Material liability of the parties to the employment contract of the Labor Code of the Russian Federation. Labor Code of the Russian Federation
The concept of material liability under labor law, conditions for occurrence and its types
There is no definition in labor legislation material liability. In Part 1 of Art. 232 of the Labor Code of the Russian Federation establishes the obligation of a party to an employment contract to compensate for damage caused by it to the other party to this contract.
parties to the employment contract shall be incurred for damage caused by it as a result of culpable unlawful behavior (action or inaction), unless otherwise provided by law (Article 233 of the Labor Code of the Russian Federation).
Guilty illegal behavior in the labor process is a labor offense, a disciplinary offense. Consequently, financial liability is directly related to a labor offense or disciplinary offense, unless otherwise provided by law. It is a possible consequence of a disciplinary offense.
The party to the employment contract who suffered damage is not obliged in market economic conditions, but may demand compensation for damage (Article 240 of the Labor Code of the Russian Federation), which in practice is quite widespread, especially in cases where the amount of damage is small and insignificant. In other words, financial liability occurs subject to the requirement of the injured party to the causer of damage to compensate for it. There is no potential, unrealized liability. Moreover, the legislator limits the time during which it is possible to contact the causer of material damage with a demand to compensate it (Article 248 of the Labor Code of the Russian Federation).
The obligation to compensate for damage to a party to an employment contract arises from the moment it is caused to the other party to the employment contract by force of law (Part 2 of Article 21, Part 2 of Article 22 of the Labor Code of the Russian Federation). But financial liability cannot be defined as a pre-established legal obligation of a party to an employment contract, since it occurs only after the injured party demands compensation for the damage caused.
That is, conditions for the occurrence of financial liability are:
- labor offense, i.e. culpable unlawful behavior (action or inaction) of a party to an employment contract;
- causing damage to the property of a party to an employment contract;
- demand of the injured party to compensate for the damage caused to it.
From these positions financial liability of a party to an employment contract - this is a possible consequence of a labor offense, the exercise by the injured party of its right to demand compensation for damage caused to it by the other party to the employment contract.
The commission of an offense is one of the conditions for the onset of material liability under labor law, which indicates its tortious nature. It only occurs between parties to the employment relationship and can be specified by them in an employment contract or agreements concluded in writing. Wherein contractual liability the employer to the employee cannot be lower, and the employee to the employer - higher than provided by law (Part 2 of Article 232 of the Labor Code of the Russian Federation). This to a certain extent indicates the contractual nature of financial liability. The presence of an employment contract, agreement between the parties to the employment relationship should also be considered conditions for the occurrence of financial liability under labor law.
The legislator differentiates the types of material liability of the parties to an employment contract according to the subject composition and the amount of compensation for damage caused.
By subject composition financial responsibility is classified as the financial responsibility of the employer (Articles 234-237 of the Labor Code of the Russian Federation) and the financial responsibility of the employee (Articles 238-245 of the Labor Code of the Russian Federation), as well as individual and collective (team).
Based on the amount of damage caused, a distinction is made between full (Articles 242-245 of the Labor Code of the Russian Federation) and limited (Article 241 of the Labor Code of the Russian Federation) financial liability.
Employer's liability
The employer, as a party to the employment contract that caused damage to the other party, is also obliged to compensate it in accordance with the Labor Code of the Russian Federation, and he must do this in full.
The employer's financial liability to the employee is regulated by Ch. 38 of the Labor Code of the Russian Federation. In accordance with it, the onset of financial liability of the employer is possible in the following cases.
1. Compensation to an employee for material damage caused as a result of illegal deprivation of his opportunity to work.
Responsibility arises in the amount of the employee’s average earnings for the entire period of his illegal removal from work (in violation of Article 76 of the Labor Code of the Russian Federation), as a result of an illegal transfer (in violation of Articles 72-74 of the Labor Code of the Russian Federation), due to illegal dismissal (in violation of the grounds of Art. 77-84 of the Labor Code of the Russian Federation and the procedure established by law), the employer’s refusal to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee to his previous job (in violation of Articles 389, 396, 357 of the Labor Code of the Russian Federation), as well as in the event of a delay in the issuance of a work book (in violation of Article 62 of the Labor Code of the Russian Federation) or the entry into the work book of an incorrect or non-compliant formulation of the reason for the dismissal of the employee, which prevents employment.
2. Compensation for damage caused to employee property.
Damage caused by the employer to the employee’s property is compensated on the basis of Art. 235 Labor Code of the Russian Federation. The grounds for bringing an employer to financial liability under this article include: damage to clothing during the performance of work duties; loss of items from the wardrobe or in places designated for storage; loss or damage to other personal property that is used in the course of work with the consent or knowledge of the employer. Damage is compensated in full. If the employee agrees, damages may be compensated in kind. The employer is obliged to consider the employee’s application for compensation for damage and make a decision within ten days. If the employee disagrees with the employer's decision, the employee has the right to go to court.
3. Compensation for moral damage caused to an employee by unlawful actions (or inaction) of the employer.
The employer is obliged to compensate in monetary form for moral damage (Article 237 of the Labor Code of the Russian Federation) caused to the employee by unlawful actions (for example, in the case of an illegal transfer, illegal dismissal, in the case of discrimination in the field of labor). Moral harm is physical and moral suffering caused by actions that violate the personal property rights of a citizen or encroach on other intangible benefits belonging to him. The amount of moral damage must be determined by the parties to the employment contract. If the employer refuses to compensate for moral damage voluntarily, the employee has the right to go to court. The presence or absence of property damage does not affect the employee’s right to file a claim for compensation for moral damage.
4. Compensation for damage in case of violation of the established deadline for payment of wages and other payments due to the employee.
In Art. 236 established the rules for the employer’s financial liability to the employee for late payment of wages. In this case, the employer is obliged to pay all amounts of money due to the employee (wages, vacation pay, dismissal payments) with the payment of interest (monetary compensation) in the amount of not less than one three hundredth of the refinancing rate of the Central Bank of the Russian Federation in force at that time for amounts not paid on time for each day of delay, starting from the next day after the due date for payment up to and including the day of actual settlement. The amount of compensation may be increased by collective agreement or employment agreement.
The presence or absence of the employer’s fault in the delay in wages does not matter.
The accrual of interest in connection with late payment of wages does not exclude the employee’s right to index the amounts of delayed wages due to their depreciation due to inflation processes, since such indexation is not an independent measure of the employer’s responsibility, but a technical mechanism for restoring the purchasing power of money not received by the employee on time .
Previously, the employer also provided for financial liability for causing harm to an employee through injury, occupational disease or other damage to health associated with the performance of work duties. Now this type of responsibility has been transferred to the level of compulsory social insurance of workers, in accordance with the Federal Law of July 24, 1998 No. 125-FZ “On compulsory social insurance against industrial accidents and occupational diseases,” and these relations relate to another institution labor law (compulsory social insurance of workers), and compensation for harm to life and health itself falls within the realm of social security law.
Grounds and conditions for the onset of financial liability of employees
The employee’s financial liability is expressed in his obligation to compensate for damage caused to the employer by illegal, guilty actions or inaction in the process of work.
