Tk rf material responsibility of the employee. Labor Code of the Russian Federation
The employee is obliged to compensate the employer for the direct actual damage caused to him. Unreceived income (lost profit) is not subject to recovery from the employee.
Direct actual damage is understood as a real decrease in the employer’s cash property or deterioration in the condition of the said property (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs or excessive payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties.
Part three is no longer valid. - the federal law dated 06/30/2006 N 90-FZ.
Article 239. Circumstances excluding material liability of an employee
The material liability of the employee is excluded in cases of damage due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer's failure to fulfill the obligation to ensure proper conditions for the storage of property entrusted to the employee.
Article 240
The employer has the right, taking into account the specific circumstances under which the damage was caused, to fully or partially refuse to recover it from the guilty employee. The owner of the property of the organization may restrict the specified right of the employer in cases provided for by federal laws, other regulatory legal acts Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation, regulatory legal acts of the bodies local government, founding documents organizations.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Article 241. Limits of material liability of an employee
For the damage caused, the employee shall be liable within the limits of his average monthly earnings, unless otherwise provided by this Code or other federal laws.
Article 242. Full liability of an employee
Complete material liability of the employee is his obligation to compensate the direct actual damage caused to the employer in full.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Liability in the full amount of the damage caused may be imposed on the employee only in cases provided for by this Code or other federal laws.
Employees under the age of eighteen bear full financial responsibility only for intentional infliction of damage, for damage caused in a state of alcoholic, narcotic or other toxic intoxication, as well as for damage caused as a result of a crime or administrative offense.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Article 243. Cases of full liability
Liability in the full amount of the damage caused is assigned to the employee in the following cases:
1) when, in accordance with this Code or other federal laws, the employee is held liable in full for the damage caused to the employer in the performance of the employee's labor duties;
2) shortage of valuables entrusted to him on the basis of a special written agreement or received by him under a one-time document;
3) intentional infliction of damage;
4) infliction of damage in a state of alcoholic, narcotic or other toxic intoxication;
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
5) causing damage as a result of the criminal actions of the employee, established by a court verdict;
6) causing damage as a result of an administrative offense, if such is established by the relevant state body;
7) disclosure of information constituting a legally protected secret (state, official, commercial or other), in cases provided for by federal laws;
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
8) infliction of damage not in the performance of labor duties by the employee.
Liability in the full amount of the damage caused to the employer can be established by an employment contract concluded with the deputies of the head of the organization, the chief accountant.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Article 244. Written agreements on the full liability of employees
Written agreements on full individual or collective (team) liability (clause 2 of part one of Article 243 of this Code), that is, on compensation to the employer for damage caused in full for the lack of property entrusted to employees, may be concluded with employees who have reached the age of eighteen years and directly serving or using monetary, commodity values or other property.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Lists of works and categories of employees with whom said contracts, as well as standard forms of these contracts are approved in the manner established by the Government of the Russian Federation.
Article 245
When jointly performed by employees certain types work related to the storage, processing, sale (vacation), transportation, use or other use of the values transferred to them, when it is impossible to distinguish between the responsibility of each employee for causing damage and conclude an agreement with him on compensation for damage in full, a collective (brigade) may be introduced material liability.
A written agreement on collective (team) liability for damage is concluded between the employer and all members of the team (team).
Under an agreement on collective (brigade) material liability, values are entrusted to a predetermined group of persons, which is fully liable for their shortage. To be released from liability, a member of the team (team) must prove the absence of his guilt.
In case of voluntary compensation for damage, the degree of guilt of each member of the team (team) is determined by agreement between all members of the team (team) and the employer. When recovering damages judicial order the degree of guilt of each member of the team (team) is determined by the court.
Article 246. Determining the amount of damage caused
The amount of damage caused to the employer in the event of loss and damage to property is determined by actual losses calculated on the basis of market prices in force in the area on the day the damage was caused, but not lower than the value of the property according to accounting data, taking into account the degree of depreciation of this property.
The federal law may establish a special procedure for determining the amount of damage to be compensated caused to the employer by theft, deliberate damage, shortage or loss of certain types of property and other valuables, as well as in cases where the actual amount of damage caused exceeds its nominal amount.
Article 247
Before making a decision on compensation for damages by specific employees, the employer is obliged to conduct an audit to determine the amount of damage caused and the reasons for its occurrence. To conduct such an inspection, the employer has the right to create a commission with the participation of relevant specialists.
