The employer is obliged to compensate the employee for material damage caused to him by illegal deprivation of his opportunity to work (Article 234 of the Labor Code of the Russian Federation). Such liability of the employer occurs if the employee does not receive earnings as a result of:
According to the legislator, this is an exhaustive list. Until 2006 Art. 234 of the Labor Code of the Russian Federation contained an indication of other cases provided for by federal laws and the collective agreement.
Currently, the most common grounds for bringing an employer to liability is illegal suspension from work, dismissal or transfer to another job. Suspension from work, dismissal and transfer to another job are regulated by the current labor legislation. In the cases provided for by Art. 76 of the Labor Code of the Russian Federation, the employer is obliged to remove, not allow the employee to work. Therefore, most often it is not the very fact of suspending an employee from work that is illegal, but the procedure for applying such suspension is violated, which makes the corresponding order (instruction) of the employer illegal. Thus, when an employee who appears at work in a state of alcoholic, narcotic or other toxic intoxication is removed, his medical examination is not carried out or an act is not drawn up on his appearance in this form at the workplace.
There are frequent cases of transferring an employee at the initiative of the employer to another job without his consent, prompting the employee instead of an employment contract concluded for an indefinite period, to agree to fixed-term contract, or under the threat of dismissal, switch to part-time, work week.
In small businesses, when hiring, employers often do not draw up work book despite the requirements of the employee.
The employer is liable for damage caused to the property of the employee. Such liability arises in case of damage, damage, loss outerwear, headgear, other things belonging to the employee, even if he did not transfer them for safekeeping to the wardrobe. They can be stored at the workplace, on the territory of the organization in specially designated places.
The property of the employee includes monetary values. In local regulations legal acts the obligation of the employer, in case of postponing the vacation, may be provided to compensate the employee for the unreimbursable costs incurred by him for the purchase of tickets, hotel reservations, etc.
Of particular importance in market conditions management, the legislator pays timely payment wages and other payments due to the employee.
Ensuring the right of every employee to timely and in full payment of a fair wage that ensures worthy of a man existence for himself and his family, the Labor Code of the Russian Federation is enshrined as a basic principle of labor law (Article 2). A similar obligation of the employer is contained in Art. 22 of the Labor Code of the Russian Federation: “To pay in full the wages due to employees within the time limits established in accordance with this Code, the collective agreement, the rules of the internal work schedule, labor contracts.
In market conditions of managing the delay by the employer of wages is widespread. It has become commonplace. The responsibility of the employer in such cases occurs regardless of his fault.
The legislator has provided a number of guarantees for the employee, encouraging the employer to pay him in a timely manner. So, if the payment of wages is delayed for more than 15 days, the employee has the right, by notifying the employer in writing, suspend work for the entire period until the payment of the delayed amount (part 2 of article 142 of the Labor Code of the Russian Federation). In case of untimely payment to the employee of annual paid leave, the employer, upon the written application of the employee, is obliged to postpone such leave for another period agreed with him (part 2 of article 124 of the Labor Code of the Russian Federation).
In case of violation by the employer of the established deadline for the payment of wages, vacation pay and other payments due to the employee, the employer is obliged to additionally pay him monetary compensation in the amount of at least 1/300 of the refinancing rate in force at that time Central Bank RF from the delayed amounts for each day, starting from the next day after the due date up to and including the day of actual settlement. Size monetary compensation employee may be established collectively or employment contract. At the same time, it cannot be lower than it is provided for by law (Article 236 of the Labor Code of the Russian Federation).
In cases where financial position organization does not allow the employer to pay off employees within the prescribed period, a debt repayment schedule is drawn up, and in extreme cases, recognition of the organization, employer - individual bankrupt.
The employer is also liable in case of damage to the life and health of the employee. Such liability is regulated mainly by the norms of civil law.
Violation by an employer of applicable labor laws usually causes an employee mental or physical suffering. Concept definition moral damage in case of violation labor rights employees was given in the resolution of the Plenum Supreme Court RF dated December 20, 1994 No. 10 "Some questions of the application of legislation on compensation for moral damage." According to the Supreme Court of the Russian Federation. moral or physical suffering can be caused by the action or inaction of the employer, infringing on the property belonging to a citizen from birth or by virtue of law wealth(life, health, personal dignity, business reputation, immunity privacy, personal and family secrets, etc.) or violating his personal non-property rights (the right to use his name, the right of authorship and other non-property rights in accordance with the law on the protection of rights to the results of intellectual activity) or violating the property rights of citizens.
From the above definition it follows that compensation for moral damage is possible in case of a guilty offense by the employer, firstly, the natural rights of the employee, belonging to him from birth or by virtue of the law, both property and non-property; secondly, his personal non-property rights; thirdly, the property rights of the employee.
The offense of the employer can be expressed in certain actions: it can be discrimination in the field of work, dismissal without a legal basis or in violation of the established procedure, illegal transfer to another job, unreasonable disciplinary action, etc.
Guilty inaction of the employer, violating the rights of the employee, is manifested, for example, in violation of the rules of the technical process (failure to eliminate the malfunction in the equipment, failure to take the necessary measures to provide the employee with raw materials, materials, semi-finished products good quality, not familiarizing him with new or updated technological instructions, labor protection rules, which led to the release of defective products, and, accordingly, a decrease in the employee's earnings).
