Cases of full financial liability. The employee and the material damage caused: when they respond with wages

Liability is one of the basic legal terms that denotes the legal obligation of the person responsible for causing property damage to compensate the injured person. The amount and procedure for compensation for damage is regulated by labor legislation. This type of obligation is a response from one party to a business relationship to violations by the other.

The financial liability of the parties to the labor relationship has its own distinctive features.

1. Firstly, it is always personal. This means that the employee must independently compensate for the damage caused by him. This also applies to minor employees with whom the contract was concluded.
2. Secondly, the obligation to compensate for harm arises only after the guilt of the person himself has been established directly. The owner of the entrusted property must prove the existence of an offense.
3. Thirdly, when establishing an employee’s guilt, the limit of liability is correlated with his salary. The amount of payments to compensate for the damage caused should not exceed the average monthly income of the person.
4. Fourthly, this type of liability threatens only for actual property damage. It is impossible to oblige an employee to make payments for non-compliance with plans and income not received by the company.

   Finally, if several employees are at fault, the amount of payments should be distributed taking into account the degree of guilt of each of them. This phenomenon is called shared liability.

If you want to know more about govt. orders and regulations, go to . We provide an analysis of the legislation of the Russian Federation on this topic. Having talked about the concept of financial responsibility, let's move on to the types.

There is this term. By subject, one can distinguish between the obligations of the employee and the employer.

And according to the amount of cash payments, it includes:

1. . The person must compensate for the property damage caused in full. This type of obligation often arises in the event of intentional harm, violation while under the influence of alcohol or drugs, or disclosure of legally protected corporate secrets. Read about such an agreement.
2. . The amount of payments in this case should not exceed the person’s monthly income (according to Article 241 of the labor legislation). This type of liability is the most common.

Conditions of occurrence

1. Existence of actual property damage.
2. The guilt of the violator (one of the parties to the labor relationship) is proven.
3. The exact amount of damage and the amount of payments have been determined.
4. There are no circumstances that could release the offender from liability.

Briefly about the mat. responsibilities of the parties to the employment relationship:

Knowing what financial responsibility is, it is worth understanding those cases when it does not apply. There are some circumstances that relieve an employee from the obligation to compensate for the harm caused to him. The first of them is property damage due to force majeure. These include natural disasters(flood, earthquake), man-made circumstances (enterprise accident, fire) or social disasters (terrorist attack, war, armed attack, etc.).

The second circumstance is normal economic risk. The criteria for this concept can be interpreted in different ways. If the employee made every effort and care in relation to the property, fulfilled all the instructions assigned to him by management, if the damage was caused for the benefit of the health and life of people or the set goal could not be achieved in any other way, then it is removed.

The third circumstance is causing harm in conditions of extreme necessity. This point includes self-defense, which resulted in property damage.

And the last circumstance is the employer’s failure to fulfill his duties. If the management committed violations of the storage of property and the conditions for its storage, then the employee is not responsible for the damage caused.

Almost any organization develops a special system of incentives and criteria for assessing employee performance. Such systems are supported by the basic principle of financial responsibility. It lies in the fact that every employee who is directly related to the property is responsible for the results of their work. At enterprises, there are 2 forms of organization of this type of responsibility: and collective.

The most common is 1 form. It means that the employee who is responsible for the organization’s property:

will have to compensate for damage caused to certain goods. We wrote about such an agreement. represents the responsibility of not one person, but a group of financially responsible persons (of this type).

As for, for them the principle of this type of obligation is expressed in a system of fines and penalties for non-compliance with tax legislation.

Deadlines

Management may hold an employee liable for property damage within one year after discovery of the violation. If an employee refuses to compensate for actual damage caused by him, he can be brought to such obligations in court.

With the agreement of both parties, according to labor legislation, payment by installments can be made. The employee is obliged to provide his superiors with a document in which he indicates the exact terms of repayment of the debt.

Target

There are two main goals of this type of obligation. Firstly, bringing an official to financial responsibility significantly reduces the number of violations which entail property damage.

Secondly, labor legislation clearly indicates the conditions for this type of responsibility, its types, special procedure and principle. This helps protect the employee’s wages from illegal and unreasonable penalties from the employer.

Limits

According to Article 241 of the Labor Code of the Russian Federation, the amount of monthly payments for causing property damage should not exceed the average income of the employee. This is the main limit of financial liability.

The employer's right to refuse to collect damages from the employee

The employer, according to Article 240 of the Labor Code of the Russian Federation, may refuse to recover damages for the harm caused by the employee. To do this, he must refer to certain circumstances. Instead of collecting the debt in full or in part, the employer may take disciplinary action against the employee.

This article has been updated. The property owner may reject the employer's wishes and force the offender to pay damages.

Legal entities that are directly related to property also have some obligations. For example, an employer who did not comply with the rules for storing and operating goods must compensate the owner for all damage caused.

So, financial responsibility is a term without which it is impossible to imagine labor law. The obligation to compensate for property damage caused may be imposed on both individuals and legal entities.