Requesting a written explanation from the employee to establish the cause of the damage is mandatory. In case of refusal or evasion of the employee from providing the specified explanation, an appropriate act is drawn up.
(Part two as amended by Federal Law No. 90-FZ of June 30, 2006)
The employee and (or) his representative have the right to get acquainted with all the materials of the inspection and appeal against them in the manner prescribed by this Code.
Article 248. Procedure for recovery of damage
Recovery from the guilty employee of the amount of damage caused, not exceeding the average monthly earnings, is carried out by order of the employer. The order may be made no later than one month from the date of the final determination by the employer of the amount of damage caused by the employee.
If the one-month period has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer, and the amount of damage to be recovered from the employee exceeds his average monthly earnings, then recovery can only be carried out by the court.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
If the employer fails to comply with the established procedure for recovering damages, the employee has the right to appeal against the actions of the employer in court.
An employee who is guilty of causing damage to the employer may voluntarily compensate for it in whole or in part. By agreement of the parties to the employment contract, compensation for damage with installment payment is allowed. In this case, the employee submits to the employer a written obligation to compensate for the damage, indicating specific payment terms. In case of dismissal of an employee who gave a written obligation to voluntarily compensate for damage, but refused to compensate for the specified damage, the outstanding debt is recovered in court.
With the consent of the employer, the employee may transfer to him equivalent property to compensate for the damage caused or repair the damaged property.
Compensation for damages is made regardless of bringing the employee to disciplinary, administrative or criminal liability for actions or inaction that caused damage to the employer.
Article 249. Reimbursement of expenses associated with employee training
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
In the event of dismissal without good reasons before the expiration of the period stipulated by the employment contract or training agreement at the expense of the employer, the employee is obliged to reimburse the costs incurred by the employer for his training, calculated in proportion to the time actually not worked after the end of training, unless otherwise provided by the employment contract or training agreement.
Article 250
Review body labor disputes may, taking into account the degree and form of guilt, financial situation employee and other circumstances to reduce the amount of damage to be recovered from the employee.
Reduction of the amount of damage to be recovered from the employee is not carried out if the damage was caused by a crime committed for mercenary purposes.
Downloads:
Labor Code of the Russian Federation
Part Three
Section XI. Liability of the parties to the employment contract
Chapter 39
Article 238. Liability of an employee for damage caused to the employer
The employee is obliged to compensate the employer for the direct actual damage caused to him. Unreceived income (lost profit) is not subject to recovery from the employee.
Direct actual damage is understood as a real decrease in the employer’s cash property or deterioration in the condition of the said property (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs or excessive payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties.
Part three is no longer valid. - Federal Law No. 90-FZ of June 30, 2006.
Article 239. Circumstances excluding material liability of an employee
The material liability of the employee is excluded in cases of damage due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer's failure to fulfill the obligation to ensure proper conditions for the storage of property entrusted to the employee.
Article 240
The employer has the right, taking into account the specific circumstances under which the damage was caused, to fully or partially refuse to recover it from the guilty employee. The owner of the property of the organization may restrict the said right of the employer in cases provided for by federal laws, other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation, regulatory legal acts of local governments, constituent documents of the organization.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Article 241. Limits of material liability of an employee
For the damage caused, the employee shall be liable within the limits of his average monthly earnings, unless otherwise provided by this Code or other federal laws.
Article 242. Full liability of an employee
The full liability of the employee consists in his obligation to compensate the direct actual damage caused to the employer in full.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Liability in the full amount of the damage caused may be imposed on the employee only in cases provided for by this Code or other federal laws.
Employees under the age of eighteen bear full financial responsibility only for intentional infliction of damage, for damage caused in a state of alcoholic, narcotic or other toxic intoxication, as well as for damage caused as a result of a crime or administrative offense.