Guilty inaction of the employer may take place in case of non-execution of decisions of the judicial authorities on the reinstatement of an illegally dismissed employee in his previous job, etc.
Moral damage caused to an employee in the course of work is compensated in cash. Its size is determined by agreement of the parties. If the employee, in negotiations with the employer, could not agree on the need for compensation for non-pecuniary damage, or the parties did not reach an agreement on its size, then the employee can go to court. The court has the right to satisfy the requirements of the employee if the fact of the guilty infliction of moral harm by the employer on him is proved. In this case, the amount of compensation to the employee is determined by the court, regardless of the property damage subject to compensation (part 2 of article 237 of the Labor Code of the Russian Federation).
According to the Supreme Court of the Russian Federation, the amount of compensation for moral damage is determined by the court based on the specific circumstances of each case, taking into account the scope and nature of the moral or physical suffering caused to the employee, the degree of guilt of the employer, other noteworthy circumstances, as well as the requirements of reasonableness and justice.
Liability of the parties to labor relations: the responsibility of the employer to the employee
Home > Consultations > legal support > Liability of the parties to labor relations: the responsibility of the employer to the employee
The employer, as a party to an employment contract that caused damage to the other party, is obliged to compensate for it in accordance with the Labor Code of the Russian Federation and other federal laws. The material liability of the parties to the employment contract may be specified in the employment contract or agreements concluded in writing and attached to it. At the same time, the contractual liability of the employer to the employee cannot be lower than that provided for by the Code or other federal laws.
The liability of the employer to the employee is regulated by Chapter 38 of the Labor Code of the Russian Federation. The liability of the employer is possible in the following cases:
- employee compensation material damage caused as a result of illegal deprivation of his opportunity to work: illegal suspension from work (Article 76 of the Labor Code of the Russian Federation), illegal transfer (Articles 72, 73), illegal dismissal (Articles 77-84), refusal of the employer to perform or untimely and execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee in his previous job (Articles 389, 396, 357), delay in issuing a work book (Article 84.1), entering an incorrect or incorrect the wording of the reason for dismissal of the employee in accordance with the law (Article 66), non-compliance statutory terms of warning the employee about the upcoming dismissal (clause 7, article 77, subparagraphs 1, 2, article 81, article 180) and more;
- compensation for damage caused to the property of the employee;
- compensation for moral damage caused to the employee by unlawful actions (or inaction) of the employer;
- in case of violation of the established deadline for the payment of wages and other payments due to the employee (Articles 136, 140-142 of the Labor Code of the Russian Federation);
- when an employee is harmed by injury, occupational disease or other damage to health associated with the performance job duties.
Article 234 of the Labor Code of the Russian Federation obliges the employer to reimburse the employee for lost earnings in cases where the employee was deprived of the opportunity to perform his labor duties.
Damage caused by the employer to the property of the employee is compensated on the basis of Art. 235 of the Labor Code of the Russian Federation. The grounds for bringing the employer to liability under the named article include: damage to clothing in the performance of labor duties; loss of things from the wardrobe or in places designated for storage; loss of or damage to other personal property that, with the consent or knowledge of the employer, is used in the process labor activity. Damage will be reimbursed in full. With the consent of the employee, the damage can be compensated in kind. The employer is obliged to consider the employee's application for damages and make a decision within ten days. If the employee disagrees with the decision of the employer, he has the right to go to court.
The employer is obliged to compensate in cash the moral damage caused to the employee by illegal actions (for example, in the case of an illegal transfer, illegal dismissal, in case of employment discrimination). The amount of non-pecuniary damage must be determined by the parties to the employment contract. If the employer refuses to compensate moral damage voluntarily, the employee has the right to go to court.
Violation by the employer of the current labor legislation usually causes moral or physical suffering to the employee. The definition of the concept of non-pecuniary damage in case of violation of the labor rights of workers was given in the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 20, 1994 No. 10 “Some issues of the application of legislation on compensation for moral damage”. According to the Supreme Court of the Russian Federation, moral or physical suffering can be caused by the action or inaction of the employer, infringing on the material benefits belonging to a citizen from birth or by virtue of the law (life, health, personal dignity, business reputation, privacy, personal and family secrets and etc.) or violating his personal non-property rights (the right to use his name, the right of authorship and other non-property rights in accordance with the law on the protection of rights to the results of intellectual activity) or violating the property rights of citizens.
In the Labor Code of the Russian Federation in Art. 236 establishes the rules for the liability of the employer to the employee - for the delay in the payment of wages. In these cases, the employer is obliged to pay all the amounts of money due to the employee (wages, vacation pay, payments upon dismissal) with the payment of interest (monetary compensation) in the amount of not less than one three hundredth of the current refinancing rate of the Central Bank of the Russian Federation from the amounts not paid on time for each day of delay, starting from the next day after the due date of payment up to and including the day of actual settlement. By Directive of the Bank of Russia No. 2873-U dated September 13, 2012, effective September 14, 2012, the Bank of Russia refinancing rate is set at 8.25% per annum. The amount of compensation may be increased by a collective or labor agreement.
