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Special types of liability. Material. See what "material" is in other dictionaries

Liability may be full or limited.

Full liability is called so because the employee compensates for the damage in full size without any limitation, but not more than the amount of direct damage.

All cases of full liability are directly indicated in the legislation, the employer is not entitled to establish any additional conditions for it.

Liability in the full amount of the damage caused is assigned to the employee if, in accordance with the Labor Code of the Russian Federation, the employee is held liable in full for damage caused to the employer in the performance of work duties by the employee.

According to part 2 of Art. 242 of the Labor Code of the Russian Federation, material liability in the full amount of the damage caused may be assigned to employees who have not concluded a special agreement only in cases provided for Labor Code or other federal laws, and not local regulatory legal acts. It should be noted that such responsibility has age limits. It is fully applicable to employees over 18 years of age. For persons under the age of 18, liability arises only for damage caused in a state of alcoholic, narcotic or toxic intoxication, and for damage caused as a result of a crime or administrative offense.

If the need to conclude an agreement on full liability arose after the conclusion with the employee employment contract and is due to the fact that, in connection with a change in the current legislation, the position held by him or the work performed is included in the list of positions and works replaced or performed by employees with whom the employer can conclude written agreements on full liability, but the employee refuses to conclude such an agreement, the employer in by virtue of part 3 of article 73 of the Labor Code of the Russian Federation, he is obliged to offer him another job, and in the absence of it or the employee’s refusal from the proposed work, the employment contract is terminated with him in accordance with paragraph 7 of article 77 of the Labor Code of the Russian Federation (the employee’s refusal to continue working due to change essential conditions employment contract).

Full material liability is imposed on the employee in the event that he caused real damage to the property of the organization. Article 243 of the Labor Code provides for 8 cases of damage caused by an employee, for which he is fully liable. Article 121 of the Labor Code provided for 7 of these cases.

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 damage;
4. causing damage in a state of alcoholic, narcotic or toxic intoxication;
5. causing damage as a result of the employee's criminal actions established by a court verdict;
6. causing damage as a result of an administrative offense, if such is established by the relevant government agency;
7. disclosure of information constituting a legally protected secret (official, commercial or other), in cases provided for by federal laws;
8. infliction of damage not in the performance of work duties by the employee.

For modern organization production and trade process, it is characteristic that two or more financially responsible persons perform their labor functions jointly. In addition, with a multi-shift, round-the-clock work regime, the transfer of values from one financially responsible person to another is greatly hampered. In this case, it is not possible to distinguish between the liability of each employee and conclude an individual contract with him. In addition, when processing material resources access to them in warehouses, bases and other places of storage is available not only to financially responsible persons, but also to other employees: loaders, packers, and auxiliary workers. Under such circumstances, collective (brigade) liability applies.

In cases specified by law, full material liability may be established on the basis of a concluded contract. The agreement on full liability supplements the general norms on material liability, providing for full compensation for damage in cases established by law, and at the same time specifies the conditions for the preservation of property. With regard to the real conditions of this particular enterprise, it is possible to draw a well-known analogy between an agreement on full liability and local rules of law that regulate that part of a particular situation that goes beyond the general rules of law. If, due to the omission of the administration, the specified contract is not concluded, this does not mean that the persons guilty of causing damage are exempted from liability - the latter will be liable (usually limited) in accordance with the norms of the legislation on the liability of workers and employees (as otherwise not provided by law).

When introducing collective (team) liability, it is necessary to comply with the principles and procedure for its application, enshrined in Art. 245 of the Labor Code and Decree of the Ministry of Labor of the Russian Federation of December 31, 2002 N 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 agreements on full liability". This list mainly contains such types of work, during the performance of which agreements on full individual liability can be concluded.

The issue of introducing collective liability is decided by the employer and is formalized by order. The composition of the teams is formed from the leaders structural divisions, their deputies, storekeepers, merchandisers, other workers directly serving material values. It is unlawful to include loaders, drivers in the brigade Vehicle, lift trucks, persons under 18 years of age. The management of the team is entrusted to its leader, while the opinion of the team is taken into account. In case of temporary absence of the foreman, his duties are performed by one of the members of the brigade.

Directly by the Decree of the Ministry of Labor No. 85, a list of works is established for which full collective liability is established. Such works include:

Works: on acceptance and payment of all types of payments; for 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); maintenance of vending and cash machines; for the production and storage of all types of tickets, coupons, subscriptions (including subscriptions and coupons for the release of food (food) and other signs (documents) intended for payment for services.

Works related to the implementation of: depository activities; examination, verification of authenticity and other verification, as well as the destruction in the prescribed manner of banknotes, securities issued by a credit or other financial institution and / or the Ministry of Finance of Russia forms; transactions for the purchase, sale, authorization for payment and other forms and types of circulation of banknotes, securities, precious metals, coins made of precious metals and other currency values; operations with cash when servicing ATMs and servicing customers with individual safes in the vault, accounting and storage of valuables and other property of customers in the vault; operations for the issuance, accounting, storage, issuance and destruction of bank, credit, discount cards, cash and other financial services for customers, for counting, recalculating or forming cash and currency values; collection functions and transportation (transportation) Money and other values.

Works: for the purchase (acceptance), sale (trade, release, sale) of services, goods (products), their preparation for sale (trade, release, sale).

Works: on acceptance for storage, processing (manufacturing), storage, accounting, release (issuance) of material assets in warehouses, bases, storerooms, points, departments, at sites, in other organizations and divisions; for equipping passenger ships, wagons and aircraft; servicing the residential sector of hotels (camping sites, motels, etc.).

