Liability types

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

Terms of liability

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

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

Types of liability (full and limited)

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

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

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

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

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

Full liability.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Labor Code of the Russian Federation defines the concept of "actual damage", by which the legislator understands the actual decrease in the employer's cash property or the deterioration of the said property (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs or excessive payments for the acquisition, restoration of property or for compensation for damage caused by the employee to third parties.

So, the employee is financially responsible:

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

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

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

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

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

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

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

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

1) individual liability;

2) collective liability.

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

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

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

1) when, in accordance with the provisions of the Labor Code of the Russian Federation or other federal laws, the employee is held liable in full for damage caused to the employer in the performance of labor duties by the employee;

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

3) intentional infliction of damage;

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

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

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

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

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

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

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

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

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

In accordance with this agreement, the brigade assumes full collective liability for all values ​​transferred to it for recounting, receiving, issuing, processing, storing and moving values ​​and undertakes to take measures to prevent damage.

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

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

In accordance with Article 244 of the Labor Code of the Russian Federation, written agreements on full individual or collective (team) liability, i.e. on compensation to the employer of the damage caused in full for the lack of property entrusted to employees, are concluded with employees who have reached the age of 18 and directly serve or use monetary, commodity values ​​or other property.

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

1) a list of positions and works to be replaced or performed by employees with whom the employer can enter into written agreements on full individual liability for the shortage of entrusted property (For example, work: on the receipt and payment of all types of payments; on settlements in the sale (realization) of goods, products and services (including not through a cash desk, through a cash desk, without a cash desk through a seller, through a waiter or other person responsible for making payments); for maintenance of vending and cash machines;

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

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

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

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

The liability of the employee and the employer is defined in the Labor Code. The legislation establishes various grounds for its occurrence, the rules for compensation for harm caused. Consider some cases of employee liability.

Foundations

The material liability of the employee for the damage caused occurs if the employer can prove:

1. The fact of harm.
2. A violation committed by an employee that resulted in damage.
3. The presence of a causal relationship.
4. The amount of harm.
5. The existence of an agreement on mat. employee's responsibility.

To do this, the employer checks the labor discipline of the employee who caused the damage. If necessary, a special commission is formed. The head of the enterprise issues an order defining its composition.

Explanatory

The employee is obliged to explain in writing the reasons why he caused damage by his behavior. This requirement is set out in Art. 247, part 2 of the Labor Code. If the employee refuses or evades this duty, the employer draws up an act. Art. 247 of the Labor Code does not establish a period during which the employee must give explanations. Due to the fact that bringing an employee to liability is carried out on the basis of a disciplinary offense, in such situations, the provisions of Art. 193. Part 1, in particular, sets a time limit of 2 business days.

Employee rights

The employee has the right to get acquainted with all the materials collected during the verification of the offense that caused the damage. If necessary, he can appeal against them, file petitions and by other means contribute to an objective analysis of what happened. In addition, the employee has the right to attract a representative. This possibility is enshrined in Part 3 of Art. 247 TK. A representative may be a specialist who, in the opinion of the employee, has the necessary experience and knowledge for a legitimate, objective examination of the charges.

Features of compensation for losses

The procedure for compensation for the harm caused is included in the contract of material liability of the employee. According to part 1 of Art. 238 of the Labor Code is not subject to compensation for lost profits. The tenant can count on the recovery of only direct actual harm. It should be understood as a real decrease in the amount of cash property or deterioration in the state of values. The material liability of the employee and the employer extends to objects owned by third parties, but stored at the enterprise. If damage to such property was caused by employees, the employer may compensate for it in favor of third parties. The manager has the right to recover from the employee expenses or excessive payments for the restoration, acquisition of property of third parties.