The accrual of interest due to late payment of wages does not exclude the right of the employee to index the amounts of delayed wages due to their depreciation due to inflationary processes, since such indexation is not an independent measure of the employer's responsibility, but a technical mechanism for restoring the purchasing power of money not received by the employee in a timely manner .
An employee may be harmed by injury, occupational disease or other damage to health in the performance of his job duties. Such relations are regulated by the Federal Law of July 24, 1998 "On Mandatory social insurance from accidents at work and occupational diseases” (as amended on September 30, 2015). Compulsory social insurance against accidents at work provides for compensation for harm caused to the life and health of the insured in the performance of his duties under an employment contract by providing the insured in full with all necessary types of insurance coverage, including payment of expenses for medical, social and professional rehabilitation.
Accident at work - an event as a result of which the insured received an injury or other damage to health in the performance of his duties under an employment contract and in other cases established by this Federal Law both on the territory of the insured and outside it or while traveling to the place of work or return from the place of work on the transport provided by the insured, and which entailed the need to transfer the insured to another job, temporary or permanent loss of his professional ability to work or his death
The following types of compensation for harm to an employee are possible: compensation for lost earnings, depending on the degree of loss of professional ability to work; reimbursement of additional expenses in connection with a labor injury; lump sum allowance; compensation for moral damage.
Currently, these types of compensation for harm to an employee (except for non-pecuniary damage) are not made by employers from own funds, and the Social Insurance Fund of the Russian Federation (insurer), to which employers (insurers) contribute insurance premiums for the workers. These relations go beyond the scope of labor law, therefore, compensation for harm is regulated by another branch of law - social security law.
§ 2. Liability of the employer to the employee
In the legal literature, there are three groups of cases of the employer's liability to the employee, depending on the violation of the employee's labor rights245.
The first group includes compensation for property damage resulting from a violation by the employer of the employee's right to work.
The second group combines cases of compensation for harm resulting from a violation of the employee's right to health protection, to healthy and safe working conditions in connection with causing him an industrial injury or occupational disease.
The third group includes cases of compensation to the employee for damage caused by the violation by the employer of other rights of the employee in labor relations, for example, the right to protect his personal property, in connection with the failure to ensure the safety of the employee's personal belongings during work.
Among the violations of the rights of workers in labor relations, the most common is the violation of the right to work. In accordance with Article 234 of the Labor Code of the Russian Federation, the employer is obliged to reimburse the employee for earnings that he did not receive in all cases of illegal deprivation of his opportunity to work. Such an obligation, in particular, arises if earnings are not received as a result of: illegal removal of an employee from work, his dismissal or transfer to another job; the employer's refusal to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee in his previous job; delays by the employer in issuing a work book to an employee, entering into the work book an incorrect or inconsistent wording of the reason for dismissal of an employee; in other cases stipulated by federal laws and the collective agreement.
Compensation to an employee for an unrealized opportunity to work and receive, as a result of work, a specific wage, established in accordance with an employment contract, from this or another employer is provided for by Article 165 of the Labor Code of the Russian Federation. In this case, all earnings not received for the period of time during which the employee is deprived of the opportunity to work in accordance with the terms of the employment contract are subject to compensation. this employer or conclude an employment contract with another employer in connection with the non-issuance of a work book to him or the presence of an incorrect wording of the reason for dismissal.
Earnings for the entire period of time until the employee is reinstated in his previous job or the employer provides the opportunity to start it, as well as earnings for the period of time before the actual issuance of the work book or the correct formulation of the reason for dismissal, will be considered not received. In the latter case, both earnings from this employer for the period from dismissal to the issuance of the work book or the correct wording of it, and earnings from another employer that could have been received by the employee during this period and actually not received by him due to the absence of a work book or an incorrect formulation of the reason for dismissal.
In particular, if it is proved that the date of employment could be the date of issue of the work book or the date closest to it, the wording of the reason for dismissal affected the terms of the concluded employment contract or its conclusion, then the employee, in accordance with Article 394 of the Labor Code of the Russian Federation, can prove the amount damages based on earnings not received from another employer for the entire time of forced absenteeism or based on the presence of a difference in earnings for the entire time of performance underpaid work or trials until corrections are made to the work book246.
If the court recognizes the refusal to hire as illegal, the employee who has been subjected to discrimination or unreasonable refusal to conclude an employment contract has the right, if the employer is at fault, to receive compensation for the unrealized opportunity to work in the amount of earnings not received from him for the entire period of time until the restoration of his labor rights .
In cases of illegal suspension from work, transfer of an employee to another job with this employer, only that part of the earnings that the employee did not receive as a result of such suspension or transfer is subject to compensation (the amount of earnings to be received minus that received for the same period of time from this employer) . Other payments received from this employer for the same period of time ( severance pay, temporary disability allowance), are subject to offset when collecting earnings.
The amount of material damage to be compensated by the employer (lost earnings) is proved by the employee. At the same time, information on the size of the average salary of the employee for the previous period of time, the existence of conditions in the employment contract, and other evidence are taken into account. The employer has the right to prove the legality of his actions or inaction, the absence of his fault, including in the event of a delay in issuing a work book. The guilt of the employer is assumed in case of refusal to comply with the decision of the body for the consideration of labor disputes or the state legal labor inspector on the reinstatement of the employee in his previous job and the delay in issuing a work book to the employee.
