Liability of employer and employee. Classification according to the number of perpetrators. Depriving an employee of the opportunity to work illegally

As follows from Art. 233 of the Labor Code of the Russian Federation, the employee must be liable for any damage caused to the employer as a result of his guilty unlawful behavior. However, it should be borne in mind that, in accordance with Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for the direct actual damage caused to him. Unreceived income (lost profit) is not subject to recovery from the employee.

This is one of the main features of the liability of workers. Direct actual damage is understood as a real reduction (diminution) of the employer's cash property (or the property of third parties held by the employer, if the employer is responsible for the safety of this property) or deterioration of its condition, as well as the need for the employer to incur costs or excessive payments for the acquisition or restoration of property. In this case, the cash property of the employer is considered only that which is on its balance sheet.

Lost income (lost profits), which, as already noted, are not subject to compensation, are those income that the employer could have received, but did not derive due to the employee's unlawful behavior. For example, absenteeism, of course, causes property damage to the employer, since he does not receive some part of the profit as a result.

But this is not direct actual damage, therefore absenteeism is the basis only for disciplinary, but not material liability. On the contrary, damage by an employee to a vehicle that he drove in the performance of his job duties is an actual (real) damage and entails liability. But the losses, consisting in the non-receipt by the employer of income from the use of this vehicle in connection with its repair, are already lost profits, which are not subject to compensation.

Or another example. Due to the fault of the worker, the machine failed. The machine was under repair for three days. The cost of repairing the machine is direct actual damage subject to compensation by the guilty employee, and the possible income from unproduced in three days and unsold products forms lost profits (lost income), which is not subject to compensation.

Legislation provides circumstances excluding the liability of the employee.

The Labor Code of the Russian Federation includes:

• irresistible force;
• normal economic risk;
• extreme necessity or necessary defense;
• non-fulfillment by the employer of obligations to ensure proper conditions for the storage of property entrusted to the employee.

These circumstances are not specified in the Labor Code, but usually force majeure is understood as extraordinary and unavoidable events under given conditions. For example, we can talk about a natural disaster, as a result of which there was a shortage or damage to the property of the employer entrusted to the employee.

The risk is considered justified if:

1. the completed action corresponds to modern knowledge and experience;
2. the goal set could not be achieved by other actions;
3. the person who accepted the risk took all possible measures to prevent damage.

Extreme necessity is understood as the infliction of harm to eliminate a danger that directly threatens the person and the rights of this person and other persons, if this danger could not be eliminated by other means and if the harm caused is less significant than the harm prevented. For example, damage to the employer's property while extinguishing a fire.

An example of the lack of proper conditions for the storage of property entrusted to an employee may be the storage of valuables without appropriate protection or in a room unsuitable for this. However, the employee must promptly notify the employer in writing of the absence of these conditions.

In the presence of at least one of the considered circumstances, the material liability of the employee for damage incurred by the employer is excluded.

The legislation provides for two types of material liability of employees: limited and full.

Limited Liability is expressed in the obligation of the employee to compensate for direct actual damage, but not more than his average monthly earnings. For example, a cleaner of industrial premises, whose salary is 2 thousand rubles, in the process of washing window panes (and their area in industrial premises is quite significant) broke one of them worth 5 thousand rubles.

If a set of all conditions for bringing to liability is established, then her obligation to compensate the employer for damage will be limited to the amount of 2 thousand rubles.

Limited liability is the leading type of material liability of employees and applies in all cases, unless another type of liability is provided by law.

Full liability consists in the obligation of the employee to compensate the direct actual damage caused to the employer in full. It can BQ3J-be given to employees only in cases provided for by the Labor Code of the Russian Federation or other federal laws.

Article 243 of the Labor Code of the Russian Federation provides that full liability is assigned to the employee in the following cases:

• when, in accordance with the Labor Code of the Russian Federation or other federal laws, the employee is held liable in full for damage caused to the employer in the performance of labor duties by the employee. For example, such responsibility is assigned to cashiers in accordance with the Regulations on the procedure for conducting cash transactions for the shortage of funds received by them for safekeeping and other purposes;
• shortage of valuables entrusted to the employee on the basis of a special written agreement or received by him under a one-time document (for example, by proxy). More details about contracts on full liability will be discussed below;
• intentional damage;
• causing damage in a state of alcoholic, narcotic or toxic intoxication;
• causing damage as a result of the employee's criminal actions established by a court verdict;
• causing damage as a result of an administrative offense, if such is established by the relevant state body;
• disclosure of information constituting a legally protected secret (official, commercial or other), in cases provided for by federal laws;
• causing damage not in the performance of work duties by the employee. (For example, if an employee damages a machine or other equipment while using it for personal purposes.)