Types of liability of an employee

According to the law, the amount of compensation for harm is limited to the average monthly earnings of employees. In this regard, such material liability of the employee is called limited. The establishment of the limit for the recovery is explained not only by the desire of the legislator to protect the interests of employees, but also by the conditions in which they perform their professional duties. By the end of the shift, employees often lose self-control, the ability to adequately assess the danger that always occurs when working with equipment, tools, materials, and so on. As a result, there is a marriage, the wear of production means increases. This, in turn, causes material damage. At the same time, the law provides for cases when the recovery is not limited to the average monthly salary. They are established in Art. 243 TK. In the first part of this article, the grounds are provided for under which the full liability of the employee comes. It is classified depending on the subject composition and nature of the violation.

Agreement on the full liability of the employee

Such an agreement is concluded with an adult employee when he is enrolled in the state, if for the performance of his duties he is entrusted (transferred) with valuables (including money). The standard form is approved by the Ministry of Labor and Social Development. The agreement establishes the duties and rights of the employer and employee. In particular, the employer must create appropriate conditions for the employee in which the latter will carry out his activities and ensure the safety of the material assets entrusted to him.

If the employer fails to fulfill this obligation, the employee may be released from the penalty in case of damage to property. The agreement is drawn up in duplicate and remains with each party. The conclusion of the contract is carried out only with the employee who performs professional activities related to the transportation, storage, sale, processing or use in production of material assets. The list of relevant positions is approved on behalf of the government. Its expansion by local regulations or collective agreements is prohibited.

Art. 243 TK

Full material liability of the employee takes place when:

1. Lack of valuables entrusted to an employee in accordance with a special written agreement or received under a one-time document.
2. Intentional damage by an employee to the property of the employer.
3. Causing damage while intoxicated (drug, alcohol, etc.).
4. Causing harm as a result of a criminal act, the guilt for which has been proven in court.
5. Infliction of damage by an administrative violation, if measures of influence were applied to the employee or the fact of damage, destruction or waste of entrusted property was established.
6. Disclosure of information that constitutes a state, commercial or other secret protected by law.
7. Causing damage during non-working hours when using production facilities belonging to the employer in their own interests.

Subject composition

The legislation provides for the types of material liability of an employee depending on his position. So, in Art. 243 part 2 of the Labor Code, it is established for the chief accountant, deputy head of the enterprise. The director of the organization is responsible for Part 1 of Art. 277 TK. On the grounds provided for by law, he compensates for the harm caused by his guilty behavior, under part 2 of this article. An employee under the age of 18 is liable only for:

1. Intentional damage.
2. Harm while intoxicated.
3. Causing damage as a result of a crime or administrative violation.

Other cases

The liability of employees can be not only individual, but also collective (team). It also comes on the basis of an agreement. The head of the enterprise concludes an agreement with the team if, when they perform work related to the sale, transportation, storage, use or other use of property, it is impossible to establish the limited liability of each employee and issue it with the appropriate document. The agreement is concluded with all members of the brigade. The initiative, as a rule, comes from the leader and is formalized by his order (order). This document is attached to the agreement. The contract must include:

1. Subject of the agreement.
2. Duties and rights of the team and the head of the enterprise.
3. The procedure for reporting and accounting.
4. Compensation rules.

The contract must be signed by the head, the head of the team and all its members.

Specifics of the agreement

The employer appoints the head of the team by his order. During the absence of the head of the team, his duties are assigned to one of the members. In the event of the departure or admission of an employee to the team, the contract is not renegotiated. The re-signing of the agreement is carried out if more than half of the participants from the original composition or the head of the team leaves. When employees are admitted to the brigade, the contract indicates the date of enrollment in the state. The employees included in the team sign the agreement. The contract must contain the obligation of the employer to create the appropriate conditions for the brigade to ensure the safety of the material assets entrusted to them for the performance of the assigned functions.

The head of the enterprise must take timely measures to detect and eliminate the reasons that prevent the preservation of the integrity of the property. He is also obliged to identify those guilty of causing harm, to apply appropriate punishment to them. The contract establishes the liability of employees for direct actual losses, as well as losses incurred by the employer as a result of compensation for damage to third parties.