The second group combines cases of compensation to an employee for harm resulting from a violation of the employee's right to health protection, to healthy and safe working conditions in connection with causing him an industrial injury or occupational disease. These issues are discussed in those sections of this manual that are devoted to guarantees and compensations to employees in case of temporary disability, as well as in case of an accident at work and occupational disease (Articles 183, 184 of the Labor Code of the Russian Federation).
The liability of the employer for damage caused to the property of the employee is provided for by Article 235 of the Labor Code of the Russian Federation, according to which the employer, who caused damage to the property of the employee, compensates for this damage in full.
In the process of implementation by the employee of his labor function or due to impact production factors, the occurrence of emergency or emergency circumstances (fire, collapse of a building) or as a result of the actions of the employer, the employee's property may be damaged. If the damage arose through the fault of the employer, then it is subject to compensation to the employee in full.
The fault of the employer is assumed in cases of failure by him to fulfill his obligation to ensure safe conditions and labor protection, non-compliance of production facilities and products with labor protection requirements, as well as in cases of damage at the workplace or other place under the control of the employer, by any unknown persons who find themselves there in due to improper provision by the employer of their exclusion from these places. Any property entrusted to the employer for safekeeping must be returned to the employee in the same quantity and condition. The employer is obliged to take measures to preserve and prevent the possibility of causing damage to property, to stop the actions of other employees and other persons that harm him.
The employer is not liable for damage to the employee's property caused as a result of illegal actions of other (known) persons, including other employees. In this case, the harm is compensated by these persons in a civil law manner. The employer is not responsible for damage to the property of the employee that occurred in the course of the performance of his labor duties, as a result of an accident or other circumstances that exclude the fault of the employer (force majeure, the fault of the injured employee).
If damage is caused to personal property used by the employee with the consent or knowledge of the employer and in his interests, for which the employee is paid compensation for use, wear and tear and expenses associated with its use, then the employer is liable only for damage in excess of the normal (planned or permissible ) decrease in the value of this property as a result of this use(depreciation established by agreement of the parties). The amount and procedure for compensation for such damage are determined in a written agreement providing for the reimbursement of expenses resulting from the use of the employee's personal property.
The amount of damage is calculated according to market prices in force in the locality at the time of its reimbursement.
The employee's claim for damages is sent to the employer. The employer is obliged to consider the received application and make an appropriate decision within ten days from the date of its receipt. If the employee disagrees with the decision of the employer or does not receive a response within the prescribed period, the employee has the right to go to court.
In order to put into practice the principles legal regulation labor relations, consisting in the prohibition of forced labor, ensuring the right of each employee to the timely and full payment of a fair wage that ensures a decent existence for the employee and his family, the Labor Code of the Russian Federation for the first time defined the liability of the employer for delaying the payment of wages.
According to Article 236 of the Labor Code of the Russian Federation, liability arises if the employer violates the established deadline for paying wages, vacation pay, payments upon dismissal and other payments due to the employee. The employer is obliged to pay in full the wages due to employees within the time limits established by the Labor Code of the Russian Federation, the collective agreement, the internal labor regulations of the organization, labor contracts. Violation of the established deadlines for the payment of wages or payment of wages not in full are referred to as forced labor. The employer and (or) his representatives, duly authorized by him, who have delayed the payment of wages to employees, are liable in accordance with the Labor Code and other federal laws. Representatives of the employer may be the heads of branches, representative offices and structural divisions organizations and other employees endowed (by proxy, constituent documents or normative act, act of the governing body) the right to issue wages to employees.
A delay in the payment of wages is considered to be its non-payment on the day established by the internal labor regulations of the organization, the collective agreement, the labor contract, and if the day of payment coincides with a day off or non-working holiday, its non-payment on the eve of this day. Payment days must be set at least during each half of the month, with the exception of certain categories employees for whom federal laws establish other terms for the payment of wages. A delay in payment for a vacation is the payment made later than three days before the start of the vacation.
The delay in payments to the employee upon dismissal, if he worked on the day of dismissal, will be the failure to pay him on that day all the amounts due from the employer. If the employee did not work on the day of dismissal, then the non-payment of the corresponding amounts during the day when the dismissed employee presented the demand for payment, or the day following it, is considered a delay in payments. In this case, the following business day may be recognized as the next day, since the employee’s claim presented in the afternoon on the eve of a weekend or non-working day holiday may be practically impossible through no fault of the employer.
Other payments due to the employee are also subject to monetary compensation in cases of delay in their payment due to the fault of the employer. Other payments are: downtime payment, reimbursement of expenses associated with a business trip, when moving to work in another locality, reimbursement of expenses in case of using the employee’s personal property, payment of temporary disability benefits, payment of other compensations.
When establishing guilt, the employer, in accordance with Article 236 of the Labor Code of the Russian Federation, is obliged to pay all amounts due to the employee with the payment of interest (monetary compensation) in the amount of not less than one three hundredth of the Central Bank refinancing rate in force at that time Russian Federation from amounts not paid on time for each day of delay, starting from the next day after the due date of payment up to and including the day of actual settlement.