In addition to the above cases, liability in the full amount of damage caused to the employer can be established by an employment contract concluded with the head of the organization, deputy heads, chief accountant.

Most often, full liability takes place on the basis of written agreements on full liability. Such contracts are concluded only with adults who directly serve or use monetary, commodity values ​​or other property, and only with those indicated in the special lists of works and categories of workers with whom these contracts can be concluded.

Lists of these works and categories of employees, as well as standard forms of contracts, are approved in the manner established by the Government of the Russian Federation. Full liability agreements are concluded, for example, with storekeepers, freight forwarders, cloakroom attendants, conductors, etc.

Full financial responsibility can be not only individual, but also collective. Collective (team) liability is introduced when employees jointly perform certain types of work related to the storage, processing, sale (vacation), transportation, use or other use of the values ​​transferred to them, when it is impossible to distinguish between the responsibility of each employee for causing damage and conclude an agreement with him for full compensation for damages.

In this case, a written agreement on full liability is concluded between the employer and all members of the team (team). Moreover, in order to be released from liability, a member of the team (team) must prove the absence of his guilt.

The Labor Code defines the procedure for determining the amount of damage caused and its compensation.

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

In some cases, federal laws may establish a special procedure for determining the amount of damage to be compensated if this damage is caused by theft, deliberate damage, shortage or loss of certain types of property and other valuables, as well as in cases where the actual amount of damage caused exceeds its nominal amount. .

Before making a decision on compensation for damages by specific employees, the employer is obliged to conduct an audit to determine the amount of damage caused and the reasons for its occurrence. To conduct such an inspection, the employer has the right to create a commission with the participation of relevant specialists.

In order to establish the cause of the damage, it is mandatory to request an explanation from the employee in writing.

In the process of verification, the employee and his representative have the right to get acquainted with all the materials of the verification and appeal against them in the manner prescribed by law.

Compensation for damage can be made both voluntarily and involuntarily.

Voluntary compensation for damage possibly in cash or in kind. In monetary form, the employee voluntarily compensates for the damage in whole or in part within the amount of the type of liability that may be assigned to him by law. At the same time, by agreement between the employer and the employee, compensation for damage by installments is allowed.

In this case, the employee submits to the employer a written obligation to voluntarily compensate for the damage, indicating specific payment terms. In-kind compensation for damage is possible with the consent of the employer by transferring to him property equivalent to the lost one, or by repairing damaged property.

If the employee refuses to voluntarily compensate for the damage caused, the recovery is made in compulsory order in the form of money. There are two ways of enforcement: judicial and extrajudicial.

The extrajudicial recovery procedure consists in the fact that the amount of damage is recovered by order of the employer by deduction from the employee's salary. At the same time, the total amount of deductions for each payment of wages cannot exceed 20%. The recovery of the amount of damage caused by the order of the employer is possible only if the amount recovered does not exceed the average monthly earnings. An order for the recovery of damages can be made by the employer (as a general rule) no later than one month from the date of the final determination of the amount of damage caused.

In all other cases, i.e. when the one-month period has expired, and the order has not been made, or the amount of damage to be recovered from the employee exceeds his average monthly earnings, and the employee does not agree to voluntarily compensate for the damage, recovery is made in court.

In turn, the employee, in case of non-compliance by the employer with the procedure for recovering damages established by law, has the right to appeal against the actions of the employer in court.

The legislation of Russia strictly enshrined the obligation of the employer to pay wages to employees in a timely and complete manner. If the employer decides on violations in this area, then he will face serious checks and fines for the damage caused. The Labor Code approached the material liability of an employee to the owners and management of enterprises less strictly. However, an employee should not completely neglect the nomes of Chapter 39 of the Labor Code.