To bring an employee to financial liability, it is necessary to have the general conditions of liability discussed in the first paragraph.
Speaking about financial liability, of course, one should take into account the provisions of such an act of official interpretation as the resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52 “On the application by courts of legislation regulating the financial liability of employees for damage caused to the employer.”
An employee can be held financially liable not for any guilty, illegal action or inaction, but only for that which results in property damage to the employer.
The employee’s financial liability arises regardless of the fact that the employee is brought to disciplinary, administrative or criminal liability.
As a result of bringing an employee to financial responsibility, unfavorable moral and property consequences occur.
Article 238 of the Labor Code of the Russian Federation provides for the employee’s obligation to compensate the employer for direct actual damage caused to him.
Direct actual damage is understood as a real decrease or deterioration in the condition of the employer’s available property (including the property of third parties located at the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs for the acquisition or restoration of property or to make unnecessary payments. We are talking about the employer’s property that belongs to him as property (Article 209 of the Civil Code of the Russian Federation) or is legally owned by him: the right of economic management (Article 294 of the Civil Code of the Russian Federation), operational management (Article 296 of the Civil Code of the Russian Federation), under lease agreements (Article 606 of the Civil Code of the Russian Federation), storage (Article 886 of the Civil Code of the Russian Federation), etc.
An example of the cost of acquiring or restoring property is the purchase or repair of lost or damaged property.
Excessive payments may be penalties paid by the employer for failure to fulfill or improper performance of duties (for example, a fine for a violation of consumer rights that occurred through the fault of the employee). That is, in essence, there is a transfer of responsibility from the employer, who is obliged to pay the sanctions, to the employee, guilty of imposing such sanctions. You just need to remember that fines and penalties applied as a way to ensure the fulfillment of obligations - penalties, as a general rule (unless otherwise provided for in a civil contract), are of an offset nature, which means they are intended to offset the damage caused. But in order for the paid fines and penalties to be assessed as the employer’s expenses aimed at compensating damage to third parties due to the employee’s fault, it is necessary to have a judicial recognition of their offset nature and to establish the employer’s obligation to compensate the counterparty for damage under a civil contract in an amount not less than than the penalty paid, as well as the causal connection between the employee’s action or inaction and the resulting obligation to pay the penalty. Otherwise, the employer's civil liability, in the amount of amounts paid, cannot be recovered from the employee whose violations led to this employer's liability.
A similar situation of transfer of responsibility may be associated with wages paid by the employer to the employee during the illegal deprivation of his opportunity to work, based on the decision of the body considering labor disputes. This may also include amounts paid to the employee for delayed wages, and compensation for moral damage caused to him that occurred as a result of illegal actions and orders of the manager. Again, payments are made by the employer, but in a regressive manner redirects them to the manager responsible for the additional costs.
Financial liability in the amount of direct actual damage is borne by all employees, i.e. persons in labor relations with employers, regardless of their organizational and legal form, as well as after dismissal for damage caused by them during the period of work. The dismissal of an employee does not mean that he has ceased to be subject to financial liability.
In Art. 239 of the Labor Code provides for circumstances that exclude the financial liability of an employee.
The Labor Code includes the following circumstances that exclude the financial liability of an employee:
- force majeure;
- normal business risk;
- extreme necessity or necessary defense;
- failure by the employer to fulfill obligations to ensure proper conditions for storing property entrusted to the employee.
Current legislation has established that, as a general rule, an employee is liable for damage caused to the employer in the amount of his average earnings. The amount of this earnings is determined upon discovery of the damage. Calculation of average earnings is carried out according to the rules of Art. 139 Labor Code of the Russian Federation.
Employees bear financial liability in the amount of their average monthly salary if there are no grounds for imposing liability on them in full.
Full financial liability can be assigned to an employee only in cases directly provided for by law or on the basis of an agreement on financial liability signed in cases provided for by law.
Minors can be brought to full financial responsibility only in certain cases, these are:
- if the damage to the employer’s property was caused by them intentionally;
- if the damage was caused while under narcotic, toxic or alcoholic intoxication;
- if the damage was caused as a result of a crime or administrative offense committed by a minor.
An agreement on financial liability is not concluded with minor employees.
In all other cases, minors bear financial liability in an amount not exceeding their average earnings.
For adult workers, the Labor Code of the Russian Federation defines in Art. 243 is an exhaustive list of cases of full financial responsibility of an employee, regardless of whether he signed an agreement on full financial responsibility or not.
The employee becomes fully financially liable in the following cases.
1. If, in accordance with the Labor Code or other federal law, the employee is assigned full financial responsibility.
So, in full in accordance with Art. 277 of the Labor Code of the Russian Federation, the head of the organization bears financial responsibility.
In accordance with Art. 68 of the Federal Law of 07.07.2003 No. 126-FZ “On Communications” 1 employees of telecom operators are financially liable to their employers for the loss or delay in delivery of all types of postal and telegraph items, damage to the attachments of postal items that occurred through their fault during the execution of their official duties, in the amount of the declared value (i.e. in full), unless another measure of liability is provided for by the relevant federal law.
2. Lack of valuables entrusted to the employee on the basis of a special written agreement or received by him under a one-time document.
Written agreements on full individual or collective (team) financial liability, i.e. on compensation to the employer for damage caused in full for the shortage of property entrusted to employees, are concluded with employees who have reached the age of eighteen and directly service or use monetary, commodity valuables or other property (Articles 244, 245 of the Labor Code of the Russian Federation). The list of positions and works filled or performed by employees with whom the employer can enter into written agreements on full individual financial responsibility for shortages of entrusted property was approved by Decree of the Ministry of Labor and Social Development of the Russian Federation dated December 31, 2002 No. 85. The same resolution approved standard forms of agreements on full liability.
The employee bears full financial responsibility for the shortage of material assets received by him under a one-time power of attorney or other one-time documents. Of course, receiving material assets without the employee’s consent is impossible; in addition, before issuing an employee a one-time power of attorney or other similar document, the administration must familiarize him with the rules for accepting and storing material assets, as well as create all the necessary conditions to ensure that the employee completes the task without prejudice to received or entrusted material assets.
For the application of liability for shortages, the form of fault is not essential. The very fact that the employee does not have the values entrusted to him is important. In this case, the shortage must be realistically established and recorded with appropriate documents.
3. Intentional causing of damage.
In this case, the direction of intent matters. When performing these actions, the employee must be aware of their illegality, foresee the possibility or inevitability of property damage, as well as desire the occurrence of such consequences or consciously allow the possibility of their occurrence or be indifferent to them. Such actions by an employee may entail not only full financial liability, but also the dismissal of management employees in accordance with clause 10 of Art. 81 Labor Code of the Russian Federation.
4. Causing damage while under the influence of alcohol, drugs or toxic substances.
Such a condition refers to aggravating circumstances of the employee in accordance with criminal and administrative legislation. Full financial liability in the event of damage caused while intoxicated occurs regardless of whether the employee had the intent to cause damage or whether the damage was caused by negligence. This is due to the fact that the very fact of appearing at work in a state of intoxication is a gross violation of labor discipline. The fact that the employee is in a state of alcoholic, toxic or drug intoxication must be established. It is advisable to send the employee for drug testing. If this is impossible for some reason, then it is necessary to draw up an act in which all the signs of relevant intoxication are described in detail.