Works: on acceptance from the population of cultural and household items and other material assets for storage, repair and for performing other operations related to the manufacture, restoration or improvement of the quality of these items (values), their storage and performance of other operations with them; for the issuance of rent to the population of cultural and household items and other material values.

Works: on acceptance and processing for the delivery (escort) of cargo, baggage, postal items and other material and monetary values, their delivery (escort), issue (delivery).

Works: for the manufacture (assembly, installation, adjustment) and repair of machines and equipment, instruments, systems and other products manufactured for sale to the public, as well as parts and spare parts.

Works: for the purchase, sale, exchange, transportation, delivery, forwarding, storage, processing and use in the production process of precious and semi-precious metals, stones, synthetic corundum and other materials, as well as products made from them.

Works: on cultivation, fattening, maintenance and breeding of agricultural and other animals.

Works: for the manufacture, processing, transportation, storage, accounting and control, sale (purchase, sale, supply) of nuclear materials, radioactive substances and waste, other chemicals, bacteriological materials, weapons, ammunition, components for them, explosives and other products (goods) prohibited or restricted for free circulation.

At the same time, rejection individual workers from performing work related to liability as part of a brigade should not prevent the introduction of brigade liability. Such an employee may be offered another job, and in case of its absence or the employee's refusal from such work, he may be dismissed in connection with the refusal of the job offer due to a change in essential working conditions.

Let us pay attention to the peculiarities of proving the guilt of the workers of the brigade.

In order to be released from liability (under conditions of collective (team) responsibility), a member of the collective (team) must himself prove the absence of his guilt, that is, there is an exception to the general rules of Art. 233, 238 of the Labor Code of the Russian Federation, imposing the obligation to prove the degree of guilt of the employee on the employer.

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 claiming damages in judicial order the degree of guilt of each member of the team (team) is determined by the court.

Article 250 of the Labor Code grants the right to the review body labor disputes reduce the amount of damages to be recovered from the employee. Its content basically corresponds to Art. 123 Labor Code. The body for the consideration of labor disputes, named in Art. 250 of the Labor Code, there can only be a court (Article 248 of the Labor Code).

provided by Art. 250 of the Labor Code, the possibility of reducing the amount of damages subject to compensation, taking into account the degree of guilt, specific circumstances and the financial situation of the employee, applies to all types of liability of employees.

Article 240 of the Labor Code gives the employer the right to refuse to recover damages caused by the employee, in whole or in part.

This right under Art. 240 the employer can use, taking into account the circumstances in which the damage was caused.

Reducing the amount of damage to be compensated by the employee is permissible in exceptional cases if there are those specified in Art. 250 of the Labor Code of the conditions, which must be confirmed by evidence carefully checked at the hearing, with a mandatory statement in the decision of the motives for reducing the amounts recovered.

The specific situation in which the damage was caused should include circumstances that prevent the employee from properly fulfilling the duties assigned to him, in particular, the lack of normal storage conditions, improper organization of work. At the same time, it is necessary to take into account whether the employee took measures depending on him to prevent damage.

To verify the financial situation of the employee, evidence is required about the property status of the perpetrator (the amount of earnings, other basic and additional income), his marital status (the number of family members, the presence of dependents, deductions from executive documents), etc.

Reducing the amount of damage subject to compensation is not allowed if the damage was caused by a crime committed for mercenary purposes. Such a crime includes, for example, theft of property.

With limited material liability, the employee compensates for damage within predetermined limits. According to Art. 241 of the Labor Code of the Russian Federation for damage caused to the property of the employer, the employee, through whose fault the damage was caused, is liable in the amount of direct actual damage, but within the limits of his average monthly earnings, unless otherwise provided by the Labor Code of the Russian Federation or federal laws.

The Labor Code of the Russian Federation does not establish a list of grounds for bringing to limited liability. Practice shows that the most typical cases are the following: damage or destruction due to negligence of materials (semi-finished products, raw materials, fuel), products, products, instruments, tools, overalls, office equipment, loss of documents, shortage of money, payment of a fine (compensation for damages) by the employer third parties through the fault of the employee.

Basic category in the definition limited liability is the concept of average earnings. The procedure for calculating the average wages Article 139 of the Labor Code of the Russian Federation is established. To calculate the average wage, all types of payments provided for by the remuneration system used in the relevant organization, regardless of the sources of these payments, are taken into account. In any mode of work, the calculation of the average salary of an employee is made on the basis of the salary actually accrued to him and the time he actually worked for the 12 months preceding the moment of payment. Additionally, the Regulation on the peculiarities of the procedure for calculating the average wage, approved by the Decree of the Government of the Russian Federation of April 11, 2003 No. 213, should be highlighted.

Accounting is an orderly system for collecting, registering and summarizing information in monetary terms on property, obligations of organizations and their movement through continuous continuous and documentary accounting of all business transactions (Article 1 of the Federal Law of February 23, 1996 (November 21, 1996) N 129-FZ "On Accounting"). Regulations on accounting, published before the entry into force of the said Federal Law, are valid in the part that does not contradict it (Article 19 of the same Law). The amount of damage must be documented.

Actual losses, calculated on the basis of local market prices, may exceed financial assessment the amount of damage. In the latter case, the amount of damage is calculated on the basis of the named prices.