Basic regulations

Despite the fact that the employee, in fact, has more opportunities to harm the employer, the code does not contain a detailed list of the types of such damage. Article 238 of the Labor Code of the Russian Federation implies that the material liability of the employee occurs only for direct actual damage. This means that the employer can only claim compensation for damaged or lost material or financial assets. In order for the management not to try to lay responsibility on employees for hypothetical costs, in the form of lost profits, the same article clearly prohibits demanding such things from team members.

The material damage caused by the employee must be tangible, and expressed in a physical decrease in the number of valuables or deterioration in their condition, Art. 238 of the Labor Code of the Russian Federation.

In recent years, the authorities have been happy to use such a method of moral influence on the minds of employees as a promise to bring them to financial responsibility for disclosing trade secrets. To increase the vigilance of employees and prevent the spread of inside information, the employer often classifies things that are not at all related to such information as secret. For example, the amount of salary or bonuses, the composition of the founders or registration data. It should be understood that only internal reporting data, tender offers or proposed promotional activities, data on technologies, models and designs, and the like are subject to non-disclosure. But, even if this information became known to a hired person, this is not a reason to try to punish him financially. A necessary condition for prosecution will be the obligation to prove several facts:

• the employee was in possession of the information, was aware of its special status and gave a signature on its safety;
• transferred it to unauthorized persons (accidentally or intentionally);
• the data used caused the company real material losses.

But even in this case, the court will analyze the degree of guilt and qualify the severity of the employee’s misconduct, until its decision is made, only disciplinary liability can be applied.

If, nevertheless, the illegal use of commercial information is proven, and even with signs of personal gain, then the employee risks falling under Art. 183 of the Criminal Code of the Russian Federation, which states not only the application of impressive fines, but also real imprisonment.

Collect all, or cases of full liability

Learned - work or compensate

Today, it is not uncommon to find an employer who cares about improving the skills of their employees. Investing in the training of specialists has become a common practice, but since modern education costs decent money, the management also needed means of protection against the dishonesty of trainees. Article 249 of the Labor Code is intended to regulate this moment of labor relations, which allows an employer who has spent financial resources and time on training personnel to demand their compensation in case the employee fails to fulfill his obligations for mandatory work.

If an employee violated the contract on obtaining a specialty at the expense of the company and quit before graduation without good reason, then the entire amount spent during the years of study is subject to recovery. If the term of working off is violated, then the amount calculated in proportion to the unworked time is reimbursed.

There is damage, but no liability

But even the established actual damage and its culprit do not always mean that the employee will be held liable. In the event of a force majeure or risk of life for the employee himself or several, especially if the person has done everything possible to preserve property, such damage cannot be recovered, art. 239 TK.

The same article also implies one more reason for the employer to refuse attempts to collect the cost of stolen or damaged materials from the employee. If the management neglects its obligations to ensure the conditions for storing valuables, then even the specialist who signed the documents on their preservation will not be financially responsible for their loss. For example, if the employer discloses information about security methods, admits strangers to the territory of the warehouse, or refuses to repair locks and install bars in a timely manner, the storekeeper will be able to prove in court his innocence in the discovered shortage and avoid paying their cost.

Blame the employee, but the employer will answer

In addition to direct damage in the form of theft or equipment breakdown, an employee can also harm indirectly: damage property owned by the counterparty, but transferred to the preservation of his company. In this case, the employer of the negligent specialist will have to pay the full cost of the damaged materials (Articles 402 and 1068 of the Civil Code of the Russian Federation), and then decide how to get the costs incurred from the offender (Chapter 39 of the Labor Code). So, if the atelier spoiled the fabric or made a mistake with the size, the customer will rightfully demand a refund from the management of the sewing enterprise. All attempts by the employer to remove responsibility from the organization and step aside will be illegal, since the court will consider the studio as the executor, and not a specific seamstress. How relations between the authorities and the person hired to perform the work will develop in the future, the customer will not be affected.