5. Causing damage as a result of criminal actions of an employee.
The fact of causing damage and the guilt of the person who caused the damage must be established by a court verdict. Therefore, it cannot be a basis for bringing an employee to full financial liability, for example, the initiation of a criminal case against him, or the conduct of investigative actions in this case, or the removal of the employee from work, etc.
An employee who was acquitted for lack of corpus delicti or the case was terminated on this basis at the preliminary investigation stage cannot be brought to full financial liability.
Considering that the presence of a court conviction is a prerequisite for the possible bringing of an employee to full financial liability under clause 5 of Part 1 of Art. 243 of the Labor Code of the Russian Federation, the termination of a criminal case at the stage of preliminary investigation or in court, including on non-rehabilitative grounds (in particular, due to the expiration of the statute of limitations for criminal prosecution, as a result of an amnesty act), or an acquittal by the court cannot serve as a basis for bringing a person to full financial responsibility.
If a guilty verdict was passed against an employee, but as a result of the amnesty act he was fully or partially released from punishment, such employee may be held fully liable for damage caused to the employer on the basis of clause 5, part 1, art. 243 of the Labor Code of the Russian Federation, since there is a court verdict that has entered into legal force, which established the criminal nature of his actions.
6. Causing damage as a result of an administrative violation, if established by the relevant government body.
An administrative offense (offense) is an unlawful, guilty action (inaction), for which administrative liability is provided for in accordance with the Code of the Russian Federation on Administrative Offenses or the laws of the constituent entities of the Russian Federation on administrative offenses. The list of bodies authorized to consider cases of administrative offenses is determined by the Code of the Russian Federation on Administrative Offenses or the laws of the constituent entities of the Russian Federation on administrative offenses. Taking this into account, an employee may be brought to full financial liability if, based on the results of consideration of a case of an administrative offense, a judge, body, or official authorized to consider cases of administrative offenses issued a decision imposing an administrative penalty, since in this case the fact that the person committed an administrative offense offense has been established.
If an employee was released from administrative liability for committing an administrative offense due to its insignificance, about which, based on the results of the consideration of the administrative offense case, a decision was made to terminate the administrative offense proceedings, and the employee was given an oral reprimand, such employee may also be subject to be imposed financial liability in the full amount of the damage caused, since if the administrative offense is insignificant, the fact of its commission is established, and all the elements of the offense are identified and the person is released only from administrative punishment.
Since the expiration of the statute of limitations for bringing to administrative responsibility or the issuance of an amnesty act, if such an act eliminates the application of administrative punishment, are an unconditional basis excluding proceedings in a case of an administrative offense (clauses 4, 6 of Article 24.5 of the Code of the Russian Federation on Administrative Offences), in these situations, the employee cannot be brought to full financial liability under clause 6, part 1 of the Code. 243 of the Labor Code of the Russian Federation, however, this does not exclude the employer’s right to demand full compensation for damages from this employee on other grounds.
7. Causing damage by disclosing information constituting a secret protected by law.
The obligation to keep official and commercial secrets rests with the employee if this is provided for in the employment contract. Information constitutes an official or commercial secret in the case when the information has actual or potential commercial value due to its unknownness to third parties, there is no free access to it on a legal basis, and the owner of the information takes measures to protect its confidentiality. The list of information that cannot constitute a trade secret is established by Decree of the Government of the RSFSR dated December 5, 1991 No. 35 “On the list of information that cannot constitute a trade secret.”
In accordance with this resolution, a commercial secret of an enterprise and an entrepreneur cannot be:
- constituent documents (decision to create an enterprise or founders’ agreement) and the Charter;
- documents giving the right to engage in entrepreneurial activity (documents confirming the fact of making entries about legal entities in the Unified State Register
- legal entities, certificates of state registration of individual entrepreneurs, licenses, patents);
- information on established forms of reporting on financial and economic activities and other information necessary to verify the correctness of calculation and payment of taxes and other obligatory payments to the state budget system;
- and other information established by law.
At an enterprise, the list of information that constitutes a secret protected by law must be determined by an order for the enterprise, which must be brought to the attention of the employee against signature. The absence in the employment contract of an employee’s obligation not to disclose legally protected secrets and failure to comply with the previously listed requirements will make it impossible to bring the employee to full financial liability on this basis.
In addition, state secrets, personal data and other confidential information are also protected by law.
It should be emphasized that in all cases of bringing an employee to full financial liability, we can only talk about compensation for direct actual damage, since recovery from an employee (including the manager, his deputy, the chief accountant of the organization) of lost income (lost profits) is not covered by labor legislation provides. And the disclosure of trade secrets is more often associated with a decrease in the likelihood of making a profit due to the fact that this information may become known to competitors.
8. If the damage was caused not while the employee was performing his official duties.
Full financial liability occurs in this case, regardless of when such damage is caused: during working hours, after its end or before the start of work. When determining the amount of material damage caused by workers and employees by unauthorized use for personal purposes of technical means during non-working hours, belonging to enterprises, institutions, organizations with which they have labor relations, it must be assumed that such damage as caused not in the course of work labor (official) duties may be subject to compensation using civil law. In these cases, the damage is compensated in full, including income not received by the enterprise, institution, or organization from the use of technical means. This may be due to the fact that when the employee is not performing his job duties, there is no employment relationship with the employer and the damage is of a civil nature, and the taking of property is comparable to the theft of a vehicle without the intent of theft. But other circumstances, for example, the opportunity for an employee to use the employer’s property for personal purposes during working hours, are also considered as causing damage not in the performance of duties, but since the damage is caused by the employee during working hours, liability must arise according to the rules of labor legislation, i.e. . excluding lost income.
According to Art. 243 of the Labor Code of the Russian Federation, financial liability in the full amount of damage caused to the employer can be established by an employment contract concluded with the head of the organization, deputy heads, and chief accountant. This is quite justified, since management employees are vested with great powers and manage the material resources of the organization. They must bear higher responsibility, including financial responsibility. In accordance with Art. 277 of the Labor Code of the Russian Federation, the head of the organization bears full financial responsibility for direct actual damage caused to the organization.
The concept and conditions for the onset of material liability of the parties to an employment contract
Financial liability of the employer to the employee.
Material liability of the employee.
Determination of the amount of damage caused and the procedure for collecting damages.
1. The concept and conditions for the onset of material liability of the parties to an employment contract
The material liability of the parties to an employment contract is a type of legal obligation of one of the parties (employee or employer) to compensate for real property damage caused by it to the other party as a result of a culpable unlawful failure to fulfill labor duties.
Bringing financial liability to any of the parties to the employment contract is possible only if certain conditions are met:
presence of damage;
presence of guilt;
illegality of action or inaction;
a cause-and-effect relationship between the unlawful behavior of one of the parties and the damage caused to the other party.
Damage is understood as those losses that one party caused through its actions (or inaction) to the other party to the employment contract. Each party to an employment contract (employee or employer), when addressing the other party with claims for compensation for damage, is obliged to prove the amount of damage caused to it with documents.