However, in any case:

the monetary assessment of the amount of damage is given on the day of its infliction;
When determining the amount of damage, the actual loss of valuables within the established norms losses. First of all, norms natural loss, which refers to a decrease in the initial weight and volume of valuables (including raw materials, semi-finished products, industrial and technical products and consumer goods) in the process of sale, storage and transportation, which is the result of their natural (physical and chemical) properties. The norms of natural loss are differentiated by types of values, taking into account the conditions of sale, storage and transportation.

According to part 2 of Art. 246 of the Labor Code (mainly corresponding to Article 255 of the Labor Code), the federal law may establish a special procedure for determining the amount of damages subject to compensation caused to the employer:

Theft, deliberate damage, shortage or loss certain types property and other valuables;
in cases where the actual amount of damage caused exceeds its nominal amount.

A special procedure for calculating the amount of damage before the transition to market economy It was used primarily in cases of theft and shortage of foreign currency and other currency values. In new economic conditions the amount of damage in case of theft and shortage of foreign currency should be calculated based on the official exchange rate of its sale on the day the corresponding damage was caused. Currency selling rates are periodically published in Russian newspaper and other official publications.

When causing damage to other currency values, the balance sheet value of which does not correspond to their actual value, the damage should be calculated on the basis of an expert opinion, unless otherwise established by special acts.

Thus, the Federal Law of March 4, 1998 (March 26, 1998) N 41-FZ "On Precious Metals and Precious Stones", as amended and supplemented, provides that in the implementation of transactions permitted by law, payment for precious metals is made taking into account world market prices , and precious stones - at prices determined by an expert on the basis of price lists similar to those in force on the world market, taking into account market fluctuations in prices on the day of sale (clause 1, article 21 of the said Federal Law).

Give the concept of liability of the parties to the employment contract. List the types of liability of the employee and the employer. Describe the procedure for bringing an employee to liability for damage caused to the employer.

Employee liability for damage caused to the employer - it is the obligation of the employee to compensate, within the limits and in the manner prescribed by law, the damage caused through his fault to the employer with whom he has an employment relationship.

Limited Liability;

Full liability.

Limited Liability may occur if they are established by the Labor Code, collective agreements, agreements.

Limited Liability:

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

2) 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 the production of substandard products.

Full liability occurs if no withdrawals are made from general rule on full liability, as well as in accordance with Art. 404 TK.

Full liability on the basis of a special written contract(clause 1 of article 404 of the Labor Code) occurs when a written agreement is concluded between the employee and the employer on the assumption by the employee of full liability for failure to ensure the safety of property and other valuables transferred to him for storage or for other purposes.

Written agreements on full liability may be concluded by the employer with employees who have reached the age of eighteen, 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. Taking into account the approximate list, the employer has the right, on the basis of a collective agreement, and in its absence, to independently approve an approximate list of positions and works to be replaced or performed by employees with whom written agreements on full individual liability can be concluded.

When considering disputes arising in connection with the application of measures disciplinary action to employees who refused to conclude an agreement on full liability for the safety of material assets, it is necessary to proceed from the terms of the employment contract.

If the fulfillment of duties for the maintenance of material assets constitutes for the employee his main labor function, which is agreed upon when hiring, then in accordance with current legislation an agreement on full liability can be concluded with him. Refusal to conclude such an agreement without good reason is considered as a failure to fulfill labor duties with all the ensuing consequences. In case of refusal to conclude the contract for good reasons, the employer is obliged to offer the employee another job.

If the conclusion of an agreement on full liability was not stipulated when hiring, then the employee must be warned of the need to conclude a written agreement on full liability no later than 1 month in advance. If he refuses to continue working in the new conditions, he may be dismissed under paragraph 5 of Art. 35 TK.

Conditions for establishing collective responsibility:

The work provided for by the relevant List is performed by employees jointly;

It is impossible to distinguish between the liability of each employee on the basis of an individual liability agreement;

Each employee is over 18 years of age.

Members of the collective are exempt from compensation for damage if:

It was established that the damage was caused through no fault of theirs;

Specific perpetrators of the damage caused from among the members of this team are known;

Full liability for property and other valuables received under the report on a one-time power of attorney or other one-time documents(clause 2 of article 404 of the Labor Code).

The circle of persons who can be issued powers of attorney or other one-time documents for receiving property or other valuables is not defined by law. Freight forwarders, drivers, supply managers, suppliers, and other persons are often involved in the performance of such operations.

The specifics of receiving material assets under a one-time power of attorney or other one-time documents is that the employee does not receive them for storage, but, as a rule, for performing any one-time operations (for example, receiving goods and delivering them to the organization). The employee is responsible for the property or valuables that appear in the issued and properly executed one-time document.

A one-time power of attorney or other documents for performing transactions with material assets can only be issued to persons working for this employer. Refusal of an employee to receive material assets according to one-time documents for performing operations that are not included in the scope of his duties, by violation labor discipline is not, since it is possible to lay full liability on the employee only with his consent.

A person who has received a power of attorney signed by the head and the chief accountant or persons authorized by them is obliged, no later than the next day after receiving the valuables, regardless of whether they were received by power of attorney in whole or in part, to submit to the accounting department of the enterprise documents on the execution of the order and on the delivery to the warehouse or to the respective person of the received values.

It is not prohibited to issue valuables against a report on a one-time power of attorney or other one-time documents to persons under 18 years of age.