Compensation amount

The amount of damage caused to the property of the enterprise is established in accordance with the actual losses. They are calculated at the market value in force in the area at the time of the incident. In this case, the amount of damage cannot be less than the price of the lost valuables according to the financial statements. The calculation takes into account the level of depreciation of the property. Part 2 of Art. 246 of the Labor Code, the legislation may establish a special procedure for determining the amount of harm caused to the head of the enterprise as a result of theft, deliberate damage, loss or shortage of certain types of values.

These include, among other things, precious metals, precious stones, and so on. This provision applies to situations where the actual harm exceeds the nominal amount. Federal Law No. 3 provides for the material liability of employees, which is 100 times higher than the actual harm caused to the enterprise.

Limited collection

Liability of employees for damage may be established in the amount not exceeding:

1. Average monthly income.
2. Three salaries per month.

In the absence of grounds for collecting an increased amount, all employees compensate for damage in the amount of the average monthly wage. The grounds on which such responsibility arises for the heads of enterprises are established:

1. Harm caused by excessive payments. Such payments should be understood as the amounts of fines, wages accrued to the dismissed employee due to the delay in providing him with a work book due to the fault of the employer, as well as payment for excessive vacation days, without excluding absenteeism.
2. Causing harm due to improper organization of accounting and storage of property, cash.
3. Causing harm due to failure to take appropriate measures to prevent downtime, the release of low-quality products, theft, damage or destruction of valuables.

Increased compensation

In what cases does such material liability of employees occur? The Russian Federation is a state that seeks to ensure the protection of the interests of employees of the enterprise. In connection with this legislation, increased material liability of employees holding certain positions has been established. In particular, persons guilty of illegal transfer or dismissal of an employee are obliged to compensate for the harm caused in the amount of 3 monthly salaries. A similar penalty has been established for officials in the event of a delay in the execution of a court decision on the reinstatement of an employee at the enterprise. Recovery in such situations is imputed to the subject guilty of a clear violation of the law when dismissing or transferring a specialist. Such actions include, in particular:

1. Termination of the contract at the initiative of the manager without the consent of the relevant elected body of employees (trade union), when consent is required by law or other grounds established in the agreements.
2. Dismissing women in circumstances in which termination of the contract is unacceptable.
3. Release of underage employees from their positions without the consent of the State Labor Inspectorate and the territorial Committee on Taxation.
4. Termination of the contract or transfer of chairmen and members of trade unions, trade union organizers who are not released from production duties in violation of the guarantees established by law.
5. Change of the place of activity of the employee without his consent.
6. Transfer or dismissal of a member of the council of a team of employees without the consent of the council.

Additionally

Liability of employees is established in court if:

1. Employees refuse to compensate damages on a voluntary basis.
2. The amount of damage is higher than the average monthly earnings.
3. The employee quit, but did not pay off the debt for the harm caused.

The employee has the right to compensate for the damage caused by his actions on his own initiative in part or in full. By agreement of the parties, an installment plan may be established to repay the debt that has arisen. In such situations, the employee gives a written commitment that he will compensate for the damage within a specific timeframe. The agreement specifies the exact amount of payments. With the consent of the head of the enterprise, the employee may, as compensation, transfer property of equal value to the employer or eliminate damage to the values ​​belonging to the enterprise. The material liability of employees can be reduced by decision of the administration of the organization. The head of the enterprise also has the right to refuse to recover damages from employees. In case of damage due to an administrative offense, the tenant may send the case materials to law enforcement agencies. If there has been a disciplinary violation, the head has the right to apply appropriate measures to the perpetrator independently.

Conclusion

In the event of material damage, the head of the enterprise must conduct an internal investigation of the incident. In such situations, as a rule, a special commission is created. It includes representatives of the trade union and the employer. In the course of the investigation, all the circumstances of the incident must be established, the specific perpetrators must be identified, and the amount of damage must be established. If it is impossible to identify the persons who committed the actions that caused harm, the head of the enterprise applies to law enforcement agencies.

Employees have the right to appeal against the actions of the head, make petitions, provide evidence of their non-involvement in the incident. The Labor Code establishes circumstances upon the occurrence of which the material liability of employees is excluded. This is possible in the event of an emergency, under the influence of force majeure, if the employer fails to fulfill his obligations to create the proper conditions to ensure the safety of the values ​​entrusted to the employee. An employee may also be released from material liability in case of necessary defense, as well as in case of normal economic risk.