A causal connection must also be established between the material damage caused and the actions (inaction) of the guilty party (i.e. the damage caused must be the result of the party’s behavior and not any other circumstances), and the behavior itself must be unlawful, i.e. . violating any norms of law, employment contract or legal acts.
Grounds for holding parties to an employment contract financially liable
Exception: Art. 1079 of the Civil Code of the Russian Federation, Legal entities and citizens whose activities are associated with an increased danger to others... are obliged to compensate for harm caused by a source of increased danger, unless they prove that the harm arose as a result of force majeure or the intent of the victim.
The following types of financial liability are distinguished:
employer's financial liability;
financial liability of the employee (individual or collective, full or limited).
2. Financial liability of the employer to the employee
The employer is obliged to compensate the employee for the earnings he did not receive in all cases of illegal deprivation of his opportunity to work. Such an obligation, in particular, arises if earnings are not received as a result of:
illegal removal of an employee from work, his dismissal or transfer to another job;
the employer’s refusal to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee to his previous job;
delay by the employer in issuing a work book to an employee, entering into the work book an incorrect or non-compliant formulation of the reason for the dismissal of the employee (Article 234 of the Labor Code of the Russian Federation).
An employer who causes damage to an employee's property shall compensate for this damage in full. The amount of damage is calculated at market prices in force in the given area on the day of compensation for damage.
If the employee agrees, damages may be compensated in kind.
The employee's application for compensation for damage is sent to the employer. The employer is obliged to consider the received application and make an appropriate decision within ten days from the date of its receipt. If the employee disagrees with the employer’s decision or does not receive a response within the prescribed period, the employee has the right to go to court (Article 235 of the Labor Code of the Russian Federation).
If the employer violates the established deadline for payment of wages, vacation pay, dismissal payments and other payments due to the employee, the employer is obliged to pay them with interest (monetary compensation) in the amount of not less than one three hundredth of the refinancing rate of the Central Bank of the Russian Federation in force at that time from unpaid amounts on time for each day of delay starting from the next day after the due date for payment up to and including the day of actual settlement. The amount of monetary compensation paid to an employee may be increased by a collective agreement or employment contract. The obligation to pay the specified monetary compensation arises regardless of the employer’s fault (Article 236 of the Labor Code of the Russian Federation).
Moral damage caused to an employee by unlawful actions or inaction of the employer is compensated to the employee in cash in amounts determined by agreement of the parties to the employment contract.
In the event of a dispute, the fact of causing moral damage to the employee and the amount of compensation for it are determined by the court, regardless of the property damage subject to compensation (Article 237 of the Labor Code of the Russian Federation).
3. Material liability of the employee
The employee’s financial liability is understood as his obligation to compensate for damage caused to the employer, regardless of the form of ownership (LLC, OJSC, CJSC, unitary enterprise, etc.). Moreover, only damage caused by unlawful actions or inaction of the employee is subject to compensation.
Labor legislation provides for two types of employee liability:
limited, i.e. liability indemnified within certain (predetermined limits);
complete, i.e.
such liability when damage is compensated in full without any restrictions.
The employee is obliged to compensate the employer for direct actual damage caused to him. Lost income (lost profits) cannot be recovered from the employee.
Direct actual damage is understood as a real decrease in the employer’s available property or deterioration in the condition of said property (including property of third parties located at the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to make costs or excessive payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties (Article 238 of the Labor Code of the Russian Federation).
The employee's financial liability is excluded in cases of damage due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer's failure to fulfill the obligation to provide adequate conditions for storing property entrusted to the employee (Article 239 of the Labor Code of the Russian Federation).
The employer has the right, taking into account the specific circumstances in which the damage was caused, to fully or partially refuse to recover it from the guilty employee. The owner of the organization's property may limit the specified right of the employer in cases provided for by federal laws, other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation, regulatory legal acts of local government bodies, and the constituent documents of the organization (Article 240 of the Labor Code of the Russian Federation).
For damage caused, the employee bears financial liability within the limits of his average monthly earnings, unless otherwise provided by this Code or other federal laws (Article 241 of the Labor Code of the Russian Federation).
The employee’s full financial liability consists of his obligation to compensate the direct actual damage caused to the employer in full.
Employees under the age of eighteen bear full financial liability only for intentional damage, for damage caused while under the influence of alcohol, drugs or other toxic substances, as well as for damage caused as a result of a crime or administrative offense (Article 242 of the Labor Code of the Russian Federation) .
Financial liability in the full amount of damage caused is assigned to the employee in the following cases:
1) when, in accordance with the Labor Code or other federal laws, the employee is held financially liable in full for damage caused to the employer during the performance of the employee’s job duties;
2) shortage of valuables entrusted to him on the basis of a special written agreement or received by him under a one-time document;
3) intentional infliction of damage;
4) causing damage while under the influence of alcohol, drugs or other toxic substances;
5) damage caused as a result of the employee’s criminal actions established by a court verdict;
6) damage caused as a result of an administrative violation, if established by the relevant government body;
7) disclosure of information constituting a secret protected by law (state, official, commercial or other), in cases provided for by federal laws;
8) damage was caused while the employee was not performing his job duties.
Financial liability in the full amount of damage caused to the employer can be established by an employment contract concluded with the deputy heads of the organization, the chief accountant (Article 243 of the Labor Code of the Russian Federation).
Written agreements on full individual or collective (team) financial liability, that is, on compensation to the employer for damage caused in full for the shortage of property entrusted to employees, can be concluded with employees who have reached the age of eighteen and directly service or use cash, commodity values or other property (Article 244 of the Labor Code of the Russian Federation).
Lists of works and categories of workers with whom these contracts can be concluded, as well as standard forms of these contracts, are approved in the manner established by the Government of the Russian Federation.
When employees jointly perform certain types of work related to the storage, processing, sale (release), transportation, use or other use of valuables transferred to them, when it is impossible to differentiate the responsibility of each employee for causing damage and to conclude an agreement with him on compensation for damage in full, collective (team) financial liability may be introduced.
A written agreement on collective (team) financial liability for damage is concluded between the employer and all members of the team (team).
Under an agreement on collective (team) liability, valuables are entrusted to a predetermined group of persons, who are assigned full financial responsibility for their shortage. To be released from financial liability, a member of a team (team) must prove the absence of his guilt.
In case of voluntary compensation for damage, the degree of guilt of each member of the team (team) is determined by agreement between all members of the team (team) and the employer. When recovering damages in court, the degree of guilt of each member of the team (team) is determined by the court.
Determination of the amount of damage caused and the procedure for collecting damages
Determination of the amount of damage caused: the amount of damage caused to the employer in the event of loss and damage to property is determined by actual losses, calculated on the basis of market prices prevailing in the area on the day the damage was caused, but not lower than the value of the property according to accounting data, taking into account the degree of wear and tear of it property.
Federal law may establish a special procedure for determining the amount of damage to be compensated caused to the employer by theft, intentional damage, shortage or loss of certain types of property and other valuables, as well as in cases where the actual amount of damage caused exceeds its nominal amount (Article 246 of the Labor Code RF).