According to paragraph 3 of Art. 404 of the Labor Code, the employee bears full financial responsibility for the damage caused by his actions containing signs of acts prosecuted under criminal law. Evidence confirming the commission of such an act must be established in the course of criminal proceedings by a court verdict or a decision of the investigating authorities.

Liability in the full amount of the damage caused is also imposed if it was caused by actions containing signs of crime, but the employee was released from criminal liability due to the expiration of the statute of limitations for criminal liability or an amnesty act, as well as if the criminal proceedings were terminated in connection with administrative liability.

When a court passes a verdict of not guilty due to the absence of corpus delicti, as well as when the criminal case is terminated on this basis at the stage of preliminary investigation, the employee cannot be held liable under paragraph 3 of Art. 404 of the Labor Code, which does not exclude full liability under other norms of Art. 404 TK.

When bringing to full liability under paragraph 3 of Art. 404 of the Labor Code, the court has the right to impose joint and several liability on the defendants if it is established that the damage was caused by the joint intentional actions of several employees. Joint and several liability does not arise for persons who, although convicted in one case, but for independent crimes, as well as for persons, some of whom are convicted of intentional crimes, and others - for those committed through negligence.

Full liability associated with damage caused by an employee who was in a state of alcoholic, narcotic or toxic intoxication(Clause 4, Article 404 of the Labor Code).

The proof of the fact that an employee is in a state of intoxication is a medical report, act, protocol. These documents must be drawn up on the day the employee appears in a state of intoxication. However, the absence of documents does not deprive the court of the right to interrogate necessary cases witnesses.

Full liability in connection with damage caused by shortage, deliberate destruction or deliberate damage to materials, semi-finished products, products (products), including during their manufacture, as well as tools, measuring instruments, special clothing and other items issued by the employer to the employee in use for the implementation of the labor process(clause 5 of article 404 of the Labor Code).

The main difference from liability under paragraph 5 of Art. 404 of the Labor Code from liability under paragraph 1 of Art. 403 of the Labor Code is in the form of guilt. In the second case, liability arises in case of damage or destruction of property through negligence, and in the first case - in case of shortage, as well as intentional destruction or deliberate damage to the same property.

Full liability for damage caused not in the performance of labor duties(clause 6 of article 404 of the Labor Code), occurs when an offense is committed in free time from work or in working time, but the employee does not fulfill his labor obligations. In this case, the guilty person compensates for the damage in full, including income not received by the employer, using the norms of civil law.

For example, while using the employer's car for personal purposes, the employee made an accident, which caused damage. The guilty person compensates for the damage in full, including income not received by the employer from the use of these technical means.

Traditionally, financial responsibility is associated with labor relations, and to a greater extent with the duties of employees. Upon careful consideration of the issue of causing damage by action or inaction, one can see that, according to the Labor Code of the Russian Federation, such liability is, first of all, mutual, and when establishing it, it is necessary to adhere to the principle of equality of the parties.

Liability - what is it in simple terms

Important! It should be borne in mind that:

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

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

From the point of view of labor legislation, liability is a mutual obligation of the employee and the employer to compensate for the damage caused by one of the parties.

Material damage can be understood as:

direct destruction or loss of property;
decrease in the value of stocks as a result of the guilty actions of one of the parties (damage to valuables);
disclosure of information that caused losses;
loss of property owned by third parties, but transferred to the employer for safekeeping;
theft of the values of the employer or client.

From the point of view of labor legislation, only real damage can be considered, lost profits are not subject to compensation, Art. 238 of the Labor Code of the Russian Federation. The conditions for the onset of liability are described in detail in section XI of the Labor Code of the Russian Federation. In addition, the obligation to take care of the values used in the work process is listed as the main one in Art. 21 and article 22 of the Labor Code of the Russian Federation.

Types of liability

The method of compensation for the damage caused is directly dependent on how it is stipulated in the employment contract. Existing species Liability is classified according to:

the subject and amount of compensation - the obligation of the employee is differentiated, the employer - for the most part, full;
the number of subjects - individual and collective;
method of compensation - under an agreement, a one-time document or a court decision.

Labor legislation gives the employer the right to demand material compensation for the damage caused, but does not oblige to do this when each such fact is revealed, Art. 240 of the Labor Code of the Russian Federation.

Conditions for liability

By general rule the employee's responsibility for material damage caused to the company does not automatically occur, even if the amount is established and proven. In order to bring a hired person to account under a written agreement or under a one-time document (acceptance certificate, paper on responsible storage, invoice or inventory) several essential conditions must be present:

the damage is real (hypothetical damages within the labor relations not considered)
guilt in the actions (inaction) of the employee or criminal intent;
a proven causal relationship between the harm and the actions of the employee (memorandums, audit materials, inventory data, video surveillance materials);
lack of evidence that the person responsible has made every effort to avoid or reduce the amount of damage;
the injured party made a claim for compensation (voluntary or involuntary).

From the point of view of the onset of liability, the existence of an agreement on the obligation to compensate for the full amount of damage caused significantly reduces the duration of the procedure and the number of its stages. But even in the absence of a special clause in the labor contract or a separate agreement with the employer, the employee will not be able to avoid full liability (Article 243 of the Labor Code of the Russian Federation) if:

the damage was the result of intent;
the employee allowed the destruction of property in a state of intoxication (alcoholic, narcotic, toxicological);
material damage caused as a result of the offense;
the damage was not done in execution labor functions(This case is not subject to the Labor Code of the Russian Federation and will be considered from the point of view of general legislation - civil or criminal).