(as amended by Federal Laws No. 90-FZ dated June 30, 2006, No. 359-FZ dated November 27, 2017)
Article 243. Cases of full liability
Liability in the full amount of the damage caused is assigned to the employee in the following cases:
1) when, in accordance with this Code or other federal laws, the employee is held liable in full for the damage caused to the employer in the performance of the employee's labor duties;
2) shortage of valuables entrusted to him on the basis of a special written agreement or received by him under a one-time document;
3) intentional infliction of damage;
4) infliction of damage in a state of alcoholic, narcotic or other toxic intoxication;
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
5) causing damage as a result of the criminal actions of the employee, established by a court verdict;
6) causing damage as a result of an administrative offense, if such is established by the relevant state body;
(as amended by Federal Law No. 359-FZ of November 27, 2017)
7) disclosure of information constituting a legally protected secret (state, official, commercial or other), in the cases provided for by this Code, other federal laws;
(As amended by Federal Laws No. 90-FZ dated June 30, 2006, No. 315-FZ dated August 3, 2018)
8) infliction of damage not in the performance of labor duties by the employee.
Liability in the full amount of the damage caused to the employer can be established by an employment contract concluded with the deputies of the head of the organization, the chief accountant.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Article 244. Written agreements on the full liability of employees
Written agreements on full individual or collective (team) liability (clause 2 of part one of Article 243 of this Code), that is, on compensation to the employer for damage caused in full for the lack of property entrusted to employees, may be concluded with employees who have reached the age of eighteen years and directly serving or using monetary, commodity values or other property.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
The lists of works and categories of employees with whom these contracts may be concluded, as well as standard forms of these contracts, are approved in the manner established by the Government of the Russian Federation.
Article 245
When employees jointly perform certain types of work related to the storage, processing, sale (vacation), transportation, use or other use of the values transferred to them, when it is impossible to distinguish between the responsibility of each employee for causing damage and conclude an agreement with him on compensation for damage in full, collective (brigade) liability may be introduced.
A written agreement on collective (team) liability for damage is concluded between the employer and all members of the team (team).
Under an agreement on collective (brigade) material liability, values are entrusted to a predetermined group of persons, which is fully liable for their shortage. To be released from liability, a member of the team (team) must prove the absence of his guilt.
In case of voluntary compensation for damage, the degree of guilt of each member of the team (team) is determined by agreement between all members of the team (team) and the employer. When recovering damages in court, the degree of guilt of each member of the team (team) is determined by the court.
Article 246. Determining the amount of damage caused
The amount of damage caused to the employer in the event of loss and damage to property is determined by actual losses calculated on the basis of market prices in force in the area on the day the damage was caused, but not lower than the value of the property according to accounting data, taking into account the degree of depreciation of this property.
The federal law may establish a special procedure for determining the amount of damage to be compensated caused to the employer by theft, deliberate damage, shortage or loss of certain types of property and other valuables, as well as in cases where the actual amount of damage caused exceeds its nominal amount.
Article 247
Before making a decision on compensation for damages by specific employees, the employer is obliged to conduct an audit to determine the amount of damage caused and the reasons for its occurrence. To conduct such an inspection, the employer has the right to create a commission with the participation of relevant specialists.
Requesting a written explanation from the employee to establish the cause of the damage is mandatory. In case of refusal or evasion of the employee from providing the specified explanation, an appropriate act is drawn up.
(Part two as amended by Federal Law No. 90-FZ of June 30, 2006)
The employee and (or) his representative have the right to get acquainted with all the materials of the inspection and appeal against them in the manner prescribed by this Code.
Article 248. Procedure for recovery of damage
Recovery from the guilty employee of the amount of damage caused, not exceeding the average monthly earnings, is carried out by order of the employer. The order may be made no later than one month from the date of the final determination by the employer of the amount of damage caused by the employee.
If the one-month period has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer, and the amount of damage to be recovered from the employee exceeds his average monthly earnings, then recovery can only be carried out by the court.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
If the employer fails to comply with the established procedure for recovering damages, the employee has the right to appeal against the actions of the employer in court.
An employee who is guilty of causing damage to the employer may voluntarily compensate for it in whole or in part. By agreement of the parties to the employment contract, compensation for damage with installment payment is allowed. In this case, the employee submits to the employer a written obligation to compensate for the damage, indicating specific payment terms. In case of dismissal of an employee who gave a written obligation to voluntarily compensate for damage, but refused to compensate for the specified damage, the outstanding debt is recovered in court.
With the consent of the employer, the employee may transfer to him equivalent property to compensate for the damage caused or repair the damaged property.
Compensation for damages is made regardless of bringing the employee to disciplinary, administrative or criminal liability for actions or inaction that caused damage to the employer.