Thus, Labor Code The Russian Federation has established an increased (compared to Article 395 of the Civil Code of the Russian Federation) employer's responsibility for the use in cash worker. This is due to the stronger position of the employer as a party to labor relations. In the event of a delay in the payment of wages for more than fifteen days, the employee has the right, by notifying the employer in writing, to suspend work for the entire period of time until the payment of the delayed amount, except in special cases247.
The employer is obliged to independently accrue monetary compensation in case of delay in payments to the employee and issue it without special requirement from the side of the worker.
In cases where the employer refuses to pay the employee or fails to pay interest, the employee has the right to apply to the labor dispute resolution body (CCC or court) within three months from the date set for payment or from the date of receipt of payment without interest payable. The employee's monetary claims for the payment of interest, if they are recognized as justified, are satisfied in full
The specific amount of monetary compensation for delayed payments due to the employee (not lower than that established by the Labor Code) is determined by the collective or labor contract, and in the absence of a condition on this in them, it is taken equal to that established by the Labor Code of the Russian Federation.
An employee may suffer not only property, in connection with the performance of his labor duties, but also moral harm. In accordance with Article 237 of the Labor Code of the Russian Federation, moral harm caused to an employee by unlawful actions or inaction of the employer is compensated to the employee in cash in the amount determined by agreement of the parties to the employment contract. According to Article 151 of the Civil Code of the Russian Federation, moral harm is understood as physical or moral suffering caused by the actions or inaction of the employer, violating the personal non-property rights of the employee or encroaching on other intangible benefits belonging to him.
Thus, the condition for compensation for non-pecuniary damage is the unlawfulness of the actions or omissions of the employer. The Labor Code established the monetary form of compensation and the procedure for determining its amount. The amount of compensation for moral damage to an employee is established in each specific case by an agreement between the employee and the employer, and in the event of a dispute between them, it is determined by the court. Regardless of the amount of property damage subject to compensation, the court has the right to satisfy the employee's claim for compensation for moral damage, establishing the fact of its infliction to the employee.
The Labor Code of the Russian Federation and federal laws establish a number of cases in which an employee may be compensated for moral harm. These include cases of dismissal of an employee without a legal basis or in violation of the established procedure for dismissal, illegal transfer to another job, cases of discrimination in the field of work. Moral damage may be subject to compensation in other cases, in particular, in case of violation of the rules governing the processing and protection of the employee's personal data. In accordance with the Federal Law “On Compulsory Social Insurance Against Occupational Accidents and Occupational Diseases”248 compensation to the insured person for moral damage caused in connection with an industrial accident or occupational disease is carried out by its causer, which primarily means the relevant employer.
The fact of the presence of moral damage, a causal relationship with the unlawful actions or inaction of the employer and the latter's guilt in causing it must be proven by the employee.
The degree of moral or physical suffering is assessed by the court, taking into account the actual circumstances of causing moral harm, individual characteristics the victim and other specific circumstances testifying to the severity of the suffering he endured. The court has the right to consider a claim for compensation for moral or physical suffering caused to a person, regardless of the consideration of any property claims, since under the law liability for moral harm can be applied both along with property liability and independently249.
LIABILITY:
STEP-BY-STEP PROCEDURE
According to Part 1 of Art. 238 of the 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.
In accordance with Art. 241 of the Labor Code of the Russian Federation for the damage caused, the employee is liable within the limits of his average monthly earnings, unless otherwise provided by the Labor Code of the Russian Federation or other federal laws. According to Part 1 and Part 2 of Art. 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.
Stage 1. Establishing the amount of damage, the causes of its occurrence and all the circumstances of the case.
1.1. Checking and documenting the damage and the causes of its occurrence .
To conduct an audit, the employer has the right set up a commission with the participation of relevant experts.
Composition of the commission approved by order.
The commission checks, collects and draws up the necessary documents. Information about damage can be in different documents, for example, in audit reports, inventory reports. It is important to establish not only the fact of damage, but also its size! We also recommend establishing and documenting all the circumstances of the case, which, in the event of disputes, are established by the courts (paragraph 4 of the Decree of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 N 52).
Based on the results of the check, a document is drawn up(act of audit or otherwise) (Articles 246, 247 of the Labor Code of the Russian Federation).
All completed and submitted to this stage documents are registered in the manner prescribed by the employer in the relevant registration logs.
As part of the check, traditionally with an employee Written explanation required in order to determine the cause of the damage. But it can be an independent stage.
1.2. Demanding an explanation from the employee in writing in order to determine the cause of the damage.
The employer prepares for the employee notification of the need to provide a written explanation. The notice is prepared in two copies (one for each of the parties), registered in the manner prescribed by the employer, for example, in the register of notifications and offers to employees. The employer gives one copy of the notice to the employee. On the second copy of the notice (employer's copy), the employee writes that he has read the notice, received one copy, puts the date of receipt, and signs.
If the employee provides a written explanation, then it is considered by the employer (commission) and registered in the manner prescribed by the employer in the relevant registration log.
In case of refusal or evasion of the employee from providing the specified explanation, an appropriate Act(Article 247 of the Labor Code of the Russian Federation).
If the employer has a procedure for registering acts in a special journal, then the signed act must be registered in such a journal.
Stage 2. Recovery from the guilty employee of the amount of damage caused(Article 248 of the Labor Code of the Russian Federation).
