upon fulfillment of which the employer has the right to conclude a written agreement with an individual employee on full financial responsibility, a list of positions and works during which this agreement can be executed, mutual rights and obligations of the employee and the employer to ensure the safety of material valuables transferred for reporting.

(Definition in case No. 18-B09-72, from a review of the practice of the Supreme Court of the Russian Federation for the fourth quarter of 2009)

Conclusion: violation by the employer of the requirements of the law on the procedure and conditions for concluding and executing an agreement on full individual financial liability is the basis for releasing the employee from the obligation to compensate for damage to the employer’s property caused through his fault in the full amount exceeding the employee’s average monthly earnings.

There is an offense, but no damage

Sometimes an employer, without taking into account whether real damage has been caused, tries to hold financially liable an employee who has violated the rules for performing labor functions or committed another offense related to the performance of official duties.

example 4

Satisfying the LLC's demands, the court proceeded from the fact that L., an employee of the company with whom an agreement on full financial liability was concluded, caused damage to the LLC as a result of issuing funds from the cash register in violation of the rules for conducting cash transactions established by the Federal Law “On Accounting” ", and the Procedure for conducting cash transactions in the Russian Federation, approved by the decision of the Board of Directors of the Central Bank of the Russian Federation dated September 22, 1993 No. 40. At the same time, the court did not take into account Art. 238, 242 and 243 of the Labor Code of the Russian Federation. Based on these standards, damage caused to the employer is compensated by the employee in full if the presence of direct actual damage is proven.

Meanwhile, as follows from the explanations of the representatives of the LLC, the fact of causing direct actual damage was not established, since none of the persons to whom funds were issued according to statements and cash receipts orders applied to the company with a demand for payment of the amounts due to them.

The LLC's claim for damages was based only on the fact that the employee violated the rules for conducting cash transactions, according to which the issuance of money from the cash register, which is not confirmed by the recipient's receipt in the cash receipt order or other document replacing it, is not accepted as justification, is considered a deficiency and is recovered from the cashier.

The cassation instance did not support the position of the court of first instance and refused to satisfy the claim for financial liability.

(Determination of the Perm Regional Court dated 08/03/2010 No. 33-5964)

Conclusion: the basis for imposing financial liability on an employee is the establishment of the fact of direct actual damage caused through his fault.

Civil liability is not applicable in labor relations

The employer often includes in the claim claims based on the norms of the Civil Code of the Russian Federation, for example, along with the requirement to compensate for damage, the employer charges the employee with interest for the use of other people's funds or lost income (lost profits).

Here we must remember that it is possible to simultaneously apply the norms of labor and civil law to the relationship between an employer and an employee only in cases specified in the law. So, in part 2 of Art. 277 of the Labor Code of the Russian Federation establishes that in cases provided for by federal laws, the head of an organization compensates the organization for losses caused by his guilty actions. In this case, losses are calculated in accordance with the norms established by civil law. In all other cases, it is unacceptable to apply civil law norms to labor relations. According to Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for direct actual damage caused to him. Lost income (lost profits) is not recovered from the employee.

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

example 5

An individual entrepreneur hired K. as a legal consultant with a salary of 5,000 rubles. The employee began performing her duties. She received 45,000 rubles from the cash register. according to a cash receipt order for concluding an agreement with JSC Russian Railways for the supply of cars to the access railway tracks used by the plaintiff for business activities. K. did not account for the funds received under a one-time document, and did not provide evidence of spending the funds for their intended purpose.

The employer, an individual entrepreneur, went to court with a demand to recover damages and interest from the employee for the use of other people's money.

By the decision of the district court, the individual entrepreneur's claims were partially satisfied. 45,000 rubles were recovered from K., interest in the amount of 800 rubles, refund of state duty 1,474 rubles. However, the cassation court overturned the decision regarding the recovery of interest from K. in the amount of 800 rubles. and state fees.

The regional court concluded that when resolving the dispute over compensation for damage, the court of first instance came to a reasonable conclusion to recover 45,000 rubles from the employee, and was correctly guided by the provisions of Art. 238 and 243 of the Labor Code of the Russian Federation, regulating legal relations regarding compensation for damage caused by an employee. However, when collecting interest for the use of other people's funds in accordance with Art. 395 of the Civil Code of the Russian Federation in the amount of 800 rubles. the rules of substantive law were applied incorrectly. The court did not take into account that labor relations are not regulated by the norms of the Civil Code of the Russian Federation, and the applicable provisions of the Labor Code of the Russian Federation do not provide for the recovery of the specified interest from the employee. According to Art. 238 of the Labor Code of the Russian Federation, an employee is obliged to compensate the employer only for direct actual damage caused to him.