In the presence of these conditions for the onset of liability, minors can be brought to it, but only in court, because the law does not provide for the conclusion of agreements on full liability with them, Article 242 of the Labor Code of the Russian Federation. It should be borne in mind that in cases of intentional harm, the Labor Code will not protect even pregnant women.

The principle of liability

The essence of liability labor law is more fully revealed if we highlight the principles of its imposition:

Engagement Principles	essence
Reciprocity	The measure of responsibility for the employee should not be higher than for the employer.
Holding parties liable only as a result of labor relations	Compensation for damage will be considered through the prism of the Labor Code of the Russian Federation only if the parties are united labor contract, and the fact of damage is related to the performance of work duties. If there is no such agreement between the parties, then it will not be about material, but about property damage under the Civil Code of the Russian Federation (the same applies to those who perform work under the GPA).
Guilt	It is possible to oblige the party to restore the lost only if there is irrefutable evidence of the guilt of the actions. The recognition of the employee can also act as confirmation.
Accounting for direct actual damage	The duty of the employer is not only to investigate and prove guilt, but also to determine the amount of destroyed or damaged property in monetary terms.
Possibility of reaching an agreement on the form and terms of repayment of obligations	The guilty party can compensate for the damage both in money and by providing similar serviceable property. The issue of repayment of the established debt in terms of amount, form and terms can be agreed with the employer. The Labor Code of the Russian Federation reserves the right for the latter to refuse the demand for debt.
Justice	It is possible to force to pay for causing material harm, for example, with collective liability, only the one whose participation in this is fully proven. If a person was absent from work that day, then it is impossible to bring him to pay for the damage caused, even if he signed a common paper on full (team) responsibility.

Timing

Issues of material liability are considered within the scope of the provisions of the Labor Code only in the event that the damage was caused as a result of the performance of work duties. Everything that is done outside the company or working hours must be qualified according to the norms of civil and criminal law. However, this does not mean that former employee cannot be held liable after the termination of the working relationship with him.

As an insurance, the employer can use, which provides for the opportunity to apply for compensation a year after the fact of material damage is identified and the perpetrators are identified. This right is also confirmed, which says that the termination of the employment contract does not terminate the right to receive compensation for damage caused during cooperation.

For the employee, the danger lies in the fact that checking the integrity of stocks and property may not occur on the day of dismissal, but much later. Theoretically, each business entity must conduct an inventory annually no later than the end of the year, before compiling the final reporting, Order of the Ministry of Finance No. 49. So the terms for filing claims can stretch up to two years after the dismissal of a specialist.

Employees who, according to the list of the Government, belong to those with whom it is allowed to conclude an agreement on the full liability of the employee, should know that upon dismissal, the employer is obliged to conduct an unscheduled inventory of the site entrusted to the specialist in order to identify shortages. If, according to the results of an extraordinary check, all valuables were available and in good condition, then the financially responsible person can be relatively calm.

The term for applying for compensation for damage is one year from the date of establishing the value of the lost valuables and the perpetrators, Art. 392 of the Labor Code of the Russian Federation.

Target

In addition to the return of the value of stolen or damaged valuables, liability pursues the achievement of a number of other goals:

restoration of the lost (money, property or other agreed method);
educational function - the inevitability of punishment helps the parties to be more attentive to their own obligations under the Labor Code of the Russian Federation;
legal significance - the parties can count on full compensation only if the procedures established by law are observed, otherwise this right will be lost.

limits

Article 242 of the Labor Code of the Russian Federation allows the employer to impose on employees full responsibility for the values entrusted to them. This can be done immediately upon signing an employment contract, in the process of work, draw up a separate agreement or issue an order imposing additional duties on a person.

Essential in this case will be the reservation that only representatives of certain professions from the list of positions related to the maintenance of funds or the preservation of inventory can be held fully liable, Art. 244 of the Labor Code of the Russian Federation. For these purposes, the Ministry of Labor of the Russian Federation, by its Decree No. 85, approved a list of professions and types of work, as well as samples of contracts on full individual and collective liability.

For those with whom the contract is not concluded, the limits of liability are established by Art. 241 of the Labor Code of the Russian Federation - no more than one average earnings, calculated according to the rules of Art. 139 of the Labor Code of the Russian Federation. In addition, Art. 248 of the Labor Code of the Russian Federation limits the period for obtaining even such an amount of compensation in the manner of a simple deduction from the settlement amount - this right can be exercised only within a month from the date of establishing the fact and amount of damage caused. If the deadlines are missed, the employer can recover compensation only through the courts.

The right of the employer to refuse to recover damages from the employee

The circumstances of damage to property or the loss of part of the stock may be taken into account in internal proceedings. To do this, when carrying out measures to establish the amount of damage, it is customary for an employee to require an explanation of his actions (inaction). If justifying moments are found, the employer has the right to refuse the compensation claim in whole or in part, Art. 240 of the Labor Code of the Russian Federation. At the same time, the authorities may be guided by considerations:

a small amount of damage;
life circumstances and material conditions of the offender;
the position of the owner of the property (may be contained, for example, in a collective agreement).

If the responsibilities at a new job are inextricably linked with the need to maintain and store the values of the company, understanding the individual subtleties of the concept of liability will not be superfluous for everyone entering the position. But even if the future specialty is not mentioned in the List of the Ministry of Labor, one should not forget that the obligation to monitor the safety of the employer's property is recorded as one of the main ones in Art. 21 of the Labor Code of the Russian Federation, and full liability can overtake even without an agreement signed on it.