The duty of the employer is to prove the amount of damage and establish the guilt of the employee

The fact of causing material damage can be established both situationally (appeal of a counterparty, emergency, report of a materially responsible person), and during planned activities (inventory). But fixing this state of affairs is not enough to present financial claims to the employee. First, you need to conduct an audit and comply with the established Art. 247 TC procedures:

1. Create a new or convene an existing commission at the enterprise, designed to establish the amount of damage, its causes and perpetrators.
2. Determine the quantitative composition of the missing property and its value (based on accounting registers or according to the current market valuation).
3. Find out the circumstances of the damage and the circle of those involved.
4. Demand written explanations from all those potentially responsible for causing harm. If the employees refused to write them, then this should be recorded in a separate act.
5. Assess the degree of guilt of the employee or the participation of each member of the team, taking into account extenuating circumstances that allow waiving the claim for compensation payments, art. 240 TK. As a rule, the salaries of all the perpetrators are also taken into account.
6. Based on the results of the check, draw up an inventory list or a defective act.
7. Familiarize the guilty employee with the materials of the audit and take into account his objections.
8. Issue an order (instruction) to bring the employee to liability.

It should be noted that the inspection is the direct responsibility of the employer. If he evades it, but does not give up his intention to financially punish the employee for damaged property, the indiscriminately accused person can not only ignore the demands of his superiors, but also apply to the court to protect his interests.

In the process of checking and determining the amount of losses, the employer has the right to refuse claims against the employee, or partially reduce them, based on the employee's explanations or the specific circumstances of the incident, Art. 240 of the Labor Code of the Russian Federation.

Procedure for payment of material damage

If all the formalities for establishing the amount of financial losses of the enterprise and the circle of persons responsible for them are observed, there comes a time when the funds must be legally withheld from the income of employees and documented their withdrawal.

The amount of the established damage	Deadline for submitting a claim from an employer	Reimbursement Method	Documenting
Small damage, not exceeding the average salary	Within a calendar month from the date of determining the damage	From the employee's salary, if he continues to work, from settlement and compensation payments upon dismissal	The order of the head, after receiving a written explanation from the employee and familiarizing him with the calculations of costs.
Minor damage, not exceeding the average salary, which the employee refused to compensate, or damage, the amount of which exceeds the average salary of the guilty employee	Within a year from the date of discovery of the fact of damage or loss of property, Art. 392 of the Labor Code of the Russian Federation.	From the salary of an employee who continues to work in the amounts provided for in Art. 138 of the Labor Code of the Russian Federation. From other incomes of laid-off workers in the same amounts.	Deductions are possible only by a court decision and on the basis of a writ of execution.
Damage in excess of the average salary, for the recovery of which the voluntary consent of the employee has been obtained	Within a year from the date of discovery of the fact of damage and loss of property, Art. 392 TK.	From the employee's salary or in the form of providing an equivalent replacement for damaged property. There are also frequent cases of reaching an agreement between the parties on restoring the working capacity or qualitative characteristics of damaged valuables, Art. 248 of the Labor Code of the Russian Federation.	The order of the head and a written agreement on the method and procedure for compensation for harm. It also specifies the amount or amount of damage caused, the timing of debt repayment or repair work, the technical characteristics of the equipment provided in exchange for the lost one.

Voluntary payment for damages

In rare cases, an agreement is reached between the employee and the employer on voluntary reimbursement of costs incurred by the company to restore material assets or settle relations with counterparties, it will be necessary to conclude a written agreement. The guilty employee is obliged to pay the amount of damages. Moreover, there will not be a restriction established by Art. 138 TK. The contract may imply a full one-time deposit of money into the cash desk or to the current account of the enterprise, and the repayment of debt in installments, and even a separately agreed amount that does not correspond to either accounting data or market information. The validity of the signed contract does not terminate with the termination of the employment relationship and will continue even after dismissal.

Unfortunately, often such agreements are not fully implemented or they are abandoned without starting payments on them. In this case, the employer has only one way to bring the employee to liability - going to court for the truth.

Arbitrage practice

Lawyer of the Board of Legal Protection. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and other regulatory documents to regulatory authorities.

The question of what material responsibility the employee bears to the employer is a key one in many cases of employment, especially in responsible positions with a high risk of damage to the enterprise by the employee's actions. The current legislation provides for direct consideration of these issues in the context of labor law, depending on the specific situation of material damage caused by employees.

Employee liability - what is it and when does it arise

The legal regulation of the concept of liability in the conduct of labor relations is widely disclosed by the provisions of the Labor Code of the Russian Federation. In particular, the sectionXI TK RF. From the point of view of the employee's liability to the employer, the main regulations for regulating this topic are indicated by articles 238-250 of the Labor Code of the Russian Federation.