(Determination of the Perm Regional Court in case No. 33-1708/2010)

Sometimes confusion in the application of the norms of the Labor Code of the Russian Federation and the Civil Code of the Russian Federation is associated with the employee causing harm not to the employer’s property, but to third parties. The fact is that, having compensated for damage to third parties, the employer has the right to file a recourse claim against the employee, that is, to recover from him the damage that he has already compensated. Damage to third parties in such a situation is compensated according to the rules of civil law. The employer, believing that civil law can be applied when recovering damages from an employee, tries to do this without taking into account the specifics of labor legislation.

The very concept of a recourse claim is a civil law category. Article 1081 of the Civil Code of the Russian Federation provides an employer who has compensated for damage caused by another person (an employee in the performance of official, official or other labor duties, a person driving a vehicle, etc.), the right to claim back (recourse) against this person in the amount of the amount paid compensation, unless another amount is established by law.

In paragraph 15 of the resolution of the Plenum of the Armed Forces 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”, it is explained that damage caused by an employee to third parties should be understood as all amounts paid by the employer to third parties in damages account. It turns out that the norms of the Labor Code on compensation of harm to third parties by the employer for harm caused by the employee correspond with the norms of the Civil Code of the Russian Federation and recourse claims are based on both legislation.

It is important that the norms of the Labor Code of the Russian Federation also apply to recourse claims, that is, damages can be recovered in full from an employee by way of recourse only in cases provided for in Art. 243 Labor Code of the Russian Federation.

example 6

The employer filed a claim against the employee for damages by way of recourse. The court found that the employee, driving a ZIL-431410 car, drove into oncoming traffic. There was a collision with a VAZ-2106 car, the driver of which died from his injuries. The traffic police found the employee guilty of the accident. By a decision of the district court of the Chelyabinsk region, the criminal case initiated against the employee was terminated following the reconciliation of the accused with the representative of the victim. By decision of the city court, compensation for moral damage in the amount of 80,000 rubles was recovered from the employer in favor of the victim.

By the decision of the first and cassation instances, 40,000 rubles were recovered from the employee in favor of the employer, as well as legal costs. But the Supreme Court of the Russian Federation overturned these decisions, indicating that there was no conviction in a criminal case against the employee that had entered into legal force. This means that there are no grounds for holding the employee to full financial liability.

(Determination of the Supreme Court of the Russian Federation dated 01.08.2008 No. 48-B08-7)

Conclusion: damage caused by an employee is compensated only on the basis of labor legislation.

The relationship between administrative and financial responsibility

The employer is mistaken in thinking that by paying a fine for an administrative offense, he can recover the amount of the fine from the employee as part of full financial liability. This is justified by the fact that the organization was brought to administrative responsibility due to the fault of the employee.

example 7

The OJSC filed a lawsuit against its employee for damages in the amount of 40,000 rubles. The requirements are motivated by the fact that for committing an administrative offense the company was held administratively liable in the form of a fine in the amount of 40,000 rubles. The plaintiff believed that the damage in the form of payment of an administrative fine was caused as a result of improper performance of labor duties by the store manager, whose responsibilities include meeting the deadlines for the sale of goods and with whom an agreement on full financial liability was signed.

The court concluded that since the store manager was not brought to administrative liability, it was impossible to recover damages in full. You can only recover damages in the amount of average earnings, that is, apply limited liability.

(Supervisory practice of the Supreme Court of the Republic of Karelia//Bulletin of the Supreme Court of the Republic of Karelia. 2008. No. 1(18))

Conclusion: a financially responsible employee cannot be brought to full financial liability in connection with causing damage in the form of collection from the organization of a fine imposed administratively on the organization.

Establishing the amount of damage and the employee’s guilt

The Labor Code describes in detail the procedure for compensation by an employee for damage caused to the employer. So, in Art. 247 establishes the obligation to establish the exact amount of damage and the cause of its occurrence .

Then the employer will have 1 month to prepare documents and resolve the issue pre-trial. The countdown starts from the day of summing up the inventory or inspection of damaged property.

Calculation of the amount of damage

The amount of damage caused to the employer's property is determined in accordance with the requirements of Art. 246 Labor Code of the Russian Federation :

In the event of loss or damage to property, actual losses are calculated based on its book value, taking into account depreciation. It is impossible to carry out calculations based on market prices, since in this case lost profits will be recovered from the employee, which is unacceptable.
In case of intentional damage, theft, shortage or loss of certain types of property, a special procedure for assessing the amount of damage may be established. For example, for the theft of drugs or psychotropic substances, direct actual damages of a hundredfold are recovered from the employee.