The amount of monthly payments, the procedure for penalties, and types of liability are regulated by labor legislation. Any departures are illegal.

The main purpose of this type of liability in production is compensation for harm caused. Any collection measures must be carried out either on a voluntary basis or through judicial proceedings.

The employee is liable if he causes damage to the employer, if the employer proves:

• the fact of causing material damage to him;
• an offense committed by the employee, i.e. a guilty action or inaction, resulting in damage;
• the presence of a causal connection between the action or inaction of the employee in the labor process that caused the damage;
• amount of damage;
• in cases established by law, the existence of an agreement on full financial liability.

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

The employee is required to provide a written explanation of the cause of the property damage he caused. The employee is obliged to give such an explanation by virtue of Part 2 of Art. 247 Labor Code of the Russian Federation. If the employee refuses or evades providing an explanation, the employer draws up a corresponding act. In Part 2 of Art. 247 of the Labor Code of the Russian Federation does not specify the period required for giving explanations. Since the basis of financial liability is an offense, a disciplinary offense, in this case the period provided for in Part 1 of Art. 193 of the Labor Code of the Russian Federation - two working days.

In contrast, an employee not only has the right to familiarize himself with all the materials of the verification of his offense, which resulted in material damage, to appeal them, to submit petitions, i.e., to contribute to the objectivity of the verification, but also to attract a representative for this purpose (Part 3 of Article 247 of the Labor Code of the Russian Federation ). Such a representative may be a specialist who, in the employee’s opinion, provides the necessary knowledge for an objective, complete and legal analysis of the charges brought against the employee for committing an offense that caused material damage to the organization.

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

Direct actual damage is understood as a real decrease in the employer’s available property or deterioration in its condition (including property of third parties located by the employer, if he is responsible for its safety), as well as the need for the employer to make costs or unnecessary payments for the acquisition or restoration of property or for compensation for damage caused by the employee to third parties.

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

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

An employer must go to court to recover damages if:

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

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

With the consent of the employer, the employee can compensate for the damage by transferring equivalent property to the employer or repair the damaged property.

The employer may refuse to collect damages, reduce their amount, bring the employee to disciplinary liability, or send materials to law enforcement agencies if the damage was caused by an administrative offense or crime.

The legislator in certain cases establishes full financial employee liability for damage caused to the employer. It varies according to content offenses and by subject composition.

In Art. 243 of the Labor Code of the Russian Federation stipulates cases of full financial liability of an employee:

• a situation where labor legislation imposes financial liability on an employee for damage caused by him to the employer during the performance of his job duties (full financial liability, for example, accrues to a telecom operator on the basis of Federal Law of July 7, 2003 No. 126-FZ “On Communications” );
• shortage of valuables entrusted to the employee on the basis of a special written agreement or received by him under a one-time document;
• intentional causing of damage to the employer's property by an employee;
• causing damage while under the influence of alcohol, drugs or other toxic substances;
• causing damage as a result of a crime committed by an employee and established by a court verdict;
• damage caused by an employee’s administrative misconduct, if administrative measures were applied to the employee or the fact of damage to the employer’s property was established;
• disclosure of information constituting a state, official, commercial or other secret protected by law, if this is provided for by federal law, for example “On Trade Secrets”;
• damage was caused while the employee was not performing his job duties, i.e. the damage was caused by the employee in his free time. At the same time, he uses the means of production belonging to the employer, as a rule, in his own interests.

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

An employee under the age of 18 bears full financial responsibility for damage caused to the employer only:

• for intentionally causing damage;
• if the damage was caused by a minor employee under the influence of alcohol, drugs or other toxic intoxication;
• for damage caused as a result of an administrative offense or crime (Part 3 of Article 242 of the Labor Code of the Russian Federation).

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

If the list approved by the Ministry of Health and Social Development of Russia on December 3, 2002 changes, the agreement on full financial liability should be revised accordingly.

Along with the labor legislation, it is provided collective (team) responsibility for property damage caused to the employer. It is also negotiable. The employer enters into an agreement with a collective (team) of workers if, when they jointly perform work related to the storage, processing, sale (vacation), transportation, use or other use of the valuables transferred to them, it is impossible to differentiate the responsibility of each employee for damage and conclude an agreement with him on full individual financial liability (Part 1 of Article 245 of the Labor Code of the Russian Federation). The standard form of such an agreement was approved by a resolution of the Russian Ministry of Labor dated December 3, 2002.

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

The agreement on (team) financial responsibility stipulates: 1) the subject of the agreement; 2) rights and obligations of the team (team) and the employer; 3) the procedure for maintaining records and reporting; 4) procedure for compensation of damages. The contract is signed by the employer, the head of the team (team), and all members of the team (team).