Withdrawals can be made in one of the following ways:
2.1. By issuing an order (instruction) to recover the amount of damage not exceeding the average monthly salary. 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. An order (instruction) is registered in the manner prescribed by the employer, for example, in the register of orders (instructions). The employee is introduced to the order (instruction) under the signature.
2.2. By applying to the court with a claim for recovery by the employer in cases where the one-month period has expired from the day the damage was established 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.
2.3. By voluntary compensation by the employee for damages (in money) in cases where the employee agrees to voluntary compensation. Voluntary reimbursement is possible with installment payment. With voluntary compensation, it is necessary to draw up a written obligation of the employee to the employer to compensate for the damage.
The obligation is drawn up in two copies (one for each of the parties), if more copies are not provided for the given employer. The obligation is registered in accordance with the procedure established by the employer in the relevant register.
2.4. By transferring the employee to the employer to compensate for the damage caused by an equivalent property or by repairing the damaged property. Transfer and correction of property in such cases are allowed only with the consent of the employer. The transfer of property is usually an agreement between the employee and the employer. The agreement is drawn up in two copies (one for each of the parties), if more copies are not provided for the given employer. The agreement is registered in the manner prescribed by the employer in the relevant registration log.
P.S. Step by step procedure bringing an employee to liability is taken from the book"130 step-by-step instructions for personnel work"
Mistakes made by the employer when bringing employees to liability:
- The employer confuses the rules governing the issues of bringing employees to liability with the rules governing issues of withholding money from employees' wages.
Conclusion of agreements on full liability with improper persons.
Bringing an employee to liability, while in his actions that caused damage, there is no fault or wrongfulness.
Bringing a member of the team (team) to material liability if it is proven that he is not guilty or not in accordance with the degree of guilt.
The employer did not ensure proper storage of the material assets entrusted to the employee.
The claim to the employee for compensation for damage was made in the presence of other circumstances that exclude the material liability of the employee (normal business risk, irresistible force, urgent need, necessary defense).
Attraction to full financial responsibility of employees from whom it is possible to collect only average earnings for the damage caused.
Unreasonable bringing to liability of one employee from the team, while collective liability is in effect.
Bringing to liability a member of the team (team) is not in accordance with the degree of guilt.
Recovery from the employee, in addition to the damage caused, also lost profits not received by the employer as a result of the actions of the employee
Incorrect determination of the amount of damage caused by the employee to the employer.
A written explanation was not taken from the employee when establishing the cause of the damage.
- Other violations.
P.S. This material is taken from the book.
What is the assistance of a lawyer or lawyer in labor disputes, associated with bringing employees to liability
- Consulting
- Evaluation of available evidence
- Predicting the outcome of a case
- Drafting a claim
- Representation of interests in court
- Enforcement proceedings
The employee can perform any of the above actions independently
Still have questions on the topic "Bringing an employee to liability"?
Court decisions based on the application of the norm of Article 242 of the Labor Code of the Russian Federation.
Art. 242 of the Labor Code of the Russian Federation. Full financial responsibility of the employee
Arbitrage practice
- ... case materials, the court finds the claims to be satisfied. By virtue of Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for the direct actual damage caused to him. According to Art. 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. By virtue of Art. 243 of the Labor Code of the Russian Federation liability ...
Decision No. 2-1673/2019 2-1673/2019~M-1419/2019 M-1419/2019 dated June 28, 2019 in case No. 2-1673/2019
Soviet District Court of Samara ( Samara Region) - Civil and administrative
Or excessive payments for the acquisition, restoration of property or for compensation for damage caused by the employee to third parties. As follows from the provisions of Part 1 and 2 of Art. 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. Financial liability in full amount caused ...
Decision No. 2-2081/2019 2-2081/2019~M-1524/2019 M-1524/2019 dated June 28, 2019 in case No. 2-2081/2019
Pervomaisky District Court of Murmansk (Murmansk region) - Civil and administrative
Mirny S.A. It is also regulated by the norms of the Labor Code of the Russian Federation, since he was an employee of MC *** LLC, in connection with which, by virtue of Articles 232, 238, 242 of the Labor Code of the Russian Federation, he must bear full financial responsibility to the plaintiff. Plaintiff's representative LLC Medical Center"***" Quiring A.G. at the hearing supported the stated requirements. Respondent Peace...
Decision No. 2-3629/2018 2-748/2019 2-748/2019(2-3629/2018;)~M-3490/2018 M-3490/2018 dated June 28, 2019 in case No. 2-3629/2018
Leninsky district court of Irkutsk (Irkutsk region) - Civil and administrative
Code or other federal laws. The full liability of the employee consists in his obligation to compensate the direct actual damage caused to the employer in full (part 1 of article 242 of the Labor Code of the Russian Federation). Part 2 of Article 242 of the Labor Code of the Russian Federation provides that material liability in the full amount of the damage caused can be assigned to the employee only in cases provided for by this code ...
Decision No. 2-232/2019 2-232/2019~M-206/2019 M-206/2019 dated June 28, 2019 in case No. 2-232/2019
Zabaikalsky District Court (Zabaikalsky Krai) - Civil and administrative
Code or other federal laws. The full liability of the employee consists in his obligation to compensate the direct actual damage caused to the employer in full (Part 1 of Article 242 of the Labor Code of the Russian Federation). Part 2 of Article 242 of the Labor Code of the Russian Federation provides that material liability in the full amount of the damage caused can be assigned to the employee only in cases provided for by this Code ...