Internal review

The employer is obliged to confirm the amount and circumstances of the damage. To do this, it is necessary to organize an internal audit .

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The methods for carrying it out depend on the characteristics of each case:

Service commission . Required when it is necessary to investigate the circumstances that exempt the employee from compensation for damage. The creation of a service commission is formalized by an order in free form signed by the head. The law does not regulate its composition, so both company employees and outsiders can be involved in the investigation.
Inventory . It is carried out if facts of theft, damage or abuse of property are revealed.

If property damage occurs as a result of an accident due to the fault of an employee, an internal investigation is usually not required.

The circumstances of the case are proven by documents from the traffic police. The amount of damage is confirmed by documents from insurers and repair organizations.

Request for employee explanation

After establishing the amount of damage, the organization must request a written explanation of what happened from the employee .

Refusal to provide it is recorded in an official act, which is drawn up in free form.

Test results

Based on the results of the internal audit, an act or conclusion is drawn up in any form .

The employer is not obliged to independently familiarize the employee with the materials of the internal investigation.

However, according to Art. 247 of the Labor Code of the Russian Federation, he must provide them to his subordinate upon his request . If you disagree with the results of the inspection, the employee can appeal them in court.

The concept of real direct damage and lost profits, their features

Real direct damage is a form of loss when it comes to direct damage to a citizen’s property. Actual damage includes expenses incurred by the creditor to compensate for the damage caused. For example: failures in the delivery of products to a store due to the fault of a transport company caused the loss of products, so the store owner needs to incur certain expenses. Direct damages are used for compensation.
Lost profit is a form of harm associated with the loss of possible income that could have been received if the harm had not occurred. For example: when working as a taxi, a taxi driver receives the main profit from driving, but if the car is damaged through no fault of his own, he loses the opportunity to earn money - this is his lost profit.

The actual damage is assessed in fact and is predominantly of a property nature. To assess the actual damage and lost profits, it is recommended to use the professional services of specialists.

Determining the limits of compensation for damage by an employee

It is possible for the employer to either partially or fully recover material damage from the employee . It depends on what financial responsibility is assigned to him.

Full compensation for damage

Full financial liability occurs only by court decision. There are 2 reasons for this - the corresponding clause in the employment contract or the guilty actions described in Art. 243 Labor Code of the Russian Federation.

These include:

shortage of valuables entrusted to the employee on the basis of a written agreement or received by him under a one-time document;
intentional causing of damage;
acting under the influence of alcohol, drugs or toxic substances;
causing damage as a result of a crime established by a court verdict;
causing damage as a result of an administrative violation established by a government agency;
disclosure of commercial or other secrets protected by law;
causing damage during non-working hours.

If the court determines that the damage was caused as a result of a crime , the employee bears criminal penalties and is held financially liable.

Release under amnesty based on Art. 84 of the Criminal Code of the Russian Federation or termination of the case before the start of the trial in connection with the application of the amnesty act does not eliminate the need for compensation for damage caused. An exception is if the corresponding clause is indicated in the act of pardon.

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Partial Refund

In other cases, damages are recovered from the guilty employee by deductions from wages .

The employer may offer him to voluntarily compensate for the harm caused. In case of refusal, the only recourse is to go to court.

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At the same time, it is important for the employer to know that he does not have the right to expand the list of cases of full financial liability either by a local act or an employment contract.

When determining the average monthly salary, a calculation period is used , which is 12 months from the date of damage, if known, or from the date of its discovery.

General concepts of math. responsibility

According to Wikipedia’s interpretation, financial liability is the employee’s obligation to compensate for damage caused to material assets belonging to the employer. This obligation is enshrined and regulated by Article No. 247 of the Labor Code (LC) of the Russian Federation.

There are 2 types of mat. responsibilities:

partial – in the amount of the employee’s average earnings;
full – covers the entire amount of damage caused, regardless of earnings.

The type of responsibility that is charged to this employee is prescribed in the employment contract when it is concluded, and the presence of material liability can also be recorded in the collective labor agreement. This option implies that responsibility extends to the entire workforce.

Except for situations where this obligation is fixed in an employment contract, complete swearing. liability may arise in a number of cases even without mention of it in the employment agreement with the employee:

upon loss of mat. values accepted by the employee with the execution of a special document, for example, a one-time power of attorney;
in case of deliberate damage or destruction of material assets entrusted to the employee, including as a result of the commission of a crime. Even more information about intentionally causing damage to someone else's property can be found here;
in case of accidental or intentional damage to the employer’s property as a result of the employee’s failure to comply with labor discipline, including due to alcohol or toxic intoxication;
in the event of a leak of information relating to commercial or official secrets (read about liability for disclosure of trade secrets in the article);
in case of damage to property when using it for personal purposes.