The team leader (foreman) is appointed by order (instruction) of the employer, taking into account the opinions of the members of the team (team). During the absence of the foreman (manager), the employer assigns his duties to one of the members. The contract is not renegotiated when individual workers leave or join the team (team). In the event that more than 50% of the original team members or the foreman leave, the contract is renegotiated. When individual employees are admitted to the team, the contract specifies the date of entry and the employee’s signature.

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

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

The amount of damage caused to the employer's property is determined by actual losses, which are calculated at market prices in force in the area at the time of the damage. However, it cannot be lower than the value of the lost property according to accounting data. In this case, the degree of wear and tear of the property is taken into account.

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

The Labor Code of the Russian Federation stipulates the circumstances excluding financial liability parties to the employment contract: force majeure, normal economic risk, extreme necessity, necessary defense, failure of the employer to fulfill the obligation to provide adequate conditions for storing property entrusted to the employee.

Full financial responsibility of the employee (nuances)

Full financial liability of an employee implies the obligation to compensate the employer for damage caused by the employee’s guilty actions. Cases of occurrence of full financial liability and its specific features are disclosed below.

Full financial responsibility of employees. Basic provisions

In situations regulated by law, an employee may be held fully financially liable. This means that the named person has an obligation to compensate for the damage caused by the employee’s unlawful guilty act in full (Article 242 of the Labor Code of the Russian Federation of December 30, 2001 No. 197-FZ).

The following employees may be held liable for full financial liability:

• with whom an agreement on full financial responsibility was lawfully signed - by virtue of such an agreement (Article 244 of the Labor Code of the Russian Federation);
• who are heads of organizations - by force of law (Article 277 of the Labor Code of the Russian Federation);
• who are chief accountants or deputy heads of organizations, provided that their employment contracts include a clause on full financial responsibility - by virtue of such an agreement (paragraph 10 of article 243 of the Labor Code of the Russian Federation);
• in respect of which the fact of a shortage of valuables entrusted to them on the basis of a special written agreement or transferred to them under one-time documentation was revealed - by force of law (Article 243 of the Labor Code of the Russian Federation - hereinafter to the end of the list);
• intentionally caused damage;
• caused damage while under the influence of alcohol, drugs or other types of toxic substances;
• caused damage as a result of the commission of a crime (with the obligatory presence of a conviction by a judicial authority);
• causing damage as a result of an administrative offense (with the mandatory establishment of the fact of such an offense by the appropriate government agency);
• who have published information classified as a secret protected by law in cases regulated at the legislative level;
• who caused damage to the employer not while performing their own job functions (for example, during non-working hours, etc.).

Full liability agreement

A full financial liability agreement can be signed:

• with a specific employee (full individual financial responsibility);
• with a group of persons - a brigade, a collective - when employees jointly perform established types of work (full collective [team] financial responsibility).

According to the law, such an agreement must be concluded only with employees filling positions or performing work included in the “List of Positions and Works...”, approved. Resolution of the Ministry of Labor of the Russian Federation dated December 31, 2002 No. 85 (hereinafter referred to as List No. 85). Only in this case will the said agreement have legal consequences (paragraph 2 of Article 244 of the Labor Code of the Russian Federation). In addition, offering to sign such a document in situations established by law is a right, not an obligation of the employer.

If an agreement on full financial liability was concluded with a person whose age is less than 18 years, it will be considered invalid (Article 244 of the Labor Code of the Russian Federation).

In addition to the list of positions and types of work, the aforementioned resolution of the Ministry of Labor of the Russian Federation also defines standard forms of agreements on full financial responsibility. The courts indicate that it is mandatory to use the standard form of the contract as a condition for the employee’s full financial responsibility (for example, the appeal ruling of the Krasnoyarsk Regional Court dated January 30, 2013 in case No. 33-814).

When considering disputes regarding the invalidation of collective agreements on financial liability, the courts proceed from the fact that the collective (team) is a single entity. Accordingly, the impossibility of concluding this type of agreement with at least one member of a team (team) entails the recognition of such an agreement as invalid in relation to all members of the team (team) - for example, the ruling of the Chelyabinsk Regional Court dated July 4, 2011 in case No. 33-7148/2011.

Is it possible to refuse to sign an employee’s full financial liability agreement?

Employers quite often oblige their employees to enter into full financial responsibility agreements, threatening to recognize disagreement with signing it as failure to comply with management’s orders with all the ensuing consequences. Regarding this situation, the law enforcer gives the following explanations (clause 36 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2):

• if the functionality for servicing material assets is the main job responsibility, which was announced to the employee when he was hired, and this employee knew that, according to the law, the employer has the right to offer him to enter into an agreement on full financial responsibility, then if all of the above facts are present, refusal concluding the said agreement should be qualified as failure to fulfill labor duties with all the ensuing consequences (i.e., subject to disciplinary action);

• if the position of a person already hired or the functionality performed by him was eventually included by the legislator in List No. 85, then the employee who refused to enter into an agreement on full financial responsibility should be offered another job (see paragraph 3 of Article 74 of the Labor Code of the Russian Federation), and if the employee refuses it or there is no such work, then the employment contract with the named person is terminated on the basis of clause 7 of Art. 77 Labor Code of the Russian Federation.