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

The concept and features of liability under labor law

One of the types of liability in labor law is material liability, the subjects of which may be the employee and the employer. The material liability of the employee is one of the means of protecting property and represents the legal obligation of the employee to compensate for the damage caused to him. An employment contract or agreements concluded in writing attached to it, the liability of the parties to this contract may be specified. The contractual liability of the employer to the employee cannot be lower, and the employee to the employer - higher than provided for by the Labor Code or other federal laws (Article 232 of the Labor Code). The material liability of the parties to an employment contract arises for damage caused by one party to the other party as a result of guilty unlawful behavior (action or inaction), unless otherwise provided by the Labor Code or other federal laws. Each party to the employment contract is obliged to prove the amount of damage caused to it.

The employer, in addition to bringing the employee to liability, has the right to simultaneously apply disciplinary measures to him and deprive him of the right to receive bonus payments.

Labor legislation provides for both individual and collective liability of employees.

By regulating the compensation for material damage, labor legislation (Articles 238 - 250 of the Labor Code) pursues the following goals:

a) full or partial compensation for damages;

b) providing educational and disciplinary impact on both the employee and the team;

c) protection of the employee's wages from illegal deductions.

An employee, with the consent of the employer, may voluntarily compensate for the damage caused to the employer in whole or in part, transfer property of equal value to compensate for the damage, or repair the damaged property.

Labor legislation establishes the conditions for the onset of liability, which include:

a) The presence of direct actual damage (Article 238 of the Labor Code). Direct actual damage is 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 or restoration of property (Article 238 of the Labor Code).

The exceptions are cases (Article 277 of the Labor Code), when the calculation of losses is carried out in accordance with the norms provided for by civil law, i.e. taking into account lost income, if the damage was caused by illegal actions of the head of the organization;

b) Illegal behavior of the employee - non-fulfillment of labor duties established by law, internal labor regulations, orders and instructions (written) of the employer. Damage resulting from force majeure, normal economic risk, extreme necessity or necessary defense, as well as the employer’s failure to ensure proper storage conditions for property entrusted to the employee (Article 239 of the Labor Code) cannot be attributed to the employee.

c) The employee's culpability in causing damage. Guilt expresses the mental attitude of a person to the unlawful act committed by him and the result causally conditioned by him. The legislation provides for two forms of guilt: intent (direct or indirect), negligence (frivolity or negligence).

The burden of proving the employee's guilt lies with the employer.

d) Existence of a causal relationship between the act of the worker and the actual damage. The employer is obliged to establish as a result of whose specific actions (inaction) material damage was caused or the degree of participation of each guilty employee.

Thus, material liability is the legal obligation of the employee to compensate, within the limits and in the manner established by labor legislation, the direct actual damage caused by his guilty illegal act to the property of the employer.

Types of liability

Labor legislation provides for two types of liability: full and limited.

Full material liability is an exception to the general rule for the application of material liability and may be applied in cases expressly provided for by federal law.

The limitation of liability is related to salary- the size of the average monthly salary of an employee (Article 241 of the Labor Code) on the day the damage was discovered, based on the calculation for the last 12 months. Limited liability is recognized by labor legislation as the main type of material liability.

Labor legislation defines the cases of the onset of the full liability of the employee, which are affected by the peculiarity of labor duties, the specifics of work and other signs. The conditions for full liability are:

In accordance with the law and labor duties, the employee is liable in full (Article 243 of the Labor Code).

1. In case of shortage of valuables entrusted to the employee on the basis of a special written agreement due to the specifics of the work performed or their receipt under a one-time document (Articles 243, 244, 245 of the Labor Code). In this case, the liability of the employee may come under the following conditions: 1) reaching the age of 18; 2) holding a position or performing work specified in a special list; 3) if there is a written contract.

An agreement on full liability can be concluded only with employees who are directly related to the storage, processing, sale (vacation), transportation or use in the production process of material assets belonging to the employer. The contract on full liability will be additional to the employment contract. In its absence, the full liability of the employee cannot take place.

The full liability of the employee also arises for the lack of valuables received by the employee under one-time documents (power of attorney), when he is involved in the urgent receipt, delivery, transfer of material values.

2. Deliberate infliction of damage (Article 243). The employer must prove the intentional infliction of damage by the employee. Otherwise, the full liability of the employee is not allowed.

3. Causing damage in a state of alcoholic, narcotic or toxic intoxication (Article 243 of the Labor Code). At the same time, the form of guilt, as well as the specialty or profession of the employee, do not matter. The state of intoxication must be documented, i.e., an appropriate certificate medical institution. If the employee refuses to be examined, then the fact of intoxication can be confirmed by witness testimony, timely drawing up of an act at the place of work on the employee being in such a state.

4. Causing damage as a result of criminal acts established by a court verdict (Article 243 of the Labor Code). The legislator emphasizes that it is necessary to have not only the very fact of initiating a criminal case, but also a court verdict, which will prove the criminal nature of the employee's actions. The release of an employee from criminal punishment under an amnesty act does not relieve him of full financial responsibility, since the criminal nature of his actions has been established by a court verdict. In cases of termination of a criminal case at the stage of preliminary investigation, as well as a verdict of not guilty, full liability is not allowed.