Decision No. 2-1877/2019 2-1877/2019~M-1497/2019 M-1497/2019 dated June 28, 2019 in case No. 2-1877/2019
Ordzhonikidzevsky District Court of Perm (Perm Territory) - Civil and administrative
Chapter 39 of the Labor Code of the Russian Federation defines the conditions for imposing material liability on an employee who caused property damage to the employer, including the limits of such liability (Articles 241, 242, 243 of the Labor Code of the Russian Federation). From the content of the above norms of substantive law in their interrelation and explanations given in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated (date) No. ..., it follows ...
Decision No. 2-164/2019 2-164/2019~M-132/2019 M-132/2019 dated June 28, 2019 in case No. 2-164/2019
Velikoluksky District Court (Pskov region) - Civil and administrative
Also, the need for the employer to make costs or excessive payments for the acquisition, restoration of property or for compensation for damage caused by the employee to third parties. In accordance with Art. 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 for the full amount of the damage caused can ...
Decision No. 2-5889/2018 2-605/2019 2-605/2019(2-5889/2018;)~M-4417/2018 M-4417/2018 dated June 28, 2019 in case No. 2-5889/2018
Frunzensky District Court (City of St. Petersburg) - Civil and administrative
Code or other federal laws. The full liability of the employee consists in his obligation to compensate the direct actual damage caused to the employer in full (Part One of Article 242 of the Labor Code of the Russian Federation). Part two of Article 242 of the Labor Code of the Russian Federation establishes that material liability in the full amount of the damage caused can be assigned to the employee only in cases provided for by this code ...
Decision No. 2-673/2019 2-673/2019~M-504/2019 M-504/2019 dated June 28, 2019 in case No. 2-673/2019
Shushensky District Court (Krasnoyarsk Territory) - Civil and administrative
The fault of the employee in causing damage. The full liability of the employee consists in his obligation to compensate the direct actual damage caused to the employer in full (Part 1 of Article 242 of the Labor Code of the Russian Federation). Part 2 of Article 242 of the Labor Code of the Russian Federation provides that material liability in the full amount of the damage caused can be assigned to the employee only in ...
Labor disputes on the material liability of the employee for damage, caused to the organization are dealt with directly by the court. The court is guided by the rules labor law(Article 238-250 of the Labor Code of the Russian Federation), and by the decision of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 No. 52 63.
When considering a dispute about the liability of an employee, it is necessary to check whether the following 4 conditions are present for the onset of this liability:
1) the actual damage caused to the cash property of the organization or other property of others at work;
2) the unlawfulness of the action or inaction of the employee who caused the damage;
3) fault of the employee;
4) a causal relationship between these three conditions.
According to Art. 238 of the Labor Code of the Russian Federation does not take into account lost income, as well as normal production and economic risks (for example, shrinkage, shake during transportation, etc.).
63 Decree of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 No. 52 “On the application by the courts of legislation governing the liability of employees for damage caused to the employer” (as amended on September 28, 2010) // Russian newspaper. - 2006. - № 268.
Employees are liable for the damage they cause in the amount of direct actual damage, but, as a rule, not more than their average monthly earnings (Article 241 of the Labor Code of the Russian Federation). Responsibility in full comes only in cases established by Art. 243 TK RF.
At labor dispute on the full liability of the employee it is necessary to request and verify evidence from the employer that the employee bears full, and not limited, liability. Liability in the full amount of the damage caused is assigned to the employee in the cases provided for in Art. 243 of the Labor Code of the Russian Federation.
The head of the organization is fully liable for direct actual damage caused to the organization (Article 277 of the Labor Code RF).
With collective (team) full liability, just as in the case of an individual case, the court checks whether a written agreement on full material liability has been concluded with the employees (employee) correctly, whether the employer has ensured the necessary conditions for storing valuables and what is the degree of guilt of each employee held accountable.
The employer is obliged to establish the amount and cause of damage (Article 247 of the Labor Code of the Russian Federation).
When considering a dispute, the court must clearly establish the type of material liability of the employee in this particular case.
Compensation for damage in an amount not exceeding the average monthly salary is made in accordance with the employer's order to deduct damage from wages (Article 248 of the Labor Code of the Russian Federation). This order must be issued no later than one month from the date of the final determination of the amount of damage caused by the employee. If the employee does not agree with such a deduction, he has the right to challenge it in court (Article 248 of the Labor Code of the Russian Federation). When considering this dispute, the court must check whether the established procedure and the specified deadlines have been observed, and what the amount of damage is.
For all types of liability, the court has the right, taking into account the degree and form of guilt, the specific circumstances and financial situation of the employee, to reduce the amount of damages recovered (Article 250 of the Labor Code of the Russian Federation). The amount of damage is determined on the basis of Art. 246 of the Labor Code of the Russian Federation.
In case of collective (brigade) liability, the court is also guided by a written agreement on such liability concluded by all members of the collective (team) with the employer. In this case, the court first checks the legality of the conclusion of such an agreement, and then the existence of conditions for this liability.