Thus, the employer has the right to demand the signing of an agreement on full financial responsibility if, upon employment, the employee was notified of the possibility of receiving an offer to conclude this agreement in the future. It is better to immediately record the fact of such notification on paper (as a clause in an employment contract, job description or other document) in case the said dispute with an employee needs to be resolved in court and, accordingly, evidence of the employer’s compliance with this condition will be needed.

Conditions for bringing an employee to full financial liability

When considering the issue of the possibility of involvement, it is necessary to evaluate the totality of the facts listed below (clause 4 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 16, 2006 No. 52 (hereinafter referred to as PVS No. 52):

• the absence of circumstances that make it possible to exclude the employee’s financial liability (for example, full financial liability arose only by virtue of the relevant agreement, but the employee was not yet 18 years old or the damage was caused due to force majeure circumstances, etc.);
• the illegality of the actions of the entity that caused the damage;
• degree of guilt of the causer of damage;

• the presence of a cause-and-effect relationship between the employee’s act and the damage caused;
• the fact of the existence of direct actual damage (can be proven by the results of an inventory or confirmed by an act of a government agency);
• limits of damage caused;
• compliance with the requirements of the law regarding the conclusion of an agreement on full financial liability.

The employer must prove all the above circumstances.

Presumption of employee guilt

However, if the occurrence full financial responsibility of the employee must happen by virtue of the contract and the employer has proven the following facts (paragraph 2, paragraph 4 of PBC No. 52):

• the existence of legal grounds for signing an agreement on full financial responsibility with this employee;
• the fact that the named employee has a shortage of the materiel entrusted to him,

the obligation to prove the absence of guilt in one’s actions is transferred to the employee, i.e. the presumption of guilt of the employee comes into force.

As evidence of his innocence, the employee may refer, among other things, to those provided for in Art. 239 of the Labor Code of the Russian Federation, circumstances excluding financial liability. When assessing the employee’s arguments, the court also takes into account witness testimony (ruling of the Leningrad Regional Court of St. Petersburg dated February 25, 2016 in case No. 33-987/2016).

Determining the amount of damage to be compensated

Calculation of damage caused to the employer by the guilty actions of his employee is, as a general rule, made on the basis of the amounts of actual losses (Article 246 of the Labor Code of the Russian Federation). It is taken into account that the following amounts:

• are calculated on the basis of current market prices at the time of damage, characteristic of the given territory. If it is not possible to establish a specific date of harm, the employer has the right to determine its volume as of the day of discovery (paragraph 2, clause 13 of PBC No. 52);
• cannot be lower than the value of the property according to accounting information, adjusted for the percentage of depreciation of the said property.

Also, taking into account the definition of the content of the employee’s financial responsibility (see Article 238 of the Labor Code of the Russian Federation), it is necessary to understand that lost income (lost profits) cannot be included in this calculation.

Thus, the employer initially establishes the amount of damage after checking the amount of such damage and the reasons for its occurrence. In turn, if a dispute arises that cannot be resolved through negotiations between the employer and the employee who caused the harm, the court may make adjustments to the calculation submitted by the employer.

Limitation of the powers of the judicial authority when changing the amount of damage to be compensated

The judicial body is not authorized in its decision on the amount of damage to be recovered to go beyond the upper limit of the amount of the stated claims, even if during the consideration it turns out:

• that there are all grounds for bringing to full financial liability an employee in respect of whom the employer has made demands only within the limits of his average monthly earnings (clause 7 of the PBC No. 52);
• that the market prices on the basis of which the damage was calculated have increased, and the employer demands in this regard to increase the amount of damage calculated on the day of infliction (discovery) (paragraph 3, clause 13 of PVA No. 52).

On the other hand, the court cannot satisfy the employee’s petition containing a request to reduce the amount of compensation for damage due to a fall in market prices relative to those prices that were relevant on the day the damage was caused (discovered) and on the basis of which the amount of compensation was calculated by the injured party .

Reducing the amount of damages recovered in court

Provisions of Art. 250 of the Labor Code of the Russian Federation also applies to situations where full financial responsibility of the employee.

The following are subject to the court's assessment:

• the degree and form of guilt of the harm-doer. For example, the amount of damage to be compensated was reduced by the court taking into account the reckless form of the defendant’s guilt (see the decision of the Olonetsky District Court of the Republic of Karelia dated February 25, 2016 in case No. 2-133/2016);
• financial situation of the guilty employee (amount of income, number of family members, presence of dependent persons, obligation to make payments according to writs of execution, etc. - see paragraph 16 of PBC No. 52). So, for example, in the event of full financial responsibility of the employee by virtue of the agreement, the court reduced the amount of damage to be compensated due to the defendant being on maternity leave and the need to pay rent (see the decision of the Supreme Court of the Republic of Tatarstan dated March 10, 2016 in case No. 33-4094/2016);
• other circumstances that make it possible to reduce the amount of the penalty (for example, the presence of the employer’s fault in the occurrence of a situation that resulted in damage to his property - for example, the decision of the Kanashsky District Court of the Chuvash Republic dated February 18, 2016 in case No. 2-20/2016).