Procedure for collecting damages: recovery from the guilty employee of the amount of damage caused, not exceeding the average monthly salary, is carried out by order of the employer. The order can be made no later than one month from the date of final determination by the employer of the amount of damage caused by the employee.
If the month period has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer, and the amount of damage caused to be recovered from the employee exceeds his average monthly earnings, then recovery can only be carried out by the court.
If the employer fails to comply with the established procedure for collecting damages, the employee has the right to appeal the employer’s actions in court.
An employee who is guilty of causing damage to the employer may voluntarily compensate for it in whole or in part. By agreement of the parties to the employment contract, compensation for damage by installments is allowed. In this case, the employee submits to the employer a written obligation to compensate for damages, indicating specific payment terms. In the event of dismissal of an employee who gave a written commitment to voluntarily compensate for damage, but refused to compensate for the specified damage, the outstanding debt is collected in court.
With the consent of the employer, the employee may transfer equivalent property to compensate for the damage caused or repair the damaged property.
Compensation for damage is made regardless of whether the employee is brought to disciplinary, administrative or criminal liability for actions or inactions that caused damage to the employer (Article 248 of the Labor Code of the Russian Federation).
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Responsibility of the parties to the employment contract
In accordance with the Constitution of the Russian Federation, labor protection and health of people (Article 7), recognition and protection of private, state, municipal and other forms of property (Article 8) are among the fundamentals of the constitutional system.
According to Article 37 of the Constitution of the Russian Federation, the most important rights and freedoms of man and citizen are the right of everyone to freely dispose of their ability to work, to choose their type of activity and profession, as well as the right of everyone to work in conditions that meet safety and hygiene requirements, and to be protected from unemployment.
These provisions of the Constitution of the Russian Federation comply with the requirements of the Universal Declaration of Human Rights (Article 23), approved and proclaimed by the General Assembly of the United Nations on December 10, 1948, a number of other international legal acts in the field of labor, as well as the Declaration of the Rights and Freedoms of Man and Citizen ( Art. 23), adopted by the Supreme Council of the RSFSR on November 22, 1991.
In relation to the parties to the employment contract (employee and employer), the above constitutional provisions are developed in acts of labor legislation. Thus, according to Article 2 of the Labor Code of the Russian Federation, every employee has the right to working conditions that meet safety and hygiene requirements, and to compensation for damage caused by damage to health in connection with work; in turn, one of the main responsibilities of an employee is to take care of the employer’s property.
If, as a result of improper performance by an employee or employer of their duties, material damage is caused to the other party to the employment agreement (contract), then it is subject to compensation.
Compensation for damage is an obligation that arises from one of the parties to an employment agreement (contract) in relation to the other party. The contract itself does not provide for such an obligation, but it is a consequence of the parties to this contract improperly fulfilling their obligations in the sphere of labor.
The basis for imposing financial liability on a party to an employment agreement (contract) is the unlawful and culpable infliction of damage by it on the other party to this agreement, unless otherwise provided by law.
The material liability of the parties to an employment agreement (contract) consists of the obligation of one of its parties to compensate, in accordance with the law, for material damage caused by it to the other party to this agreement.
As a general rule, the person who caused the harm is released from compensation for harm if he proves that the harm was not caused through his fault. The law may provide for compensation for harm even in the absence of the fault of the harm-doer. These include, for example, cases of harm caused by a source of increased danger, the owner of which is liable regardless of guilt (Article 1079 of the Civil Code of the Russian Federation). There are also other cases of deviation from the principle of guilt in the current legislation: for harm caused by a citizen declared incompetent, his guardian or the organization obligated to supervise him is responsible, unless they prove that the harm arose not through their fault (Article 178 of the Civil Code of the Russian Federation ). The guilt of the guardian and the relevant organizations is expressed in their failure to properly monitor the incapacitated at the time of harm.
Damage caused by lawful actions is subject to compensation only in cases provided for by law. For example, harm caused in a state of extreme necessity, that is, to eliminate a danger threatening the causer of harm or other persons, if this danger under the given circumstances could not be eliminated by other means, although legal, is subject to compensation to the victim (Article 1067 of the Civil Code RF).
Damage caused in a state of necessary defense is not subject to compensation, unless its limits were exceeded (Article 1066 of the Civil Code of the Russian Federation).
Also, damage caused by a citizen who is unable to understand the meaning of his actions or manage them is not subject to compensation (Article 1078 of the Civil Code of the Russian Federation).
1 . Employees are obliged to treat the organization’s property with care and take measures to prevent damage. Materialresponsibility of the parties to an employment contract is the obligation of one of the parties to compensate, in accordance with the law, for material damage caused by it to the other party to this contract.
The legislation provides for two types of liability:
1) the employee’s financial liability to the employer;
2) the financial liability of the employer to the employee.
Recognizing the legal equality of the parties to an employment agreement (contract), the legislation takes into account that the employer:
1) economically is always stronger than an individual worker;
2) organizes the labor process and, in connection with this, bears responsibility for any adverse consequences that may arise;
3) as the owner of the property, he bears the burden of its maintenance and the risk of accidental death or accidental damage.
On the other hand, legislation proceeds from the fact that the main value of a person is his physical and mental ability to work, which he can realize in various legal forms, but primarily by concluding an employment agreement (contract).
The foregoing predetermines the differences between the two types of responsibility. An employee’s financial liability is an independent type of liability under labor law and occurs regardless of whether he is brought to disciplinary, administrative or criminal liability for the damage he has caused (Article 248 of the Labor Code of the Russian Federation). It does not exclude the possibility of applying other measures of material coercion to the employee. For example, a fine imposed by specially authorized state bodies.
The employee compensates for damage caused to the employer's property. The latter compensates the employee for damage incurred in connection with the unlawful deprivation of his opportunity to perform a labor function and receive wages stipulated by the employment agreement (contract), or harm caused to the employee’s health.
In the event of material damage caused to the employer, the employee is obliged to compensate for direct actual damage caused to the employer (meaning a real decrease or deterioration in the employer’s available property or deterioration in the condition of this property, including the property of third parties located at the employer, if the employer is responsible for the safety of this property, and also the need for the employer to incur costs for the acquisition or restoration of property) (Article 238 of the Labor Code of the Russian Federation). The employee bears financial responsibility for direct actual damage, both directly caused by him to the employer, and incurred by the employer as a result of compensation for damage to other persons. The employee is liable for damage caused primarily due to negligent, unprofessional or deliberately dishonest performance of his duties.
For damage caused, the employee bears financial liability within the limits of his average monthly earnings, unless otherwise provided by the Code or other federal laws. (Article 241 of the Labor Code of the Russian Federation) Labor legislation provides full And limitedmaterialresponsibility.