Section XI is devoted to the issues of material liability of the parties to an employment contract in the Labor Code of the Russian Federation. We will tell you about the types of material liability of employees and the conditions for its occurrence in our consultation.

The concept and types of liability in labor law

Liability is the obligation to compensate for the damage caused.

What types of liability are provided for by labor legislation? There are several types of material liability of the parties to the employment contract.

Firstly, liability differs according to the persons who caused damage to the other party:

• liability of the employer;
• employee liability.

Both parties are obliged to compensate for the damage caused in accordance with the Labor Code of the Russian Federation and other federal laws (part 1 of article 232 of the Labor Code of the Russian Federation).

It is important to take into account that the employer’s liability to the employee provided for in the employment contract or other agreements cannot be lower, and the employee to the employer cannot be higher than it is provided for by the Labor Code of the Russian Federation or other federal laws (part 2 of article 232 of the Labor Code of the Russian Federation).

Termination of the employment contract does not relieve the party from the obligation to compensate for the damage at the time of termination caused to the other party to the employment contract (part 3 of article 232 of the Labor Code of the Russian Federation).

Secondly, material liability may differ in the reasons for its occurrence. Here are some types of liability of the employer. So, for example, the liability of the employer may arise as a result of:

• illegal deprivation of an employee of the opportunity to work (Article 234 of the Labor Code of the Russian Federation);
• causing damage to the property of an employee (Article 235 of the Labor Code of the Russian Federation);
• delays in the payment of wages and other amounts due to the employee (Article 236 of the Labor Code of the Russian Federation);
• causing moral harm (Article 237 of the Labor Code of the Russian Federation).

Thirdly, liability can be full and limited.

As a general rule, for damage caused to the employer, the employee bears liability within the limits of his average monthly earnings (Article 241 of the Labor Code of the Russian Federation). But in some cases, direct actual damage must be compensated in full.

At the same time, when it comes to full compensation for damage, there are such types of liability of the employee to the employer, such as:

• full individual liability;
• full collective (brigade) liability.

This list characterizes the types and limits of the employee's liability to the employer.

Full financial responsibility of the employee

The full liability of workers can not always be established. The Labor Code of the Russian Federation states that the full amount of the damage caused is compensated by the employee in the following cases (Article 243 of the Labor Code of the Russian Federation):

• causing damage in the performance of labor duties by an employee, when full liability for such employees is provided for by the Labor Code of the Russian Federation, other federal laws;
• in case of shortage of valuables entrusted to the employee on the basis of a written agreement on full liability or received by him under a one-time document;
• in case of intentional damage;
• causing damage in a state of alcoholic, narcotic or other toxic intoxication;
• when the damage was caused as a result of the employee's criminal actions established by a court verdict;
• if the damage is caused as a result of an administrative offense, which is established by the relevant state body;
• when disclosing information constituting a legally protected secret (state, official, commercial or other);
• in case of causing damage not in the performance of work duties by the employee.

Liability in the full amount of the damage caused to the employer can be established by an employment contract in relation to the deputy head of the organization and the chief accountant.

It must be borne in mind that written agreements for the full compensation by the employee of the shortage of the values ​​entrusted to him may not be concluded with all employees. Agreements on full individual or collective (team) liability may be concluded only with employees who have reached the age of 18 and directly serve or use monetary, commodity values ​​or other property. At the same time, the lists of works and categories of employees with whom these contracts can be concluded should be provided for by the Decree of the Ministry of Labor of December 31, 2002 No. 85 (there are named, in particular, cashiers, warehouse managers, pharmacists).

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

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

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

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

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

Under current legislation, the employer is compensated only for direct actual damage. The employee does not compensate for the income not received as a result of the offense (lost profit). They are in accordance with Part 1 of Art. 238 of the Labor Code of the Russian Federation "are not subject to recovery from the employee."

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

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

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

An employer must go to court to recover damages if:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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