There are positions for which the imputation of financial liability is mandatory. For example:

Chief Accountant,
storekeeper,
forwarder,
courier,
salesman,
cashier, etc.

A complete list of positions with the obligatory signing of a document on full financial responsibility has been compiled and approved by the Ministry of Health and Social Development of the Russian Federation.

It is worth noting that the employer can demand compensation only for direct damage caused to material assets, but not for lost profits that he could have received from lost (or damaged) property (Article 238 of the Labor Code of the Russian Federation).

It is worth noting: in the case when the administration of an enterprise intends to hold an employee financially liable, it is necessary to correctly draw up all documents (employment contract, briefings, financial liability agreement, etc.). Otherwise, the employee will win the case, even if he is 100% guilty. Moreover, the labor commission, the law and the court almost always side with the employee, not the employer.

Recovery of damages by agreement of the parties

If the employee agrees to voluntarily compensate the employer for damages, going to court is not required.

The parties can agree on debt repayment terms that will be acceptable to everyone:

determine the amount of deductions;
establish the terms and form of payments (one-time or in installments);
agree on the method of payment (including compensation for damage in kind - by repair or transfer to the employer of other equipment to replace the damaged one).

Making an order

If the employer agrees to release the employee from financial liability, this decision can be formalized by an appropriate order on the basis of Art. 240 of the Labor Code of the Russian Federation or without issuing one.

If debt forgiveness is not formalized, then, according to Art. 393 of the Labor Code of the Russian Federation , a year after the date of discovery of the damage, the amount is simply written off due to the impossibility of collection.

Voluntary Compensation Agreement

If the parties manage to agree, an agreement on voluntary compensation for damage to the employer is signed .

It is drawn up on a blank A4 sheet without any notes.

The document must contain the following information:

name of the organization in whose favor the damage is being recovered;
position and full name of the guilty employee and the employee responsible for the recovery;
statement of the fact of consent to all provisions of the document;
amount of payment, method and terms of collection.

The indemnification agreement is printed in two copies , which are signed by both parties at the same time. The employee and employer each keep one copy.

Maximum amount of deductions from salary

According to Part 1 of Art. 248 of the Labor Code of the Russian Federation, the amount of deductions should not exceed the amount of average monthly earnings. In Part 1 of Art. 138 of the Labor Code of the Russian Federation also states that more than 20% cannot be withheld from a monthly salary.

An employer does not have the right to impose penalties on an employee without his consent. If an employee does not sign an obligation to repay the debt with specific terms and amounts of payments, only a court can authorize deductions from wages.

What to do if an employee quits and refuses to pay the balance of the debt

If an employee leaves the company before full compensation for the damage , liability is not removed from him. If he refuses to make payments, the employer must go to court.

The refusal of the company management to sign a dismissal order until the debt is fully repaid is illegal. If the delay in issuing a work book prevents the employee from finding a job in a new place, he will be able to sue.

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The employer will be obliged to compensate the employee for his average earnings for the entire time until he was given the document.

The employer's right to refuse compensation for damages

According to Art. 240 of the Labor Code of the Russian Federation, the employer, having considered the circumstances of the damage , has the right to completely release the employee from payments or offer him to repay part of the debt.

In practice, such decisions are made taking into account the difficult financial situation of the perpetrator, the presence of small children dependent on him, and the insignificant amount of damage. You can issue a written waiver of claims against an employee before or during the trial.

Types of losses

Loss or damage is material losses incurred by one party due to the fault of the other (individual or legal entity). Damage always has negative consequences for the injured party, therefore the task of civil law is to protect the property rights of the victim within the framework of current legislation. As a form of protecting the rights of citizens, compensation for damage is mentioned in several articles of the Civil Code of the Russian Federation. In modern practice, direct damages are often used.

Damage comes in two forms:

Real damage (property, material damage, real loss of property or income) is harm actually caused, subject to a direct negative impact on the property of the victim.
Lost profit is harm caused to possible future profits from owning property.

Damage may also be presented as:

Property damage is a type of loss that directly affects property. Direct damages apply.
Non-property or moral damage - personal insults, damage to reputation. In this case, we mean infliction of moral or physical suffering.

Compensation is based on the principle of full compensation for the damage caused to the injured party. This applies to lost profits and real damage. The solution to each issue that concerns full compensation for damage requires individual consideration - not in every situation a universal method of solving the problem can be applied.