When considering cases of material liability of minors, it is necessary to check the legality of the agreement concluded with them on full material liability, since such agreements are concluded only with adults. The procedure for concluding these agreements and the list
When considering disputes on the liability of the employer for harm caused to the employee, the court is guided by the Federal Law of July 24, 1998 No. 125-FZ 65 and Ch. 38 of the Labor Code of the Russian Federation (Art. 234-237). At the same time, the court also takes into account the decision of the Plenum of the Supreme Court of the Russian Federation of December 20, 1994 No. 10 66.
The Labor Code of the Russian Federation establishes the obligation of the employer to compensate the employee for material damage caused in as a result of illegal deprivation of his opportunity to work, those. violation of his right to work (Article 234 of the Labor Code of the Russian Federation).
Such material liability of the employer will be calculated in the amount of earnings not received by the employee in the following cases:
a) illegal removal of an employee from work, his dismissal or transfer
water for another job, i.e. this is payment for forced absenteeism in connection with the
involved in the illegal actions of the employer;
b) if the employer refuses to perform or untimely performance by him
decisions of the body for the consideration of labor disputes (court, higher administrative
nistration) about reinstatement at work, i.e. this is a payment for a forced prog
la to the employee due to non-fulfillment or untimely fulfillment of the decision
about his reinstatement at work;
c) if the employer delays the issuance of a work book to the employee,
in the work book of an incorrect or inappropriate legislator
to the formulation of the reason for the dismissal of the employee.
Labor Code of the Russian Federation in Art. 235 expressly fixed that the employer also bears financial responsibility for damage caused to the property of the employee. He compensates for this damage in full at the market prices of the given area at the time of compensation for damage or, with the consent of the worker, compensates for the damage in kind. Here, the legislator also provided for the procedure for self-settlement of these disagreements between the employee and the employer. Thus, the employee sends an application for compensation for this damage to the employer, who must consider it and make an appropriate decision within 10 days from the date of its receipt. If the employee does not agree with the decision of the employer or if he did not receive his answer within the specified 10-day period, then he can apply for the resolution of the labor dispute that has already arisen in this case to the court. Here, a general 3-month claim period applies to the employee from
and Decree of the Ministry of Labor of the Russian Federation of December 31, 2002 No. 85 “On Approval of the Lists of Positions and Works Replaced or Performed by Employees with whom the Employer Can Conclude Written Agreements on Full Individual or Collective (Team) Liability, as well as standard forms agreements on full liability” // Rossiyskaya Gazeta. - 2003. - No. 25.
65 the federal law July 24, 1998 Ns 125-FZ "On compulsory social insurance against accidents
cases at work and occupational diseases” (as amended on 09.12.2010) // Collection of legislation
RF. - 1998. - No. 31. - Art. 3803.
66 Decree of the Plenum of the Supreme Court of the Russian Federation of December 20, 1994 No. y “Some issues of application
legislation on compensation for non-pecuniary damage” (as amended on February 6, 2007) // Rossiyskaya Gazeta. - 1995. - No. 29.
The day of receipt of an unsatisfactory decision of the employer or non-receipt of it within 10 days.
When considering labor disputes about the liability of the employer to the employee under Art. 234 and 235 of the Labor Code of the Russian Federation, the court must request from the employee and examine the following evidence in support of his claim (i.e., in the dispute of Article 234 of the Labor Code of the Russian Federation):
1) what was the deprivation of the employee of the opportunity to work expressed;
2) whether there are unlawful and illegal actions of the employer and how they are expressed;
3) what amount of material damage has been caused to the employee and is subject to compensation by the employer.
In the event of a dispute over compensation for damages caused by employee's property(Article 23 5 of the Labor Code of the Russian Federation), it is necessary to request from the employee and examine the following evidence:
1) what property of the employee and when, under what circumstances the damage was caused and how it is expressed;
2) whether there are unlawful and guilty actions of the employer in causing this damage;
3) in what amount the employer must compensate for this damage if it is caused by his actions that violate the safety of the employee's property.
Material employer's liability for late payment of wages and other payments due to the employee are provided for in Article 236 of the Labor Code of the Russian Federation.
If the employer violates the established deadline for paying wages, vacation pay, dismissal payments and other payments due to the employee, the employer is obliged to pay them with the payment of interest (cash compensation) in the amount of not less than 1/300 of the current refinancing rate of the Central Bank of the Russian Federation from not amounts paid on time for each day of delay from the next day after the due date of payment up to and including the day of actual settlement. The amount of monetary compensation paid to an employee may be increased by a collective or labor agreement. The obligation to pay the specified monetary compensation arises regardless of the fault of the employer.
When considering this dispute, the court must request and examine the following evidence:
1) whether the payment specified in the employee's claim has been accrued;
2) whether there was a delay in the payment of the accrued payment and what is the period of this delay;
3) is the employer's fault in this delay in payment of the accrued wages to the employee;
4) what amount of compensation for the delayed amounts due to be paid must be collected from the employer.
The employer can pay compensation for the delay in payment voluntarily, otherwise the court, having examined the indicated evidence, issues a ruling on extradition to the employee court order for the entire due amount. This court order is executed through the bailiff-executor.
For a malicious delay in the payment of accrued wages, the employer can be held criminally liable and sue for compensation for moral harm.
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