Under this designation, in accordance with the provisions of Article 238 of the Labor Code of the Russian Federation, the obligation to compensate for damage caused by one's own actions or inaction to the property of the employer is implied. At the same time, such an obligation arises through the fault of the employee in the process of implementing labor relations. In addition, the liability of employees at the enterprise may include cases of causing harm to third parties who have any business relationship with the employer.

The application of the liability provisions requires three fundamental conditions to be met. In particular, the employer has the right to demand compensation from the employee if the following facts are combined:

• The presence of a causal relationship between the actions of the employee and causing harm. That is, the employer needs to provide evidence that it was due to and due to the actions or non-commission of such by any employee or group of employees that material damage was caused.
• The damage was caused by an unlawful act or inaction of the employee. Thus, the prosecution of workers is allowed even when, by virtue of their duties, they had to take certain actions to prevent such consequences, but did not fulfill them.
• The presence of guilt in the damage caused. This should imply the mandatory qualification of a person's personal attitude to the action that caused the damage. This attitude is recognized as containing guilt if it was expressed in the form of negligence or intent of the employee. That is, when the worker acted in full accordance with the existing job descriptions, job duties and common sense, did not realize the consequences of his actions or inaction, and at the same time did not seek to cause damage to the employer, he can be exempted from liability.

The legislation refers exclusively to real harm to the indicated liability. This means that the worker is only responsible for the actual reduction in the amount of property of the employer or third parties, or its damage, deterioration or destruction. The benefit not received due to the actions of the employee cannot be written off and demanded by the employer from the employee.

Labor legislation implies the existence of two main varieties of material liability, which is applicable to workers. The use of the norms of this division is extremely important for the subsequent qualification of the case. So, liability can be full or limited. In the first case, the worker is liable for all and any harm caused to him, and with limited liability, it is supposed to establish clear legal limits on the financial amounts that can be recovered from the employee.

There is also the concept of collective or brigade liability. It provides for a certain division of harm and obligations for its compensation for all employees of a separate division of the enterprise. Members of the aforementioned collective, upon voluntary admission of guilt, have the right to determine the degree of responsibility of each of their members, and when resolving the issue in court, it is determined by the court.

In the event of early termination of the employment contract, if the employee's education at the expense of the employer was provided for by the terms of this agreement, the resigning person is obliged to reimburse him for all the funds spent on his training.

How liability is determined and its amount

By default, all employees bear exactly limited liability. This means that the maximum amount of penalty and compensation that an employer can demand is limited to certain limits. Such limits are established by the provisions of Article 241 of the Labor Code of the Russian Federation and in most situations correspond directly to the average monthly earnings of an employee.

Determination of the average monthly earnings is the responsibility of the accounting department of the enterprise. At the same time, it is calculated for the last two years of employment.

Full liability is governed by the provisions of articles 242-244 of the Labor Code of the Russian Federation and is applied only in certain cases. Generally, these include, regardless of other factors, the following:

• If there is a shortage of valuables that were entrusted to the employee on the basis of a one-time document or under a written agreement.
• In case of harm while intoxicated.
• If there is an intent of the worker to cause harm.
• When the damage was caused in connection with the commission of criminal acts by an employee, which was determined by a court decision or administrative offenses.
• When causing material damage outside the time of performance of their work duties.

In addition, the legislation provides for the possibility for the employer to conclude a separate agreement on the full liability of the employee. Such an agreement is concluded in writing according to the standard established by law. It can be applied only to adult workers and only to persons who are included in the list of professions or positions specified in the provisions of Order No. 85 of the Ministry of Labor of the Russian Federation of December 31, 2002.

By decision of the court or the body of the enterprise responsible for labor disputes, the amount of funds required from the employee may be reduced.

The procedure for collecting compensation from the employee for the damage caused

To recover funds from an employee in the manner of an agreement in the pre-trial resolution of the aforementioned issue, the employer can use several different tools. In particular, labor standards provide for the possibility of deducting funds from an employee's monthly earnings, subject to certain restrictions. So, the amount of the penalty can be:

• Up to 70% of the monthly salary in cases where there was evidence of the employee's criminal actions in causing it.
• Up to 20% of the monthly salary in situations where the employee caused damage by his actions unintentionally or accidentally.