The main type of compensation for damages as a form of protection of civil rights is the payment of a penalty. Used as a form of civil liability in various cases. The penalty is collected in the form of money - certain interest for the use of other people's finances or for violation of obligations under the contract.

Types of penalties:

A penalty is a type of financial liability that is collected exclusively in accordance with the law. The use of this type requires payment of the full amount in excess of the penalty amount.
Settlement penalty: the part that is not covered by the penalty is paid, subject to the existence of losses. This type is universal and does not require the application of special legal norms.
An alternative penalty is rarely used - this is a variant of the penalty in which the creditor himself chooses the method of payment - either losses or a penalty.
Exclusive penalty: a method of payment that excludes payment of the amount of damages. To protect the rights of the victim, only the penalty itself is paid.

Compulsory recovery of damages

If it is impossible to resolve the issue of compensation amicably, the employer has the right to sue the employee .

The penalty is carried out regardless of whether the employee is subject to disciplinary, administrative or criminal liability.

Grounds for going to court

The grounds for filing a claim in court are:

the employee’s reluctance to voluntarily repay the debt;
impossibility of deductions from wages, since the amount of damage exceeds the employee’s average monthly earnings;
delay in issuing an order to withhold the amount of damage from wages (period - 1 month from the date of recording the results of the internal audit);
the employee’s refusal to continue paying the debt after leaving the company.

Statute of limitations

Bringing an employee to financial liability through the court is allowed within three years from the date of discovery of the damage .

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You can file a claim up to the moment when there is 1 month left before the expiration of the statute of limitations.

The law also allows for later recourse to court . However, the plaintiff will have to prove that he had a good reason for missing the statute of limitations.

Step-by-step instruction

In order for the trial to be successful, it is necessary to follow the stages of preparation and participation in it:

Writing a statement of claim.
Collection of documentary and material evidence of the employee’s financial liability.
Payment of state duty (check attached to other documents).
Submitting documents to the court.
An attempt to reach an agreement with the employee, otherwise a meeting in the courtroom.
Providing evidence of the defendant's guilt.
Hearing the decision on the case.

An employee who causes damage to the employer's property must compensate it in full or in part.

It is in the interests of both parties to draw up a voluntary debt repayment agreement, in which any terms, forms and methods of payment can be established. However, if the employee refuses to compensate for the damage, the employer can only go to court.

Rules for determining the amount of recovery

The management of the enterprise must make an accurate calculation of the damage caused. A month is counted from the moment of the event, after which the collection procedure opens. The employer recovers material damage from the employee according to strictly established Labor Code regulations. Any violation of the regulations will lead to a judicial appeal against the punishment and a counterclaim against the enterprise by the employee.

According to Article 246 of the Labor Code of the Russian Federation, the damage caused is calculated according to the following rules:

the book value of damaged equipment is taken into account, and the degree of wear and tear is taken into account. It is prohibited to take into account the market value of damaged property;
In case of intentional misconduct, the penalties become more severe. In some cases, the damage is estimated at 100 times the amount, for example, when drugs are stolen.

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Conducting an internal investigation helps to clarify material circumstances. If the perpetrator agrees with the conclusions of the commission, then pre-trial resolution of the conflict is possible. Refusal to admit guilt will require you to contact judicial and regulatory organizations.

The commission consists of employees who, due to their official duties, can understand the causes of damage and give their reasoned conclusions. The commission must be authoritative and representative of the person at fault. The employee must trust and accept the conclusions of the inspecting citizens. If theft or deliberate sabotage is detected, management is forced to conduct an inventory.

A road accident recorded by the traffic police does not require an internal investigation. In this situation, the primary basis for collecting damages is the decision of the road service. The insurance indemnity and the cost of the appraisers' work together constitute the cost of recovery. Establishing the amount of damage in various ways becomes the first step to resolve the conflict.

The culprit is given a report on the investigation to sign, which he has the right not to sign. There are no procedural requirements for the form and content of the act; the document must be understandable and not contain doubtful aspects.

Procedure and features of recovery of damages under collective liability

A collective liability agreement is a type of full liability agreement, so the same requirements apply to them.

Responsibility under such an agreement cannot be divided between all employees who signed it. The courts are based on the fact that such a team acts as a single entity and if there is a shortage, each of the team members must separately prove the absence of their guilt in causing damage to the employer’s property (paragraph 3 of Article 245 of the Labor Code of the Russian Federation).

This is also important to know:
Pre-trial claim: sample and form 2020

When resolving such disputes, the court checks the following facts (clause 14 of the PPVS No. 52):

is it legal to conclude an agreement on collective responsibility in this case;
whether the employer filed claims against all members of the named team who worked during the period of damage.