5. Causing damage as a result of an administrative offense established by a state body (Article 243 of the Labor Code). An administrative offense is an unlawful, guilty action (inaction) of an individual or legal entity, for which the Code of the Russian Federation on Administrative Offenses or the laws of the constituent entities of the Russian Federation provides for administrative responsibility. In this case, the employer will have the right to bring employees to full liability in the event of a court decision or a decision by the federal labor inspectorate.

6. There has been a disclosure of information constituting a state or other secret protected by law (Article 243 of the Labor Code). An employment contract (Article 57 of the Labor Code) may provide for conditions on non-disclosure of legally protected secrets (state, official, commercial and other).

7. The damage was caused not in the performance of labor duties by the employee (Article 243 of the Labor Code). The employer must prove that the employee did not perform his job duties at the time of the damage and that his behavior was contrary to the interests of the employer.

The concept and procedure for determining the amount of damage

The current labor legislation provides for the possibility of compensation for damage caused to the employer in several ways. It can be: 1) voluntary compensation damage to the employee; 2) compensation for damage by order (order) of the employer; 3) compensation for damage in a judicial proceeding.

Determination of the amount of damage caused can be done in two ways - in general and in a special order.

The general procedure provides for two ways to determine the amount of damage: 1) by actual losses based on market prices in force in the area on the day the damage was caused; 2) based on the value of the property according to the data accounting taking into account the degree of wear and tear of this property. Obviously, the second method will be applied when, taking into account market prices, the amount of damage will be lower than the value of the property according to accounting data. Accounting is an ordered system of collecting, registering and summarizing information in monetary terms about the property, obligations of organizations and their movement through continuous, continuous and documentary accounting of all business transactions. The objects of accounting are the property of organizations, their obligations and business transactions carried out by organizations in the course of their activities. When using accounting data, the amount of damage is documented.

A special procedure applies when:

1) damage to the employer was caused by theft, deliberate damage, shortage or loss of certain types of property and other valuables;

2) the actual amount of damage caused exceeds its nominal amount.

3. Liability of the employer to the employee

Labor legislation protects the interests of employees in the same way as employers in the area of liability. The head of the organization is fully liable to the employee and the organization, regardless of whether an entry about it is included in his employment contract or not.

In the legal literature, there are three groups of cases of liability of the employer to the employee, depending on the violation labor rights employee:

1. Compensation for property damage resulting from violation by the employer of the employee's right to work.

2. Compensation for damage resulting from violation of the employee's right to health protection, to healthy and safe working conditions in connection with the infliction of an industrial injury or occupational disease on him.

3. compensation to the employee for damage caused by the violation by the employer of other rights of the employee in an employment relationship, for example, the right to protect his personal property, in connection with the failure to ensure the safety of the employee's personal belongings during work.

The employer bears material liability to the employee, which is of a property nature (Chapter 38 of the Labor Code) in the following cases:

a) Illegal deprivation of the employee of the opportunity to work (Article 234 of the Labor Code), if the employee did not receive earnings as a result of:

illegal removal of an employee from work, his dismissal or transfer to another job;

non-execution or untimely execution by the employer of the decision of the body for the consideration of labor disputes on the reinstatement of the employee in his previous job;

issuance delays work book, introducing into it an incorrect or inappropriate wording of the reason for the dismissal of an employee;

invited in the order of transfer from another employer, as well as in cases of untimely conclusion of an employment contract due to the fault of the employer. If, as a result of the refusal or untimely conclusion of an employment contract, the employee has a forced absenteeism, then the employer is obliged to compensate him for material damage in relation to the rules that are established for paying for the forced absenteeism of an illegally dismissed person;

other cases of violation by the employer of labor legislation.

b) Damage caused by the employer to the property of the employee (Article 235 of the Labor Code). The employee's application for compensation for damage is sent by him to the employer, who is obliged to consider this application and the corresponding decision within ten days from the date of its receipt. If the employee does not agree with the decision of the employer or has not received a response within the prescribed period, the employee has the right to file a claim with the court. With the consent of the employee, the damage can be compensated in kind.

c) Delays in the payment of wages to an employee (Article 236 of the Labor Code). This provision is new for Russian labor legislation. Violation of the deadline for payment of wages, vacation pay, dismissal payments and other payments due to the employee entails the obligation of the employer to pay (except for these payments) monetary compensation (interest) in the amount of not less than 1/300 of the current refinancing rate of the Central Bank of the Russian Federation from not amounts paid on time for each day of delay after the due date.

d) Compensation for moral damage caused to an employee (Article 237 of the Labor Code). This basis of the employer's liability is also new for the Russian labor legislation. When determining the amount of compensation for non-pecuniary damage, the court takes into account the degree of guilt of the offender and other noteworthy circumstances, takes into account the degree of physical and moral suffering associated with individual features a person who has been harmed (see part 2 of article 151 of the Civil Code).

In the event of a dispute, the fact of causing moral damage to an employee and the amount of its compensation are determined by the court, regardless of the property damage subject to compensation.

One way to regulate professional activity employees are financial penalties. They are designed to punish employees who have committed offenses, which, in turn, have caused material losses for the company. So, the employer needs to be informed about the types of liability both on his part and on the part of his subordinates, as well as on the procedure for its application.

The concept and main types of liability

Liability refers to the need to compensate for material damage caused by one party labor agreement other side. From a legal point of view, such liability is an independent type of penalty, as well as a specific measure of punishment.

The grounds for liability include:

behavior of an employee that violates the labor schedule and the law;
fixing the fact of causing damage by a specific person;
the presence of a causal relationship between the offending action of a subordinate and the infliction of actual material damage;
the presence of an employee's fault.