Article 249. Reimbursement of expenses associated with employee training
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
In the event of dismissal without good reason before the expiration of the period stipulated by the employment contract or agreement on training at the expense of the employer, the employee is obliged to reimburse the costs incurred by the employer for his training, calculated in proportion to the time actually not worked after the end of the training, unless otherwise provided by the employment contract or learning agreement.
Article 250
The labor dispute resolution body may, taking into account the degree and form of fault, the financial situation of the employee and other circumstances, reduce the amount of damage to be recovered from the employee.
Reduction of the amount of damage to be recovered from the employee is not carried out if the damage was caused by a crime committed for mercenary purposes.
Read 7204 once Edited on 01/23/2019
Labor Code of the Russian Federation
- Labor Code of the Russian Federation - table of contents
- Chapter 1. Basic principles of labor legislation
- Chapter 2. Labor relations, parties to labor relations, grounds for the emergence of labor relations
- Chapter 3. General Provisions
- Chapter 4. Representatives of employees and employers in social partnership
- Chapter 5. Bodies of social partnership
- Chapter 6 Collective Bargaining
- Chapter 7. Collective agreements and agreements
- Chapter 8. Participation of employees in the management of the organization
- Chapter 9. Responsibility of the parties to the social partnership
- Chapter 10. General provisions. Employment contract
- Chapter 11. Conclusion of an employment contract
- Chapter 12. Changing the employment contract
- Chapter 13. Termination of an employment contract
- Chapter 14. Protection of personal data of an employee
- Chapter 15. General provisions. Work time
- Chapter 16
- Chapter 17. General provisions. Time relax
- Chapter 18 Weekends and non-working holidays
- Chapter 19 Annual paid holidays
- Chapter 20. General provisions. Pay and labor regulation
- Chapter 21 Pay and labor regulation
- Chapter 22 Pay and labor regulation
- Chapter 23. General provisions. Guarantees and compensation
- Chapter 24
- Chapter 25. Guarantees and compensations to employees in the performance of state or public duties
- Chapter 26. Guarantees and compensations for employees combining work with education
- Chapter 27. Guarantees and compensations to employees related to the termination of an employment contract
- Chapter 28. Other guarantees and compensations
- Chapter 29 Labor schedule. Labor discipline
- Chapter 30 Labor schedule
- Chapter 31 Training and additional professional education of employees
- Chapter 32
- Chapter 33 Occupational Safety and Health
Unfortunately, in our time, disputes between employees and employers arise quite often, and one has only to “ask” google to give results for the query “employers' lawlessness” and the search engine will offer several hundred thousand results. This suggests that the topic of employer's responsibility is quite relevant and many people ask themselves questions every day about whether the employer acted lawfully in relation to them in this or that situation and how they can protect their rights. Naturally, this leads to the fact that the issue of responsibility is also acute among employers, whose rights are sometimes infringed no less.
Understanding this topic can be quite difficult and to protect your rights it is better to contact qualified lawyers. However, in general, everyone needs to navigate this issue, and in order to help both parties understand it, the Faculty of Medical Law has prepared a series of articles “Employer's Responsibility”.
In this article, we will look at general provisions regarding the liability of the employer to the employee. The rest of the articles can be found at the links below:
Article 419 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) contains an indication of bringing persons guilty of violating labor legislation to five types of liability. Among them, applicable to the employer, four can be distinguished (with the exception of the disciplinary one):
- material
- civil law
- administrative
- criminal
First of all, if we talk about the responsibility of the employer to the employee, then we mean material and civil liability. As for administrative and criminal liability, it arises from the employer to the state. However, often such responsibility comes just for violation of the labor rights of the employee. Therefore, in this cycle Articles we will also briefly consider these two types of responsibility.
Disciplinary responsibility can only come from the employee, therefore, there is no place for it in the article.
General provisions on the liability of the employer are contained in section XI of the Labor Code of the Russian Federation. The essence of liability is obligations of a party to an employment contract(in our case, the employer), causing damage to the other party(in our case, an employee), repair this damage.
According to Art. 233 of the Labor Code of the Russian Federation for the onset of liability, the following conditions must be met:
- the presence of property damage to the injured party;
- unlawfulness of the action (inaction) that caused the damage;
- causal relationship between the illegal act and property damage;
- guilty of committing an unlawful action (inaction), unless otherwise expressly provided for by the Labor Code or other federal law.
Chapter 38 of the Labor Code considers four grounds for the occurrence of the liability of the employer:
- unlawful deprivation of an employee of the opportunity to work,
- damage to his property,
- delayed salary and other payments,
- causing moral harm to an employee.