In this case, a complete exemption from compensation for damage is not allowed (clause 16 of the PVS No. 52). In addition, if the damage was caused by a crime committed for personal gain, then reducing its size by the judicial authority is not allowed (paragraph 2 of Article 250 of the Labor Code of the Russian Federation). In particular, the court did not take into account the promise of the employee who committed the theft of property to return the stolen property and made a decision to recover damages from the defendant in full. The defendant’s arguments about his own costs for maintaining the stolen property were also not accepted (see the decision of the Novokuznetsk District Court of the Saratov Region dated 03/09/2016 in case No. 2-114/2016).

Is the employer obliged to recover damages from the employee in the event of a case of full financial liability of the person?

An employer who has suffered damage due to the fault of his employee has the right to refuse appropriate penalties from the tortfeasor in full or in part, taking into account the circumstances of the current situation (Article 240 of the Labor Code of the Russian Federation). This right can be used by the employer, including in relation to an employee whose full financial liability has arisen by force of law or by virtue of a contract (paragraph 2, paragraph 6 of PBC No. 52).

The employer can refuse to collect before the dispute is referred to the court, as well as after the statement of claim has already been sent (see Article 39 of the Civil Procedure Code of the Russian Federation of November 14, 2002 No. 138-FZ).

At the same time, the owner of the employer’s property can limit this right of the employer in situations regulated by law.

This right of the employer cannot be freely interpreted in favor of the interested party and used in violation of the rights of others. So, for example, the employer distributed the total amount of the shortage among currently working employees who entered into an agreement with him on full collective financial responsibility, without taking into account in this distribution the same financially responsible persons who quit before the unscheduled inventory was carried out, during which such a shortage arose. The court recognized such calculations as unlawful and indicated that, provided for in Art. 240 of the Labor Code of the Russian Federation, the law does not yet relieve the employer from the need to take into account previously resigned employees when distributing responsibility (see the appeal ruling of the Perm Regional Court dated January 27, 2016 in case No. 33-386/2016). Simply put, you don’t have to make demands on them, according to Art. 240 of the Labor Code of the Russian Federation, but this should not infringe on the rights of other employees.

Entrusted and provided property - what is the difference?

Conclusion of an agreement on full financial responsibility of the employee is permissible only in relation to property entrusted to a person.

Often, concepts such as entrusted property and property provided by the employer to the employee for the latter to perform his job functions are identified by the parties to the employment contract when it comes to holding the employee financially liable for damage or destruction of the provided property.

Entrusted property is considered to be property in respect of which an employee, by virtue of official duties or a special assignment, exercises certain powers to dispose, manage, store, etc. (see “Methodological recommendations...”, approved by the FSSP of Russia dated April 15, 2013 No. 04-4 ).

In practice, cases are common when an employer tries to attract his employee - a driver with whom a contract has been concluded full financial responsibility of the employee, - to compensation for damage or loss of the car provided to the latter. However, the maximum that an employer can count on in this situation (if the occurrence of financial liability is excluded by law) is compensation for damage in an amount not exceeding the average monthly earnings of such an employee. The law enforcer explains: since the vehicle is not entrusted to the employee for transportation or delivery by the employer’s property, but represents a material and technical means that is necessary to perform the driver’s labor functions, then the validity of the agreement on full financial responsibility of the employee it does not apply (for example, the resolution of the Presidium of the St. Petersburg City Court dated March 12, 2014 in case No. 44g-38/14).

So, full financial responsibility of the employee can be established both by law and by agreement of the parties. An agreement on full financial liability gives rise to legal consequences only if it is concluded with the appropriate person.

The employer has the right to refuse, in full or in part, to recover damages caused to him by his own employee.

The law enforcement officer, taking into account the specific circumstances of the case, is entitled to reduce the amount of the employer’s claims to recover damages from the employee.

Material liability of the employeeis one of the types of liability that may be applicable to a person in an employment relationship with an employer. It can occur when the requirements of legislation or local regulations are violated, as well as as a result of causing damage to them. Below we will talk about existing typesemployee's financial liabilityand the grounds that allow such measures to be applied to the perpetrators.

On the financial responsibility of the employee to the employer

An employee’s financial liability may arise in cases where his actions (or, conversely, inaction) were the basis for causing material harm to the employer.

It is important to note that prosecution is possible only if a number of conditions are met, the main of which are:

• availability of recording and evidence of the damage that was caused;
• the presence of a cause-and-effect relationship between the damage and the actions (inaction) of the employee that led to such consequences;
• determining the amount of damage caused.

At the same time, an employee can be brought to full financial liability only in cases where an appropriate agreement has been signed with him.