If the demands are not presented against all members of the team, the court involves them as third parties who do not make independent claims regarding the subject of the dispute on the defendant’s side, since their testimony can be of great importance for resolving such a dispute.

The admissibility of attracting not all employees who signed the contract does not mean that the employer can thus infringe on the rights of persons against whom he nevertheless made demands. In this case, the distribution of the amount to be compensated is made taking into account all members of the team who worked during the period of damage (for example, the ruling of the Perm Regional Court dated January 27, 2016 in case No. 33-386/2016).

When calculating the amount of compensation, the courts take into account in relation to each employee (paragraph 2, paragraph 14 of PPVS No. 52):

the degree of his guilt;
wages;
actually worked time from the date of the last inventory until the moment of damage.

The concept of loss in terms of civil law

Compensation for losses as a form of civil liability is enshrined in the Civil Code and a number of regulations. The legislation contains a number of synonymous concepts - “damage”, “losses”, “harm” and others. In essence, these concepts have identical meaning.

Losses can be material and moral:

Moral harm or damage involves causing moral or physical suffering to a person. This type of damage is not of a property nature. The consequence of causing moral harm can be damage to reputation, insult to personality.
Material damage is damage to property, material resources of an individual, which resulted in loss of profit or the opportunity to make profit in the future. This type of loss has a pronounced property nature. Can be caused to an individual or legal entity due to a violation of the terms of a contract or other illegal actions.

Any loss or damage is the consequences of a person’s negative actions or inaction towards another person or group of persons.

Losses subject to compensation are specified in the Civil Code of the Russian Federation. In civil law, losses are property consequences, negative, unprofitable for the creditor, which were the consequence of an offense - the actions of the debtor.

Forms of manifestation of losses:

Lost profits - income that could have been received, provided that the situation that occurred through the fault of a person or group of persons, organization, would not have disrupted the plans;
Actually caused damage - expenses, material losses that one person suffered due to the fault of another person or organization.

Exclusion of employee liability

Below are cases when an employee can rightfully refuse to pay compensation:

Third party force. That is, a consequence of the actions of terrorists, natural factors (earthquake, tsunami, etc.), military clashes.
Technical breakdown. Due to the careful use of items, a technical breakdown occurred through no fault of the employee.
Extreme protective measures. This includes situations where the breakdown occurred as a result of protection. In other words – defense of life.
Theft. The employer did not equip the employee’s workplace with the necessary precautions against the loss of items (that is, safes, alarms, security, and so on).

Thus, in the presence of the above situations, the employee is not obliged to pay for the damage. Financial liability is excluded.

We familiarized ourselves in detail with all situations of employee liability for damage compensation, examined methods of paying money, and studied cases excluding liability. After reading the article, you learned how to act correctly in the event of a payment being awarded for damage to items at work.

Unintentional causing of property damage

The employer must conduct an administrative investigation, during which it is necessary to establish: whether damage was caused, under what circumstances, where and at what time, the motive and purpose of the employee, what is the degree of guilt, whether there was inaction, behavior, personal qualities, the amount of damage are determined etc.
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The employer must accept written explanations and, based on them, determine what caused the damage.

The employee must be familiar with all materials collected during the investigation. Often a special commission of specialists is created for verification.

Compensation for damage to the enterprise is carried out by the employer (administrative penalties). The required amount is usually recovered from the employee who was found to be responsible for the damage, but it should not be more than the average monthly salary.

It happens that collection is carried out through the court. The reasons for this may be:

More than a month have passed;
The employee refuses to compensate for the damage voluntarily, and the amount is more than the average monthly salary.

In order to ensure that the employee’s rights are protected, the employer provides for the possibility of appeal if the employer does not comply with the established collection procedure.

The employer must prove that the employee is guilty of causing the damage. There is one exception - if the liability is collective, one of its members must prove that he is not at fault. The court determines the guilt of each member of the team.

A court or a commission specializing in labor disputes can reduce compensation for damage to an enterprise (its amount). In this case, the body considering the dispute must become familiar with the employee’s financial situation, the form and degree of his guilt, take this into account and then make a decision.

Enterprises conducting administrative inspections are recommended to create commissions formed by professionals, and employees who are subject to damages are advised to seek legal advice.

The amount of damage may not be very significant; usually the losses do not exceed the average monthly salary of the employee. In this case, the employer, by his order, determines the payment method.

The employer must not forget about the mandatory condition specified in the law: the penalty must be imposed no later than one month from the moment the amount of damage is established. Moreover, within the specified period, the amount of damage must be finally determined.