Read more about the obligations and consequences for the employer caused by such circumstances in the articles "", "".
Another form of legal liability aimed at restoring the violated rights of an employee is civil liability. This type of employer's responsibility to the employee takes place in cases where he said violation is responsible according to the norms of not labor, but civil legislation.
In this case, the mechanisms for protecting the rights of an employee are reflected in articles 15 and 151 Civil Code Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) and consists in the following norms:
- An employee whose right has been violated may demand full compensation for the losses caused to him, unless the law or the contract provides for compensation for losses in a smaller amount.
- If moral harm (physical or moral suffering) is caused to a citizen by actions that violate his personal non-property rights or encroach on non-material benefits belonging to the citizen, as well as in other cases provided for by law, the court may impose on the violator the obligation of monetary compensation for the specified harm.
As we can see, the civil liability of the employer, as well as material, consists mainly in the imposition of property sanctions on him. In this regard, these two types of responsibility are often confused and even combined. According to some legal scholars, material liability is, in fact, civil law (S.S. Alekseev, S.N. Bratus, R.O. Khalfina, etc.).
More about distinctive features material and civil liability of the employer to the employee you can read in.
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By submitting an application, you agree to the terms of processing and use of personal data.In addition to the workers themselves and trade union bodies, the observance of labor legislation and the rights of workers is also monitored by supervisory authorities. In this regard, employers sometimes have to answer for the committed offenses not only to employees, but also to the state.
Well, if you manage to get off with only one administrative punishment, for example, a fine. But there are cases when the violations of the employer are so great that the guilty person can even be held criminally liable.
The administrative responsibility of employers is established by the Code of the Russian Federation on Administrative Offenses (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation). Mandatory element the occurrence of such liability is the presence of fault.
Article 2.2 of the Code of Administrative Offenses of the Russian Federation distinguishes two forms of guilt:
- Intention - an administrative offense is recognized as committed intentionally if the person who committed it was aware of the unlawful nature of his action (inaction), foresaw its harmful consequences and desired the onset of such consequences or knowingly allowed them or treated them indifferently;
- Negligence - an administrative offense is recognized as committed through negligence if the person who committed it foresaw the possibility of harmful consequences of his action (inaction), but without sufficient grounds, presumptuously counted on preventing such consequences or did not foresee the possibility of such consequences, although he should have could have foreseen them.
You can read more about the main violations of employers in the field of administrative law, as well as the sanctions provided for such offenses, in the article "".
Criminal liability of the employer may occur in case of violation of the constitutional rights of citizens, prescribed in Art. 37 of the Constitution of the Russian Federation: “Labor is free. ... Forced labor is prohibited. ... Everyone has the right to work in conditions that meet the requirements of safety and hygiene, to remuneration for work without any discrimination ... Everyone has the right to rest. A person working under an employment contract is guaranteed the duration of working hours established by federal law, holidays and holidays paid annual leave...
It should be remembered that the basis of criminal liability is the commission of an act containing all the elements of a crime under the Criminal Code:
- object is public attitude which is protected by the Criminal Code;
- the objective side is a set of features that characterize outward manifestation crimes (in particular, action / inaction, causal relationship; time, place, situation and other detailed data);
- subject - individual who commits a crime (medical worker);
- the subjective side is the mental attitude of a person to the socially dangerous act committed by him (guilt, motive and purpose). The guilt of a person can be in the form of intent (direct or indirect) or negligence (criminal frivolity or criminal negligence).
Unlike administrative offenses, the types of violations in criminal liability are more socially dangerous, therefore, in criminal liability, the sanctions against the employer are more stringent.
You can find a visual table showing the offenses of the employer and the articles of the Criminal Code of the Russian Federation, according to which criminal liability is provided for such violations, in the article "".
In order to understand in more detail the issue of the responsibility of the employer to the employee, we recommend that you familiarize yourself with other articles of this section.
One of the basic rights of the employer in accordance with the provisions of Article 22 of the Labor Code of the Russian Federation is the right to bring employees to liability in the manner prescribed by applicable law.
Based on Art. 233 of the Labor Code of the Russian Federation, the material liability of a party to an employment contract occurs for damage caused by it to the other party to this contract as a result of its guilty unlawful behavior (action or inaction), unless otherwise provided by the Labor Code of the Russian Federation or other federal laws.