The new Labor Code retained the concept of “full financial responsibility” (Article 242 of the Labor Code of the Russian Federation). Under full material responsibility the employee is understood to be obliged to compensate the damage caused to the employer in full. It comes when
The employee is charged with financial responsibility in full for damage caused to the employer during the performance of the employee’s job duties;
Ш a shortage of valuables entrusted to the employee on the basis of a special written document or received by him under a one-time document was identified;
The employee caused harm intentionally;
The damage was caused by an employee who was intoxicated (alcohol, drugs, toxic);
The damage was caused by the criminal actions of the employee established by a court verdict;
The damage was caused as a result of an administrative violation, if this is established by the competent government agency;
The employee disclosed information constituting an official, commercial or other secret (in cases provided for by federal laws);
The damage was caused by the employee not while performing his job duties.
Full financial liability may be provided for in an employment contract concluded by the employer with the head of the organization, with deputy managers, and the chief accountant. Underage workers who, as a rule, do not have a high professional level, according to the Labor Code, are obliged to compensate the employer for damage only if it was caused intentionally or as a result of being at work in a state of alcohol, drug or toxic intoxication, or as a result of committing a crime or an administrative offense (Article 242 of the Labor Code of the Russian Federation). A written agreement on full financial responsibility can be concluded only by an employee who has reached the age of majority, and in the event that the position he holds or the work he performs is directly related to the storage, processing, and use in the production process of the valuables transferred to him. Lists of works and categories of workers with whom such contracts can be concluded, as well as their standard forms, are approved in the manner established by the Government of the Russian Federation.
Limited responsibility consists of the employee’s obligation to compensate for damage within the limits provided by law. This is part of the worker's wages. Damage exceeding a predetermined limit cannot be recovered from the employee.
Part 1 of Article 119 of the Labor Code limits the financial liability of an employee to the average monthly salary.
This is the main limit of workers' financial liability. As a general rule, for damage caused to an enterprise, institution, or organization during the performance of labor duties, employees through whose fault the damage was caused bear financial liability in the amount of direct actual damage, but not more than their average monthly earnings, except in cases where the law provides otherwise limits of financial liability.
Collective ( brigade ) material responsibility involves the conclusion of an agreement between the employer and the members of the team in cases where all members of the team perform work related to the storage, processing, sale (vacation), transportation, use or other use of the valuables transferred to them jointly, and to conclude an agreement on liability (and compensation for damage in full) with each member of the team personally and it is impossible to differentiate the responsibility of each employee for causing damage to the employer. An agreement on collective (team) financial liability is concluded in writing with employees who have reached the age of 18 and directly service or use monetary, commodity valuables or other property. A written agreement on collective liability for damage is concluded between the employer and all members of the team (team). According to it, valuables are entrusted to a predetermined group of persons, who are assigned full financial responsibility for their shortage. To be released from financial liability, a team member must prove the absence of his guilt. In case of voluntary compensation for damage, the degree of guilt of each member of the team (team) is determined by agreement between all members of the team and the employer. When recovering damages in court, the degree of guilt of each member of the team (team) is determined by the court.
As a general rule, an agreement on his individual material responsibility .
2 . The financial liability of a party to an employment contract arises for damage caused by it to the other party to this contract as a result of its culpable unlawful behavior (action or inaction), unless otherwise provided by the Labor Code or other federal laws. In this case, each party is obliged to prove the amount of damage caused to it. Labor law does not allow the recovery from an employee of the income that the employer could have received, but did not receive due to the employee’s incorrect actions (inaction). For example, it is impossible to recover from a factory worker who committed absenteeism damages caused by machine downtime. This, in particular, demonstrates the protection of employee wages by labor legislation. According to civil law (Article 15 of the Civil Code of the Russian Federation), losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (real damage), as well as lost income that the person has received would have been under normal conditions of civil circulation, if his right had not been violated (lost profit). In this case, harm caused to the person or property of a citizen, as well as harm caused to the property of a legal entity, is subject to compensation in full by the person who caused the harm. Only actual damage is compensated. In this regard, for example, financial liability for the loss of a document arises only if it cannot be restored within the required time frame, and its absence causes property damage to the employer. It is also impossible to hold employees financially liable for counting and other errors made during an inventory carried out in the prescribed manner to verify the actual presence of valuables, unless they resulted in actual damage. There is no real damage even if, for example, payment was made for the work actually performed to persons who worked without the appropriate registration.
The law establishes that the employee is financially responsible for damage caused through his fault. Thus, according to labor law, an employee reimburses straight valid damage at availability the following mandatory conditions:
1. illegality of the employee’s behavior;
2. causal connection between the employee’s behavior and the resulting damage;
3. the employee’s guilt in causing the damage.
Such behavior of an employee is unlawful when he does not fulfill his labor duties established by laws, government regulations, internal labor regulations, orders and instructions of the administration. Labor legislation excludes employee liability for damage that occurs as a result of normal production and economic risks. Such a risk is possible, for example, when making informed management decisions, both in the sphere of production and in the sphere of circulation of values.
Employees bear financial responsibility only for the damage they cause (Article 238 of the Labor Code of the Russian Federation). Liability arises only for damage that is an objective consequence of the employee’s actions (inaction). To establish such a connection, it is necessary to study the actual circumstances and identify the causes of damage. Employees are liable for damages both caused directly to the employer and those incurred as a result of compensation for damage caused to third parties (recourse liability). A legal entity or citizen compensates for damage caused by its employee in the performance of labor duties. In this case, employees are recognized as citizens performing work on the basis of an employment contract, as well as citizens performing work under a civil contract, if they acted on the instructions of the relevant legal entity or citizen and under his control over the safe conduct of work. A person who has compensated for damage caused by another person has the right of recourse (recourse) to another person in the amount of compensation paid, unless a different amount is established by law. However, according to the rules of labor legislation, only employees who were performing work on the basis of an employment contract at the time of causing damage are liable in recourse.
Financial liability is assigned to the employee provided that the damage was caused through his fault. Guilty is an unlawful act committed intentionally or through negligence. As a general rule, the employer is obliged to prove the employee’s guilt. According to Article 232 of the Labor Code of the Russian Federation, the party to the employment contract (employer or employee) who caused damage to the other party compensates for this damage in accordance with the Labor Code of the Russian Federation and other federal laws. An employment contract may specify the financial responsibility of the parties to this contract. At the same time, the contractual liability of the employer to the employee cannot be lower, and the employee to the employer higher, than provided for by the Labor Code of the Russian Federation or other federal laws. Termination of an employment contract after damage has been caused does not entail the release of the party to this contract from financial liability provided for by the Labor Code or other federal laws.
3 . The procedure for an employer to recover compensation for damage caused to him in accordance with the Labor Code involves a number of stages:
Ш Carrying out an audit to identify specific amounts of losses;
Ш Identification of the reasons that led to losses; Receiving from the employee who is responsible for the fact that the employer suffered certain material losses, a written explanation of the reasons for the incident; the employee has the right to familiarize himself with all inspection materials and appeal them in the prescribed manner.
Ш In the case of collective financial responsibility (in accordance with the concluded agreement), obtaining evidence from a member of the team (team) who insists on the absence of his guilt.