Determining the amount of material damage is an extremely important component of this issue. The amount of possible compensation for the harm caused by the employee is calculated from the real market value of the goods and property, taking into account depreciation. The accounting documents of the enterprise, including those containing information on its acquisition by the enterprise, can serve as confirmation of the value of the goods.

Any situation in which material damage is recovered from an employee can be resolved in a judicial or pre-trial order. Regardless of the mechanism for resolving the aforementioned issue, the employer must act in such a case as follows:

In what cases the employee is not held liable

The current legislation assumes that bringing a worker to liability of a material nature is by no means permissible in every case of causing damage to workers. So, the provisions of Art. 239 of the Labor Code of the Russian Federation directly relate the following situations to cases that exclude this responsibility of employees:

• When causing harm within the limits of normal economic risk. Such a risk is established in the internal documents of the organization and job descriptions of employees, and if necessary, the final decision on this issue is made by the court based on common sense. Normal economic risks include accidental breakdowns of equipment during their operation, partial breakdown of goods during loading or unloading operations, and other types of damage.
• If the damage was caused due to force majeure circumstances. These circumstances include natural disasters, unlawful actions of third parties with which the employee was not associated, and other events that he could not influence in any way.
• When there was harm in the presence of extreme necessity. Such situations may include an attack by third parties on an employee, the use of equipment and material assets of the enterprise to save the life and health of third parties or the employee himself, and other similar circumstances.
• In case of damage due to the fault of the employer, which did not bother to provide appropriate conditions for the storage or use of the property entrusted to the employee. Such situations include, for example, the absence of proper locks or fencing at the guarded facility, restrictive systems in production, or additional confirmation fields in the software.

The employer has the exclusive right to release his employees from liability. That is, if they apply damage to him, he always has the full right not to recover compensation from them and to refuse any claims against them in connection with such property damage.

17.04.2016

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

Liability of employees according to labor law

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

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

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

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

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

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

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

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

Conditions for holding an employee liable

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

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

The specified conditions are obligatory and in the absence of at least one of them, it is impossible to bring the employee to material liability according to the norms of labor law.

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

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

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

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

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

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

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

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

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

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

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

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

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

Circumstances excluding material liability of the employee

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

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

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

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

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

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

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

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

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

Article 239. Circumstances excluding material liability of an employee

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

Article 240

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

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

Article 241. Limits of material liability of an employee

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

Article 242. Full liability of an employee

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

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

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

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

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

Article 243. Cases of full liability

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

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

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

3) intentional infliction of damage;

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

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

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

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

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

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

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

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

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

Article 244. Written agreements on the full liability of employees

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

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

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

Article 245

When employees jointly perform certain types of work related to the storage, processing, sale (vacation), transportation, use or other use of the values ​​transferred to them, when it is impossible to distinguish between the responsibility of each employee for causing damage and conclude an agreement with him on compensation for damage in full, collective (brigade) liability may be introduced.

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

Under an agreement on collective (brigade) material liability, valuables are entrusted to a predetermined group of persons who are fully liable for their shortage. To be released from liability, a member of the team (team) must prove the absence of his guilt.

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

Article 246. Determining the amount of damage caused

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

The federal law may establish a special procedure for determining the amount of damage to be compensated caused to the employer by theft, deliberate damage, shortage or loss of certain types of property and other valuables, as well as in cases where the actual amount of damage caused exceeds its nominal amount.

Article 247

Before making a decision on compensation for damages by specific employees, the employer is obliged to conduct an audit to determine the amount of damage caused and the reasons for its occurrence. To conduct such an inspection, the employer has the right to create a commission with the participation of relevant specialists.

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

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

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

Article 248. Procedure for recovery of damage

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

If the one-month period has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer, and the amount of damage to be recovered from the employee exceeds his average monthly earnings, then recovery can only be carried out by the court.

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

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

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

With the consent of the employer, the employee may transfer to him equivalent property to compensate for the damage caused or repair the damaged property.

Compensation for damages is made regardless of bringing the employee to disciplinary, administrative or criminal liability for actions or inaction that caused damage to the employer.

Article 249. Reimbursement of expenses associated with employee training

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

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

Article 250

The labor dispute resolution body may, taking into account the degree and form of fault, the financial situation of the employee and other circumstances, reduce the amount of damage to be recovered from the employee.

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