Let’s say that the one-month period for issuing an order regarding compensation for losses has expired, and the employer has not decided on the method of collecting damages. Then he loses the right to recover damages from the employee in a simplified manner. He should go to court to obtain a decision from that body.
The damage caused can be very large, that is, significantly exceeding the employee’s average monthly earnings. In this case, the employee is unlikely to agree with the commission’s conclusions. The employer will have to go to court.
The resolution of the issue related to payment of damages to the employer is often transferred to the courtroom for the very reason that employees rarely agree to voluntarily compensate for the damages established by the commission. After all, its members depend on the same employer, and a conscientious lawyer hired by the employee will be able to establish any discrepancy in the submitted act.

In addition, an employee from whom the employer intends to recover a large amount of damage is unlikely to continue working at this enterprise in the future. He has nothing to lose, and he has a chance to defend his innocence in court if he takes advantage of serious legal support.

In the process of collecting damages, some rules or general procedures may be violated. Then the actions of the employer trying to recover damages from the guilty employee will be declared illegal in court.

usually this is unpaid wages for the period following the illegal dismissal;
this may be an amount illegally collected for alleged damage;
the claim may concern compensation for moral damages if the employee presents convincing evidence of his moral suffering directly related to the false accusation and dismissal.

But the employer does not have the right to demand compensation from the employee for any moral damage, since a person cannot cause moral damage to the company.

Should an employee agree to voluntary compensation for damages?

Often, the employer manages to negotiate peacefully with the employee so that he compensates him for losses (Article 248 of the Labor Code of the Russian Federation). This approach will save both parties to the conflict from lengthy litigation, and the employer from the costs associated with the work of the commission. However, in this case, the employee usually compensates the damage partially, and not in full.

The parties sign an agreement regarding voluntary compensation for damage, the essential terms of which are:

sum;
payment terms and procedure for collecting the entire amount from wages;
no further claims from the employer.

But an employee has the right to leave the enterprise at any time if:

owes part of the outstanding amount;
refused to pay for the damage.

Then the employer goes to court. Large enterprises have their own lawyers. But not all of them can win in a lawsuit, since this work requires a specialist in the field of civil litigation.

We suggest you read: Due to a mechanical error

The employer can agree with the employee to transfer property to him to pay off losses. He may also agree to allow the employee to repair the damaged property himself.

To ensure that the employer does not suffer significant losses due to the actions of his employee, and the employee does not have to pay twice (at the same time paying unreasonably high compensation for damage and correcting the breakdown), both parties to the conflict will need legal support.

You can reach an agreement peacefully and avoid unnecessary costs associated with litigation. After all, the plaintiff will need to order an independent examination, but this will not be cheap. By the way, you can get an expert examination ordered by the court.

A competent lawyer can act on either side of the conflict. An experienced lawyer has to defend employers, their employees, as well as persons entrusting property that was damaged or lost by hired employees.

To do this, you need to have a good understanding of all the nuances of Chapters 37-39 of the Labor Code of the Russian Federation, as well as follow various innovations in other legislative acts of the Russian Federation that may relate to labor relations.

If a conflict situation arises, consult with an experienced lawyer as soon as possible. In many cases, even an initial consultation is sufficient to resolve controversial issues, but sometimes comprehensive legal support in court is required.

List of references and sources

Labor Code of the Russian Federation. Section 11 “Financial liability of the parties to the employment contract”
Resolution of the Ministry of Labor of the Russian Federation of 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"

Attention

The intentionality of the actions must be proven, otherwise the conviction will be carried out under Article 168, which regulates the infliction of material damage through negligence or without intent. If a group of people participated in the incident or hooligan motives are established, then the punishment is tougher.

For example, the established fact of arson of a premises may be intentionally committed or caused by the negligence of the accused. When conducting investigative actions or subsequent judicial proceedings, this fact is decisive for the qualification of a criminal event.

Important

The accompanying information is important, allowing you to fully assess the degree of damage and the danger of the act. If damage to someone else's property led to physical damage or death of the victim, the perpetrator used a method of destroying property that was dangerous to others out of hooliganism, then the punishment will be more severe.

The order can be made no later than one month from the date of final determination by the employer of the amount of damage caused by the employee. If the month period has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer, and the amount of damage caused to be recovered from the employee exceeds his average monthly earnings, then recovery is carried out in court.

If the employer fails to comply with the established procedure for collecting damages, the employee has the right to appeal the employer’s actions in court. An employee who is guilty of causing damage to the employer may voluntarily compensate for it in whole or in part.

By agreement of the parties to the employment contract, compensation for damage by installments is allowed. In this case, the employee submits to the employer a written obligation to compensate for damages, indicating specific payment terms.