Download the contract

For liability to occur, an inspection is also a necessary condition. This is carried out by authorized representatives of the employer or by a specially created commission appointed by order of the employer.

During the inspection period, materials are collected that help restore the picture of what happened and identify the culprit. It is important to correctly and reasonably establish the amount of damage caused. The employee has every right to familiarize himself with all materials received during the inspection, make his objections and give explanations.

After the inspection, the employee is introduced to its materials, allowing him to express his own opinion regarding the decision made by the employer and the established amount of damage. The opinion must be expressed in writing, and if the employee refuses to familiarize himself or give explanations, the employer draws up a corresponding act.

Download the act

An employee’s financial liability can be of several types:

• limited;
• full;
• individual;
• collective.

On the limited financial liability of an employee

Limited liability is its most common type: in this case, employees compensate for the damage caused only to a certain part of the total amount of damage (incomplete amount of damages). In Art. 241 of the Labor Code of the Russian Federation states that an employee can be held liable only within the limits of his average monthly earnings - this is called the employee’s limited financial liability.

In this case, the employer has the right to independently (without going to court) impose a financial penalty on the employee. On the other hand, the employee is also given the right to refuse voluntary repayment of debt to the employer - then the controversial situation is considered in court.

On the employee’s full financial responsibility

By analogy with the previous version of liability, the employee’s full financial liability is a variant where actual damage is compensated to the employer in full, regardless of the size of the employee’s salary.

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An employee can be brought to this kind of material liability on grounds the range of which is quite limited, as evidenced by Art. 243 TK:

1. Liability can arise only when illegal actions are committed by the employee intentionally, that is, he knows about the occurrence of adverse consequences and desires them to occur.
2. Full financial liability of an employee can also be discussed in cases where he commits guilty actions while under the influence of alcohol/toxic/drugs or damage is caused during the commission of a crime/offense. It is important to say that the fact that the employee committed a crime must be established by the court, and the fact of the commission of the offense must be established by the authorized government agency.
3. An employee can also be brought to full financial liability for disclosing state/commercial or any other secret protected by law.
4. A similar type of liability applies when an employee is entrusted with valuables, either under a specially concluded agreement or under a one-time document.
5. Another basis for bringing an employee to full financial liability is the infliction of damage as a result of actions not related to the performance of work duties.

It should be said that an employment contract concluded with the chief accountant or any of the deputy managers may also contain conditions on full financial responsibility.

Agreements on this level of responsibility can be concluded with those employees who, in the course of their work, are engaged in the transportation, maintenance or receipt of goods and materials. At the same time, the list of works and professions requiring the conclusion of such a document is established by Resolution of the Ministry of Labor dated December 31, 2002 No. 85.

If we talk about the financial liability of workers under 18 years of age, then it is discussed in the provisions of Art. 242 of the Labor Code, in particular, it can only occur if they intentionally cause damage, cause it in a state of any type of intoxication, or as a result of committing an administrative offense/crime.

Agreement on individual and collective liability (sample 2017-2018)

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Now let's look at such types of material responsibility as individual and collective.

In the first case, the employee’s financial liability should be considered to be that which is applicable to a specific employee in the event of material damage to the employer. It is important to note that this type of liability can be discussed in cases where damage was caused as a result of proven illegal actions of a particular employee or due to his inaction.

Collective financial liability occurs in cases where an agreement on it is concluded between the employer and a team (team) of employees. In Art. 245 of the Labor Code of the Russian Federation states that a liability agreement of this kind is concluded with a team of workers who, due to the nature of their activities, have to transfer, receive, transport, store, service or otherwise have free access to inventory items. But this is only possible on the condition that the specific nature of the team’s activities does not allow a specific employee to be held individually accountable.

It should be noted that even if an agreement on collective financial responsibility of workers is concluded, this does not mean that an individual employee of the team will have to compensate for damage in any situation. According to paragraph 3 of Art. 245 of the Labor Code, if an employee manages to prove his non-involvement in actions (inaction) that resulted in damage to the employer, then he will be released from liability.

Employees with whom a collective liability agreement has been concluded have the right to voluntarily enter into a damage compensation agreement with the employer. If the employees do not agree to compensation for damage, then the dispute is referred to the court, which must determine the degree of guilt of each of the employees and determine the amount of financial responsibility of each in proportion to their guilt.

The agreement on collective financial liability of the 2017-2018 model (as well as previous years) cannot be renewed if new employees have been hired to the team. However, the agreement can be changed at the initiative of the employer or upon dismissal of more than 50% of the team.

When should you go to court?

In accordance with current legislation, the employer has the right to independently bring a subordinate to liability of a material nature only when it comes to the amount of damage that does not exceed the employee’s average monthly earnings. In addition, the employer must decide to hold the employee financially liable no later than one month from the date of final determination of the amount of damage caused. If the period for making such a decision has expired, you will have to demand compensation for damage, regardless of its size, in court (Part 2 of Article 248 of the Labor Code of the Russian Federation).