Liability arises under the simultaneous presence of the following conditions:
- unlawful behavior (action or inaction) of an employee;
- a causal relationship between the illegal act and material damage;
- guilt in committing an unlawful act (inaction).
According to Article 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for the damage caused to him direct actual damage*.
Note:Lost income (lost profit) recoverable from the employeenot subject to .
*Direct actual damage means:
- a real decrease in the employer's cash assets,
- deterioration of the condition 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),
- the need for the employer to incur costs or excessive payments for the acquisition, restoration of property or for compensation for damage caused by the employee to third parties.
“Direct actual damage can be attributed, for example:
- lack of money or property values,
- damage to materials and equipment,
- the cost of repairing damaged property,
- payments for the time of forced absenteeism or downtime,
- the amount of the fine paid.
- limited liability,
- full liability.
Such a norm is established by the provisions of Article 241 of the Labor Code of the Russian Federation.
In this article we will talk about the provisions of the current legislation regarding the liability of employees, in particular:
- on cases of full liability of employees,
- on the procedure for recovering from employees the damage caused by them,
- on the recovery from employees of the cost of training paid by the employer,
- and so on.
Full financial responsibility of employees
On the basis of Article 242 of the Labor Code of the Russian Federation, the full liability of the employee consists in his obligation to compensate the direct actual damage caused to the employer in full.Liability in the full amount of the damage caused can be imposed on the employee only in cases provided for by the Labor Code of the Russian Federation or other federal laws.
Cases of full liability are provided for by Article 243 of the Labor Code of the Russian Federation.
According to the provisions of Article 243 of the Labor Code of the Russian Federation, liability in the full amount of the damage caused is assigned to the employee in the following cases:
- when, in accordance with the Labor Code of the Russian Federation (or other federal laws), the employee is held liable in full for damage caused to the employer in the performance of labor duties by the employee;
- shortage of valuables entrusted to him on the basis of a special written agreement or received by him under a one-time document;
- intentional damage;
- causing damage in a state of alcoholic, narcotic or other toxic intoxication;
- causing damage as a result of the employee's criminal actions established by a court verdict;
- causing damage as a result of an administrative offense, if such is established by the relevant state body;
- disclosure of information constituting a legally protected secret:
- state,
- service,
- commercial,
- other
- causing damage not in the performance of work duties by the employee.
In addition, on the basis of Article 277 of the Labor Code of the Russian Federation, the head of the organization bears full liability for direct actual damage caused to the organization.
In the cases stipulated by federal laws, the head of the organization compensates the organization for losses* caused by his guilty actions.
*Calculation of losses is carried out in accordance with the norms provided for by civil law.
So, for example, in accordance with paragraph 2 of article 44 of the Federal Law of 08.02.1998. No. 14-FZ "On companies with limited liability”, the head of the company is liable to the company for losses caused to the company by their guilty actions (inaction), unless other grounds and amount of liability are established by federal laws.
Paragraph 2 of Article 71 of the Federal Law of December 26, 1995 contains similar norms. No. 208-FZ "On Joint Stock Companies".
According to Article 244 of the Labor Code of the Russian Federation, written agreements on full individual or collective (team) liability * can be concluded with employees who have reached the age of eighteen and directly serve or use monetary, commodity values or other property.
*That is on compensation to the employer for the damage caused in full for the shortage of property entrusted to employees
Note:aged workersunder 18 bear full financial responsibilityonly in exceptional cases :
- intentional damage,
- for damage caused in a state of alcoholic, narcotic or other toxic intoxication,
- for damage caused as a result of a crime or administrative offense.
Recovery of damages from a financially responsible employee
According to Article 246 of the Labor Code of the Russian Federation, the amount of damage caused, in case of loss and damage to property, is determined by actual losses, calculated:- based market prices operating in the area on the day of the damage, but not less than the value of the property according to accounting data taking into account the degree of wear and tear of this property.
In addition, it is mandatory to demand a written explanation from the employee to establish the cause of the damage. If the employee refuses or evades providing explanations, it is necessary to draw up an appropriate act.
To determine the amount of damage, it is necessary to conduct an inventory. In accordance with paragraph 2 of Article 11 of the Federal Law of 06.12.2011. No. 402-FZ "On Accounting", the inventory reveals the actual presence of the relevant objects, which is compared with the data of accounting registers.