In jurisprudence, arson means deliberately starting a fire with the purpose of destroying someone else's property. An explosion resulting in the destruction of movable and immovable property can be carried out by the perpetrator using homemade devices and mechanisms, as well as industrial explosive devices.

Any use of technical and auxiliary means leads to increased punishment. Punishment for damage to property Committing intentional actions leads to a fine of 120 thousand.

rubles, recovery of earnings for three months, the maximum the court can determine is a term of imprisonment of one year.

If there are aggravating features, the recovery of earnings is increased to a year, and a maximum sentence of 3 years of imprisonment can be imposed. The penalty for damaging public property is a fine of up to 40 thousand.

Full and partial compensation for material damage In the understanding of the law, damage can be considered in the form of two components:

actual loss (in the event that personal property was lost or partially damaged under any circumstances);
lost profits (in situations in which an individual or legal entity has lost the opportunity to earn income due to the guilty actions of the defendant).

loss of accountable values;
damage to company property;
damage to property of third parties transferred to the employer for use and storage;
a fine imposed on an organization due to the fault of an employee.

Nature and scope of responsibility

The first part of Article 393 and the second part of Article 1064 of the Civil Code establishes the principle of full compensation for harm caused. The court, based on the victim’s application, determines the amount of damage and the method of compensation (in monetary terms, in kind or by carrying out repairs at the expense of the culprit, and so on). Judicial practice shows that in most cases the victim asks to recover monetary compensation for the harm caused.

The defendant's guilt is considered to be established in advance. If the defendant claims additional guilt of the victim, he is obliged to prove it. Based on the financial situation of the culprit, the court may reduce the amount of compensation.

How to issue an order for compensation for material damage by an employee

To bring an employee to financial responsibility, the company’s management issues an order for compensation of damages by the employee, a sample of which should be available in every organization. The order must reflect:

fact of damage with a detailed description;
information about the employee’s justified unlawful behavior (action or inaction) that caused the damage. The substantiation of the unlawful act is carried out based on the clauses specified in the employment contract, legislative norms, clauses of the contract on full financial responsibility, job descriptions, safety rules, etc.;
the fact of the employee’s guilt in causing material damage and the connection of this situation with his actions. If a subordinate is negligent in complying with the requirements of legislation and regulations adopted, including in this organization, such behavior does not always entail material damage. An order for compensation by an employee for damage must contain a statement part explaining why a violation occurred that resulted in harm to the company or management;
information about the direct actual damage caused and its amount.

You can attach links to accounting information about the value of lost property assets, the amount of payments for third parties, expenses for repairing damaged property, etc. to the order data.

You can more accurately indicate the amount of damage if you accompany the order to compensate the employee for damage with a prepared accounting certificate. The order and certificate must contain a date that corresponds to the day the document was developed. This moment is the start of the monthly countdown. During this time, the subordinate may be held accountable.

An indication of the level of the employee’s average monthly salary is also required to confirm the legality of the decision to compensate for damages made by the manager.

In addition, it is necessary to indicate that there are no circumstances excluding the financial liability of the subordinate. This:

exerting influence;
presence of real economic risks. Here we are talking about the actions of the employee, corresponding to today's knowledge and experience, which he uses to solve the assigned tasks. An employee can fulfill certain job obligations, exercise caution, prevent damage, where the object of risk is property, and not the lives and health of people;
availability of contingencies and protection. This point is related to criminal and criminal procedural legislation;
failure by the manager to fulfill his duties to ensure appropriate conditions for the safety of property entrusted to the employee. In accordance with Decree No. 52, compensation for damage by an employee of an enterprise may not apply if the employer stored the property improperly.

According to Article 240 of the Labor Code of the Russian Federation, the employer may not recover damages from a subordinate, either fully or partially. Here we need to take into account the conditions that caused the harm. It often happens that an employer allows a subordinate to refuse compensation for damage, but the direct owner of property values limits this right. The owner is guided by the relevant federal laws, regulations and legal acts, and the company’s constituent documentation.

At the same time, nothing specific is said about the procedure for limiting the rights of a manager, as well as about the consequences that are prescribed in labor legislation.

When collecting a debt in an amount less than the amount of financial damage, the company administration must coordinate the planned action with the direct owner of the property and report in writing about the results of the agreement in the order, that is, in its stating part.

An order for compensation by an employee for damage includes an effective part, which should say:

About trustees who are financially responsible for property.
About the amount of damage caused and the procedure for its recovery.
About cases when the amount of recovery exceeds the average monthly income, and there is voluntary compensation for damage by the employee, as stated in his statement.