If the amount of damage determined during the inspection exceeds the employee’s average monthly earnings, then in order to bring the latter to financial responsibility it is necessary to go to court. Seeking protection from the courts is also necessary in cases where the damage was caused by an already dismissed employee who is not currently in an employment relationship with the employer.

In addition, going to court to bring to financial responsibility an employee who does not agree to voluntarily compensate for the damage caused is also practically the only option.

It should also be noted that holding an employee financially liable does not prevent him from applying other sanctions provided for by law, including bringing him to criminal, administrative or disciplinary liability.

On the financial liability of the employer to the employee

In addition to the financial liability of the employee, the legislator has provided for the same for the employer to him - and in this case there can be no talk of limited financial liability. The employer is always liable for the damage caused in full (that is, in an amount equal to the losses actually incurred by the employee).

Such liability may arise in the following cases:

1. When an employee is unlawfully deprived of the opportunity to work. Of course, the latter must prove that such deprivation is unlawful. This item should include: illegal dismissal, suspension from work, the employer’s refusal to comply with the order given to him regarding the employee’s reinstatement at work, delay in issuing his work book or entering incorrect or erroneous information into it, etc.
2. In case of damage to any employee's property due to the fault of the employer. This should include clothing, personal belongings and technical devices belonging to the employee, including those that the employee did not hand over for safekeeping (for example, in the wardrobe).
3. In case of delay in wages, as well as other payments due to the employee in accordance with current legislation. This violation entails not only bringing the employer to administrative or criminal liability (depending on the severity of the violation), but also civil liability - in the form of compensation to the employee for unpaid payments, and possibly a penalty.

It should be noted that the employer’s liability for late payment of wages to an employee occurs regardless of whether he is directly at fault for the act committed. For example, if the non-payment is related to banking activities, the employer is still liable for failure to pay wages on time.

Based on the above, we can conclude that the financial responsibility of the employee is inextricably linked with the rights of the employer, and the financial responsibility of the employer with the rights of the employee. At the same time, the application of penalties to each of the parties must be carried out either on the basis of a voluntary agreement or on the basis of a court decision - and only in compliance with the procedure provided for by current legislation.

Financial liability for damage caused to the employer
(organization, enterprise, institution and individual entrepreneur), can be carried by any employee - both an ordinary employee and a manager. The fundamental legislative act defining the employee’s obligation to compensate for damage caused to the employer is the Labor Code of the Russian Federation, which in Chapter. 39 “Financial liability of the employee” establishes what kind of damage is subject to compensation and under what conditions the employee is obliged to compensate for this damage. In addition, the Labor Code of the Russian Federation defines the limits and procedure for collecting damages, provides guarantees when imposing financial liability on an employee, as well as the employer’s right to refuse to collect damages. Knowledge of the provisions of the Labor Code of the Russian Federation will allow heads of organizations and individual entrepreneurs to correctly determine cases of application of one or another type of financial liability, its limits, as well as the guilt of the specific employee (workers) on whom it is assigned.

According to Part 1 of Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate for direct actual damage that he caused to the employer.

Financial liability for damage caused to the employer is assigned to the employee only if the damage was caused by his guilt. Only those employees with whom a written agreement has been concluded will receive full compensation for damages. Responsibility for damage caused is not removed from the employee even after the termination of the employment relationship, if the damage was caused during the validity of the employment contract. Financial liability implies the withholding of funds from the employee to compensate for the material damage caused by him in the manner and amount established by the Labor Code of the Russian Federation. When determining the amount of damage, only direct actual damage is taken into account and lost income that the employer could have received, but did not receive as a result of the employee’s unlawful actions, is not taken into account, i.e. lost profit. Direct actual damage is understood as a real reduction (deterioration) of the employer’s available property (including property of third parties located 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 for the restoration or acquisition of property.

The amount of damage is calculated based on market prices prevailing in the area on the day the damage occurred. But it cannot be lower than the residual value of the lost or damaged property according to accounting data. When determining damage, actual losses within the established norms of natural loss are not taken into account.

Material damage is not recovered from the employee if it arose as a result of force majeure - an emergency and unpreventable event, the elimination of a danger threatening the person, as a result of necessary defense. Financial liability also does not arise if the employer himself fails to fulfill his obligations to ensure proper conditions for storing property entrusted to the employee (Article 239 of the Labor Code of the Russian Federation). Thus, labor legislation directly provides that an employee may be considered guilty
in causing damage if his actions were committed intentionally or through negligence, i.e. illegal. Particular attention should be paid to the provisions of Art. 240 of the Labor Code of the Russian Federation, which provides for the right of the employer, at its own discretion, to decide the issue of holding an employee financially liable: to recover from him the cost of damage or to completely or partially refuse to recover from the guilty employee the damage caused by him.
If the employer decides to recover from the employee the damage caused by him, then compensation is made in the amount of two types of liability provided for by labor legislation - limited and full (Articles 241, 242 of the Labor Code of the Russian Federation).