Usually, a commission with the participation of relevant specialists is created to conduct an audit.
The commission may include, for example:
- caretaker,
- chief engineer,
- security guard
- lawyer,
- accountant,
- and so on.
The created commission should establish:
- the presence or absence of circumstances that exclude the liability of the employee;
- unlawful actions of the employee in causing damage to the property of the employer;
- the fault of the employee in causing damage to the company;
- the presence of a causal relationship between the behavior of the employee and the damage incurred;
- the presence or absence of direct actual damage.
- whether the fault of the employee was established;
- whether there have been unlawful acts on his part;
- whether it was possible to establish a causal relationship between the actions of the employee and the damage caused.
Attached to the act source documents confirming the conduct and results of the inventory, as well as written explanations of the employee and, if necessary, any other documents.
In accordance with the provisions of Article 247 of the Labor Code of the Russian Federation, the employee and (or) his representative have the right to get acquainted with all the materials of the audit and appeal against them in the manner established by the Labor Code of the Russian Federation.
On the basis of Article 248 of the Labor Code of the Russian Federation, the 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.
note: Such an order can be madeno later than one month from the date of the final determination by the employer of the amount of damage caused by the employee.
In cases where:
- month has expired
- the employee does not agree to voluntarily compensate for the damage caused to the employer, the amount of which exceeds his average monthly earnings,
The employee may voluntarily compensate for the damage caused in whole or in part.
By agreement of the parties to the employment contract, compensation for damage with installment payment is allowed. In this case, the employee submits to the employer a written obligation to compensate for the damage, indicating specific payment terms.
In case of dismissal of an employee who gave a written obligation to voluntarily compensate for damage, but refused to compensate for the specified damage, the outstanding debt is recovered in court.
With the consent of the employer, the employee may transfer to him equivalent property to compensate for the damage caused or repair the damaged property.
Note:Compensation for damage is maderegardless of bringing the employee to disciplinary, administrative or criminal liability for actions or omissions that caused damage to the employer.
Reimbursement of costs associated with employee training
According to the provisions of Article 249 of the Labor Code of the Russian Federation, if the employer paid for the training of the employee, and he subsequently quit without good reason, without having worked out the agreed:- employment contract,
- or learning agreement,
The amount of reimbursement of such expenses is calculated in proportion to the time actually not worked after graduation (unless otherwise provided by the employment contract or training agreement).
At the same time, the terms of the employment contract or training agreement that worsen the position of the employee are illegal and can be challenged by the latter in court. In this case, the court is likely to take the side of the employee.
Yes, the definition Supreme Court RF dated 28.09.2012 No. 56-KG12-7, the court decided that the employee’s claim for the recovery of excessively withheld amounts was lawfully satisfied, since the court correctly calculated the amount in proportion to the time actually not worked after graduation, since the condition of the student agreement, which provides for the employee’s full reimbursement of the cost of training , worsens the position of the employee and is contrary to the requirements of Art. 249 of the Labor Code of the Russian Federation:
“In resolving the dispute, the court, referring to the provisions of Article 249 of the Labor Code, calculated the amount to be reimbursed to the plaintiff in proportion to the time actually not worked by the defendant after graduation, and not in full amount spent on the training process.
At the same time, the court pointed out that the condition of the student agreement, which provides for full reimbursement by the employee of the cost of training, and not in proportion to the time worked after graduation, worsens the position of the employee and is contrary to the requirements of Article 249 of the Labor Code.”
A similar position is set out in the Letter Federal Service on labor and employment dated April 13, 2012. №549-6- 1 “On the illegality of including in an employment contract or agreement on training a provision providing for the obligation of the employee to reimburse training costs, regardless of the term of dismissal”:
“Article 249 of the Labor Code of the Russian Federation provides that reimbursement of costs associated with the training of an employee is possible if the employee leaves without good reason before the expiration of the period stipulated by the employment contract or training agreement at the expense of the employer.
According to Article 57 of the Labor Code in employment contract may provideadditional conditions that do not worsen the position of the employee compared to the set
- labor law,
- other normative legal acts containing labor law norms,
- collective agreement,
- agreements
- local regulations,
The inclusion in an employment contract or training agreement of a provision providing for the obligation of an employee to reimburse training costs regardless of the term of dismissal, in our opinion, reduces the level of employees' rights, since employees have an obligation to reimburse costs in any case, regardless of working out a certain period.