Any basis for the material liability of an employee or employer must be documented. At the same time, the possible cancellation of the labor agreement due to the infliction of material damage does not exempt the guilty person from compensation for the amount of damage provided for by the Labor Code of the Russian Federation or other legislative acts.

The main types of the category under consideration include:

Also provided additional types material liability of the employee, associated with certain restrictions and protection of the rights of the employed population.

Types of liability of the employer to the employee

Such a violation can be recorded for the employer in the context of non-payment of earnings to the subordinate financial resources. Often, such circumstances occur as a result of the employer limiting the employee's opportunities for the normal performance of his duties. official duties. In particular, the reasons may be:

Unlawful restriction in the work of a subordinate, groundless dismissal or transfer to another position.
Refusal or ignorance by the employer of the need to reinstate an unjustifiably dismissed subordinate when such an obligation is recorded in a court order or at the direction of a state labor inspector.
Delay in the issuance of a work book by the employer to a subordinate, the introduction of false or illegal information about the dismissal of an employee into the specified document.
A number of other situations fixed in the legislation of the Russian Federation.

Also, the head of the company will be subject to similar liability for delaying wages in case of violation of the established deadlines for the issuance of financial resources earned by employees, payment of vacation pay or other payments. Subsequently, the head of the company will need to reimburse compensation for the delay. This means the payment of interest in an amount not less than one three hundredth of the current rate of the Central Bank of the Russian Federation for each day of overdue payment.

The employer is also liable for damage to the personal property of the subordinate:

If the employee after 10 days has not received a response from the employer or received a negative response on the issue of compensation, he has the right to go to court for further proceedings.

Limited type of employee liability

The limited liability of an employee is understood as the existing need of the subject to compensate the employer for the damage caused to his property, however, in the amount not exceeding the maximum established by law. In accordance with the Letter of Rostrud No. 1746/6/1 dated 10/19/2006. a similar maximum is calculated in each individual case individually, based on the average wage of the guilty person. Average earnings, in turn, is calculated on the basis of Art. 241 of the Labor Code of the Russian Federation for three months of labor activity preceding the violation.

The use of limited liability is valid in all cases where an agreement on full liability has not been concluded between the manager and the subordinate.

The most common cases of a limited financial penalty include the loss of tools or working devices, the loss of documents, and negligent damage to the company's property.

The legislator does not provide specific list misdemeanors that could be punished in the same way.

Full financial responsibility of the employee

The full liability of a subordinate is understood as his obligation to compensate the full amount of the damage caused.

Conditions and types of liability are presented in Art. 243 of the Labor Code of the Russian Federation. Such cases include:

illegal act of a subordinate in the course of the performance of his official duties, if full material liability is provided for such groups of employees in labor legislation or other legislative regulations;
upon revealing the fact of shortage of any property that was entrusted to the subject. It is understood that full financial responsibility can only occur if there is an appropriate agreement between the manager and the subordinate. written agreement or with the written consent of the employee on a one-time document;
with a purposeful offending action of a person;
in the case of an employee’s wrongful act who was under the influence of narcotic, alcoholic or other toxic drugs and means;
when an employee inflicts damage with further litigation. In such circumstances, liability arises on the basis of a court verdict, that is, the amount of compensation is determined by the judge;
when causing material damage due to an administrative violation, which was recorded by the relevant state structure;
if the material damage resulted from the dissemination by the subject of confidential information related to the legally protected or the enterprise itself (for example, state or commercial secrets);
if the employee has caused material damage to the company, not being at that time in the performance of his work duties.

Also, special circumstances of full liability are indicated for minor employees. So, if a subordinate is under 18 years old, he can be fully responsible only for the purposeful infliction of damage, causing damage in a state of intoxication with chemical and toxic agents, as well as for material damage caused to the company as a result of a criminal or administrative offense.

Collective liability

Also, the types of liability of the employee and their characteristics include a collective financial penalty. Collective material recovery is understood as a situation when compensation for the damage caused comes from a group of subordinates. Collective responsibility This profile has a number of features:

The procedure for applying liability

The procedure for applying such a penalty has the following features:

The amount of damage caused to the employer is calculated based on the actual loss or damage. Thus, the amounts of damage are calculated on the basis of current market values, while the amount of financial compensation should not be lower than the value of the property according to accounting data, taking into account the degree of deterioration.
Before appointing a person responsible for the damage caused, the manager must inspect the object, determining the amount of the damage itself and the causes of the situation.
In order for the reason to be documented, the employee must draw up a statement with an appropriate explanation.
The procedure for collecting financial resources of a full or limited amount of compensation from a subordinate occurs on the basis of an order from the head of the company. At the same time, such an order is published no later than the first month from the date of the final determination of the amount of harm caused by the subject.
In the event that a month has passed or the subordinate does not admit guilt, thereby refusing to compensate for the losses, the head has the right to go to court. In the future, if such is the order of the judge, the employee will have to compensate for the losses on the basis of a court opinion.
Also, the entity that carried out the action that caused damage to the employer can compensate for the damage in parts. However, this provision for installment compensation must be provided for by a special agreement between the employer and the hired person.
If the employer agrees with compensation in kind from the employee, the subordinate can compensate for the harm caused in a similar way.

Thus, liability is one of the means of punishment for certain unlawful acts. The manager and subordinate need to be informed about the concept and types of liability. This will ensure a high level of knowledge about their rights and obligations in the event that one of the parties causes the corresponding damage.

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