At limited liability damage is compensated in an amount not exceeding the employee’s average monthly earnings. That is, the smaller of the two amounts is chosen: if the damage is less than the salary, it will be compensated in full. If the salary is less than the damage, an amount equal to the salary is recovered, i.e. Some of the damage will not be reimbursed. And this is a general rule. Full financial liability is an exception and is possible only for those employees who directly serve or use monetary, commodity valuables or other property. At full financial responsibility damages are compensated without any restrictions, but this type of liability may apply only in cases provided for in Art. 243 Labor Code of the Russian Federation:

1) when, in accordance with the Labor Code of the Russian Federation or other federal laws, the employee is financially responsible in full for damage caused to the employer during the performance of the employee’s job duties;

2) shortage of valuables entrusted to the employee 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 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 (official, commercial or other), in cases provided for by federal laws;

8) damage was caused while the employee was not performing his job duties.

Persons under 18 years of age may bear full financial liability only for intentionally causing damage while under the influence of alcohol, drugs or toxic substances, as well as for damage caused as a result of a crime or administrative offense (for example, in the case of criminal prosecution for theft).

When hiring employees for certain positions or work related to the servicing of monetary and commodity assets, heads of organizations (individual entrepreneurs) must conclude agreements with them on full individual or collective (team) financial responsibility (Part 1 of Article 244 of the Labor Code of the Russian Federation). If financial liability is established by federal law, then in this case it is not necessary to conclude an agreement on full financial liability.

Resolution of the Ministry of Labor and Social Development of the Russian Federation dated December 31, 2002 No. 85 approved the Lists of positions and work filled or performed by employees with whom the employer can enter into written agreements on full individual or collective (team) financial responsibility (hereinafter referred to as the Lists), as well as Standard forms of agreements on full liability1. Employers should be guided by the Lists when concluding agreements on full financial responsibility, both individual and collective. Collective (team) full financial liability for causing damage to the employer is provided for in Art. 245 Labor Code of the Russian Federation. Agreements can be concluded in organizations of any legal form and form of ownership. Agreements on full financial liability can be concluded with employees specified in the Lists, subject to the following conditions:

– the employee reaches 18 years of age;

– direct transfer of monetary, commodity valuables or other property for storage, processing, sale (release), transportation or use in the production process, i.e. for maintenance or use.

The lists of positions and work replaced or performed by employees with whom the employer can enter into written agreements on full financial responsibility for shortages of entrusted property are not subject to broad interpretation. When combining professions (positions), an agreement can be concluded with the employee if the main or combined profession (position) is provided for in the Lists. An agreement on full financial liability concluded with an employee whose position (job) is not in the Lists has no legal force.

An employee who has entered into an agreement on full financial liability with a private entrepreneur bears full responsibility for ensuring the safety of those valuables that he personally received according to an invoice or other accounting document, despite the fact that in some cases other persons have access to these values ​​(for example , auxiliary workers).

An agreement on full financial liability is concluded with an employee on the basis of an employment contract and an order in a standard form2, approved by Decree of the Ministry of Labor and Social Development of the Russian Federation of December 31, 2002 No. 85. It specifies the responsibilities of the employee and the employer to ensure the safety of valuables. Failure by the employer to fulfill obligations to provide adequate conditions for storing property entrusted to the employee is the basis for releasing the employee from financial liability, and in appropriate cases, for imposing the obligation to compensate for damage on the guilty manager, his deputy or chief accountant.

The agreement between the manager and the employee is drawn up and signed by the parties in two copies, one of which is kept by the administration, the second by the employee. A prerequisite for the validity of the contract is the date of its conclusion, since from that moment the contract comes into force, and the employee becomes responsible for the failure to preserve the valuables entrusted to him. The employee is not responsible for any shortages that occur before the transfer of valuables. If there is no date for concluding the contract, the latter is considered invalid.

The validity of the concluded agreement on full financial liability extends to the entire time of work with the material assets entrusted to the employee. A financially responsible employee, in accordance with the contract, must promptly report all circumstances that threaten the safety of the property entrusted to him, keep records, draw up and submit to the accounting department commodity-monetary and other reports on the balances and movement of the property entrusted to him (commodity reports). At enterprises where commodity reports are not maintained, transactions of the movement of valuables are recorded in the accounting registers according to primary documents submitted by financially responsible persons.

The financially responsible person must participate in the inventory of the valuables entrusted to him, and the administration of the employer company is obliged to create conditions for the employee to work normally and ensure the complete safety of the valuables entrusted to him, to acquaint him with the current legislation on financial liability, as well as other regulations on the procedure for storage, reception , processing, sale, release, transportation and other transactions with valuables.

The employee does not bear financial liability if damage from shortage or damage to valuables was not his fault. This condition must be specified in the contract. In addition, this agreement provides for full financial liability only for shortages and damage to valuables. In all other cases, damage is compensated in accordance with the provisions of the Labor Code of the Russian Federation on limited liability.