Article 248 of the Labor Code of the Russian Federation determines ordercollectiondamage. Recovery from the guilty employee of the amount of damage caused, not exceeding the average monthly earnings, is carried out by order of the employer. The order can be made no later than one month from the date of final determination by the employer of the amount of damage caused by the employee. If the monthly period has expired or the employee does not agree to voluntarily compensate for the damage, and the amount of damage caused to be recovered from the employee exceeds his average monthly earnings, then recovery is carried out in court. An employee who is guilty of causing damage to the employer may voluntarily compensate for it in whole or in part. By agreement of the parties to the employment contract, compensation for damage by installments is allowed. In this case, the employee submits to the employer a written obligation to compensate for damages, indicating specific payment terms. With the consent of the employer, the employee may transfer equivalent property to compensate for the damage caused or repair the damaged property. Compensation for damages is made regardless of whether the employee is brought to disciplinary, administrative or criminal liability for actions or inactions that caused damage to the employer.
The employee is obliged to reimburse the costs incurred by the employer when sending him to training at the expense of the employer, in the event of dismissal without good reason before the expiration of the period stipulated by the employment contract or agreement on training the employee at the expense of the employer. The judicial procedure for compensation for damage is applied if the amount of damage to be recovered from the employee exceeds his average monthly earnings or if the employer missed the specified two-week period for issuing an order (instruction) to recover from the employee an amount not exceeding his average monthly earnings. For an employer to go to court, a one-year period has been established from the date of discovery of the damage (Article 329 of the Labor Code of the Russian Federation). The day of discovery of damage should be considered the day when a higher authority in the order of subordination became aware of the existence of damage caused by the employee. In accordance with Article 250 of the Labor Code of the Russian Federation, the body for the consideration of labor disputes can, taking into account the degree and form of guilt, the financial situation of the employee and other circumstances, reduce the amount of damage to be recovered from the employee. However, this is unacceptable if the damage was caused by a crime committed for personal gain. Bringing a team (team) to liability is carried out by the administration after a thorough check of the causes of damage, taking into account written explanations provided by team members, and, if necessary, also the opinions of specialists.
Team members are exempt from compensation for damage if it is established that the damage was not caused through their fault, or specific culprits of the damage caused from among the team members are identified.
Damage subject to compensation caused by a team (team) to an enterprise is distributed among the members of this team (team) in proportion to the monthly tariff rate (official salary) and the actual time worked for the period from the last inventory to the day the damage was discovered.
Article 246 of the Labor Code of the Russian Federation defines size caused damage, caused to the employer due to loss and damage to property, is determined by actual losses, calculated on the basis of market prices prevailing in the area on the day the damage was caused, but not lower than the value of the property according to accounting data, taking into account the degree of depreciation of this property.
Federal law may establish a special procedure for determining the amount of damage subject to compensation caused to an employer by theft, intentional damage, shortage or loss of certain types of property and other valuables, as well as in cases where the actual amount of damage caused exceeds its nominal amount.
4 . M The employer bears financial liability to the employee:
in case of illegal deprivation of the employee’s opportunity to work;
in case of damage to the employee’s property;
in case of delay in payment of wages.
The employer compensates the employee for damages incurred in connection with the unlawful deprivation of his opportunity to perform a labor function and receive wages stipulated by the employment agreement (contract).
The law obliges the employer to compensate the employee for damage arising, in particular, as a result of:
1) illegal removal of an employee from work, his dismissal or transfer to another job;
2) the employer’s refusal to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee to his previous job.
When making a decision on reinstatement at work, the body considering the labor dispute simultaneously decides to pay the employee the average earnings for the period of forced absence or the difference in earnings for the period of performing lower-paid work, but not more than for one year.
3) delay by the employer in issuing a work book to the employee, or entering into the work book an incorrect or non-compliant wording of the reason for the employee’s dismissal;
4) other cases provided for by federal laws and the collective agreement.
According to Article 235 of the Labor Code of the Russian Federation, an employer who causes damage to an employee’s property shall compensate for this damage in full. The amount of damage is calculated at market prices in force in the area at the time of compensation. If the employee agrees, damages may be compensated in kind. The employee's application for compensation for damage is sent to the employer. The employer is obliged to consider the received application and make an appropriate decision within ten days from the date of its receipt. If the employee disagrees with the employer’s decision or does not receive a response within the prescribed period, the employee has the right to go to court. According to Article 236 of the Labor Code of the Russian Federation, if the employer violates the established deadline for payment of wages, vacation pay, dismissal payments and other payments due to the employee, the employer is obliged to pay them with interest (monetary compensation) in the amount of not less than one three hundredth of the rate in force at that time refinancing of the Central Bank of Russia from unpaid amounts on time for each day of delay, starting from the next day after the established payment deadline up to and including the day of actual settlement. Moral damage caused to an employee by unlawful actions or inaction of the employer is compensated to the employee in cash in amounts determined by agreement of the parties to the employment contract. (Article 237 of the Labor Code of the Russian Federation)
The transformations taking place in the economy of the Russian Federation, which is following the path of market relations and is preparing to join the WTO, have led to significant changes in social relations regulated by labor legislation. The legal status of subjects has also changed due to the introduction of new forms of ownership and management methods.
The reform of labor legislation, which began with the adoption of the new Labor Code by the State Duma on December 21, 2001, is an important state task, and the priority areas of this reform are increasing labor mobility, ensuring a stable balance of interests of workers, employers and the state.
The Labor Code of the Russian Federation determines that the parties to an employment contract (employer and employee) bear mutual financial responsibility, and provides for the obligation of one of the parties to the employment contract, if it causes damage to the other party, to compensate it in the amount and manner determined by the Code and other federal laws.
Task:
The representative of the administration is wrong, because, according to Article 244 of the Labor Code of the Russian Federation, written agreements on full collective (team) financial responsibility, i.e. on compensation to the employer for damage caused in full for the shortage of property entrusted to employees, is concluded with employees who have reached the age of eighteen years. At the time of the conclusion of the contract, Sokolskaya was under 18 years of age, therefore she does not bear financial responsibility on an equal basis with other members of the team.
employment contract responsibility right
Literature
1. Commentary on the Labor Code of the Russian Federation / Yu.P. Orlovsky. - M.: Contract, Infra-M, 2002. - 959 p.
2. Kochetkova M.A. Labor rights of the employee. - M.: IKF "EKMOS", 2002. - 288 p.
3. Labor law: Textbook. for universities / ed. V.F. Gaponenko, F.N. Mikhailova. - M.: UNITY-DANA, 2002. - 463 p.
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Labor relations are one of the important sections of labor legislation. When concluding a contract, both parties burden themselves with obligations that they fulfill in accordance with internal regulations and legislation. In this article we will look at what the financial liability of the parties to an employment contract is, as well as the conditions for its occurrence and the consequences for both parties. This topic is one of the main ones in ensuring the legal process of relations between the parties to the employment agreement. Read also the article ⇒ ““.
Financial liability in accordance with the employment contract
When applying for a job, the employee and the employer sign a contract (employment agreement) between themselves, which regulates the rights and obligations of both parties. Moreover, regardless of the content of the contract, it carries within itself the legal regulation of the relationship of labor relations within the framework of the law. At the same time, the manager has the right to expand the list of obligations by including them in the employment contract and approving them with the help of internal regulations. All additional obligations must be within the framework of existing legislation.