In accordance with Article 9 of the Code, collective agreements, agreements, labor contractscannot contain conditions restricting the rights or reducing the level of guarantees for employees in comparison with those established by labor legislation and other regulatory legal acts containing labor law norms.
Ifsuch conditions included in a collective agreement, agreement or employment contract, theyare not applicable .»
In order to reimburse the cost of training a departing employee, the following conditions must be met:
- the employee is sent for training by the employer;
- the employer paid for the training of the employee;
- there is a condition in the employment contract on the training of the employee at the expense of the employer, or a training agreement has been concluded with the employee;
- the employment contract or training agreement stipulates that after training, the employee is obliged to work in the company for a certain time (for example, a year);
- the employee leaves before the expiration of the agreed period of working without good reason*.
- Due to the impossibility of continuing his work (enrollment in educational institution, retirement, etc.).
- In cases of established violation by the employer:
- labor legislation and other normative legal acts containing labor law norms,
- local regulations,
- the terms of the collective agreement,
- agreement or employment contract.
Many types of work contracts concluded by the employee and the employer contain a liability clause. Its very presence awakens disturbing thoughts, forcing one to think about the possible consequences. To get rid of them, just read the informational article on the topic, posted below.
Liability under the Labor Code of the Russian Federation
Let's turn to the main document, which is subject to labor law countries. The Labor Code of the Russian Federation allocates a whole chapter number 39 to this sensitive issue. It clearly covers all the nuances associated with the obligations of the parties in this direction labor relations.
There is no direct definition of the wording "material responsibility" in the Labor Code of the Russian Federation. It is understood as the obligation of the employee under the employment contract to compensate for damage caused to the property of the employer. This liability applies only to equipment and goods provided to the employee for the performance of work.
Under the precedent initiating a recovery for material liability, the legal field defines the case when an employee causes the so-called direct actual damage. What does it mean? The first article of the chapter contains the answer to this question: it is a decrease in the property at the disposal of the employer, including the need for the cost of restoring it or compensating for the damage caused.
Important!
An employee may be liable only within the limits of his average monthly earnings. This type of duty is regulated by an order on the appointment of financial responsible persons. A sample order is in the accounting department.
The clause on this type of obligation can be found in any type sample employment or work contracts.
Liability of the employee to the employer according to the Labor Code of the Russian Federation
Usually, the contract considers full compensation for damage caused to the property of the employer.
The material liability of the employee for damage caused to the employer arises:
- 1. If this type of obligation is imposed on the worker under the Labor Code of the Russian Federation or in accordance with other federal legal acts.
- 2. With the intentional nature of the damage.
- 3. Due to the lack of funds that are of value to the employer and the enterprise, which are under the control of the employee on the labor schedule.
- 4. At the time of harm in altered states: under the influence of drugs, alcohol or other toxic substances.
- 5. As a result of a violation of the law by an employee, identified by a judicial authority.
- 6. Due to administrative violation of the relevant government regulations.
- 7. Due to the disclosure of secret information protected by law (secrets different kind: state, commercial and others).
- 8. When the damage is caused by non-fulfillment of labor duties.
Order on material liability of an employee 2017 sample
The employer is obliged to draw up a document according to which the persons responsible for the safety of this or that property are appointed. A sample order on responsible employees is stored in the accounting department. The persons listed in it are obliged to familiarize themselves with the wards of the object and sign in specially marked lines of paper.
Such documents are usually compiled according to templates. Their samples abound on the Internet. If you wish, you can always check the eligibility of your appointment and compare the order with a typical pattern of similar securities.
It is also mandatory to enter an order for proceedings regarding the occurrence of damage to property in a special incident log. A sample order must be signed by the offending employee.
The term for bringing the employee to responsibility
The Labor Code of the Russian Federation allocates one month from the date of establishing the final amount of the harm caused to sanctions actions
It does not include proceedings, calculations, obtaining explanations and other activities carried out as part of the identification of the person who will be sanctioned.
Liability of the employer to the employee
According to and in accordance with the Labor Code of the Russian Federation, the employer bears certain types of material obligations to his employee.
These include the following types of duties:
- Ensuring normal working conditions;
- Compliance with the norms and rules of labor safety in the company;
- Pay monetary reward in the appropriate size. On time and to the extent specified in the contract.
- Ensuring the health and safety of the employee's property.
Violation of the above obligations of the employer is punishable by law.
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