The advisability of concluding an employment contract for both parties is:
- Legal protection of all participants in civil law relations, which, if necessary, have support from authorized authorities;
- Compliance with existing labor legislation, which prevents problems with executive authorities, and in some cases, obtaining preferences;
- Detailing and explanation of the main provisions of the position held and the features of the organization of the enterprise’s activities, including disciplinary rules.
There are a number of conditions under which, in accordance with existing legislation, financial liability arises:
- The injured party must declare the fact of damage or failure by the other party to fulfill its obligations, which resulted in unpleasant consequences;
- Recorded violation of official duties, which can be classified as illegal actions or inactions;
- Causing material damage to the property of one of the parties to an agreement concluded through an employment contract.
At the same time, it is very important to remember that our legislation balances the obligations of both parties and in no case diminishes the responsibility for the committed act in accordance with the position held.
Employer's responsibility to staff
Hiring an employee does not mean that only he must fulfill his obligations with commendable diligence and responsibility in the area of work entrusted to him. The employer also acts as a responsible participant in the labor relationship and is also responsible for his part of the work.
The employer is responsible | Explanation | Material liability |
For the employee’s right to engage in labor activity in accordance with job descriptions and existing legislation | · Illegal dismissal of a subordinate; · Illegal exemption from official duties; · Illegal transfer of an employee to another position without voluntary agreement with him, etc. | The average salary of an employee for the entire period during which his rights to legally perform his labor duties were violated |
For the employee's personal property | Violations by the employer include: · Damage to clothing or personal property due to the action or inaction of the employer; · Loss or loss of clothing or personal property of the employee. | The employer is obliged to compensate for damage or loss of property in full. By agreement between both parties, compensation can be either in cash or in kind. |
For causing moral harm to an employee | Violations by the employer include: · Actions that entail infringement of the rights and freedoms of employees performing their official duties, as well as their moral dissatisfaction | The amount of compensation is established either by the parties to the employment contract or appointed by the court. |
For timely payment of wages and all related payments in accordance with internal regulations on wages and legislation | Violations by the employer include: · Violation of the terms and amount of payments stipulated by the employment contract and internal regulations on remuneration. | The percentage is calculated for each day of delay on the amount due for payment. The amount of this percentage is regulated by law or can be approved by the court. |
In terms of non-payment or delay of wages within the terms specified in the contract, as well as for payment not in full, the organization is liable, regardless of whether there is objective fault in the incident or the circumstances were such that payments were delayed due to any circumstances.
Material liability of an employee within the framework of the performance of duties under an employment contract
The employee is responsible | Explanation | Material liability |
For material assets entrusted to him in accordance with his official duties | This point can be specified in the contract in advance. The employee is responsible for his workplace, property and technical equipment that he uses in his daily work | The amount of compensation usually corresponds to the market value of the property or technical equipment that was damaged |
For intentional commission of actions | Intentional infliction of damage or deliberate inaction that led to the loss of material assets or the reputation of the organization must be proven and documented in accordance with all legal standards. The very fact of the existence of a contract between both parties confirms the employee’s responsibility for his actions in the workplace | The amount of compensation is determined by assessing the cost of damage or loss |
For being at work in a state of non-alcoholic or drug intoxication | Such behavior falls not only under the standards of financial liability due to disruption of the work process (or possible damage), but also under administrative standards of liability. | In this case, the employee may be suspended from work and, at the initiative of the employer, dismissed in accordance with the employment contract |
For compliance with a non-disclosure agreement regarding the company’s activities to third parties | A separate clause in internal regulatory documents may include an agreement on non-disclosure of trade secrets. Most often this is due to the protection of clients’ personal data, the uniqueness of the organization’s activities, protection from competitors, etc. | Typically, an employment contract also provides for punishment for violation of this provision, which must be determined within the framework of labor legislation. |
Regulatory legal acts regulating the responsibility of both parties to the employment contract
Name of the normative legal act | Document Number | Description |
Labor Code | Article 232 | Regulates the obligations of both parties to the labor relationship to compensate or compensate for the committed act that resulted in material damage |
Article 233 | Regulates the basic conditions under which punishment for the consequences of an act committed can be recognized as the financial liability of one party to an employment contract to the other | |
Chapter 38 Articles 234 – 237 | This chapter regulates all aspects of the organization’s financial liability for offenses committed by it. | |
Chapter 39 Articles 238 – 247 | This chapter regulates all aspects of an employee’s financial liability for offenses committed by him. |
To organize personnel records in a company, beginner HR officers and accountants are perfectly suited to the author’s course by Olga Likina (accountant M.Video management) ⇓
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In Labor Law, the material liability of the parties to labor relations is understood as compensation for damage caused by one of the parties to the other.
In order for an employment relationship to begin, it is necessary:
- oral agreement of the parties;
- employment with registration of a work book without concluding an employment contract;
- with conclusion.
Please note, and this is important, that although in practice all three types of labor relations exist, the legislation provides for only one type of labor relationship. Namely, on the basis of an employment contract.
Liability may arise on the part of the employee, no matter whether the action or inaction caused damage to the organization. On the part of the employer, it arises if damage has been caused to the interests of the employee or his health. For example, trauma, mutilation, etc.
Material liability is mandatory. That is, it is an obligation, and not a right, of a participant in labor relations. A claim for damages may be legally rejected if:
- work was performed that was beyond the employee’s competence;
- emergency circumstances arose. For example, fire, flood and the like;
- circumstances that impede the performance of work and which cannot be overcome;
- the demands are unfounded or simply illegal.
Where is it fixed?
When an employment relationship arises between the employer and the hired employee, an employment contract is drawn up and signed. It must be in writing.
The clause on liability is either included in the text of the contract itself, or a separate annex to the contract on liability is drawn up. It is part of the contract, and an integral part.
It specifies what exactly the employee is responsible for and the procedure for its occurrence. The responsibility borne by the employer is also mandatory.
Conditions
Material liability of the parties to an employment contract may arise if and only if one of the parties committed actions as a result of which the other party suffered damage.
In this case, not any actions, but those that will be considered illegal. The conditions for liability are:
![](https://i0.wp.com/naim.guru/wp-content/uploads/2015/05/otvetstvennost-400x246.jpeg)
Responsibility also arises if the actions of the culprit were:
- intentional;
- careless;
- illegal.
Determination of fault and amount of compensation, as well as the measure of responsibility depends on what actions, as well as inaction, were performed by the guilty party.
Therefore, each case requires a thorough investigation of the incident. It is not allowed to demand compensation for damage based on formal grounds of guilt.
Kinds
There are two types of liability:
- limited;
- complete.
In case of limited financial liability, the employee must compensate for damage within the limits of monthly earnings. Unless, of course, the law establishes a different procedure for compensation.
Full liability – compensation for all actual damages.
It occurs when:
![](https://i1.wp.com/naim.guru/wp-content/uploads/2015/05/93-400x282.jpg)
Let's summarize all of the above. Financial liability exists only if there is an employment relationship.
No one has the right to demand compensation for damage from an employee or employer, not yet proven that it was their actions or inactions that led to the damage.
Liability arises only when actual damage is caused.