Which body resolves disputes about liability. Control work on - Labor law

In case of causing property damage to the employer, the employee may be brought to justice. liability. When determining the amount of damage, only direct actual damage is taken into account; lost income (lost profit) is not taken into account. Under direct actual damage according to Art. 238 of the Labor Code of the Russian Federation is understood as a real decrease in the employer's cash property or deterioration in the condition of the specified property (including property of third parties held by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs or excessive payments for the acquisition, restoration property or to compensate for damage caused by the employee to third parties.

Damage may include shortage and damage to valuables, the cost of repairing damaged property, penalties for non-fulfillment of economic obligations.

Whereas, in accordance with Art. 393 of the Labor Code of the Russian Federation when applying to the court with a claim on the requirements arising from labor relations, only employees are exempt from paying duties and court costs, the employer, when submitting statement of claim for compensation for damage caused by an employee, is obliged to pay a state fee in the amount provided for in subpara. 1 p. 1 art. 333.19 of the second part of the Tax Code of the Russian Federation.

As you know, the liability of an employee occurs when the following conditions are present simultaneously:

• 1) direct actual damage to the cash, real property of the employer;
• 2) the unlawful nature of the behavior of the employee (the damage was caused due to non-fulfillment or improper fulfillment job duties);
• 3) a causal relationship between the illegal action (inaction) and the resulting damage;
• 4) the fault of the employee who caused the damage in the form of intent or negligence.

All of these conditions are mandatory, and in the absence of at least one of them, employees cannot be held liable.

So, disputes about bringing an employee to liability arise at the initiative of the employer, in connection with which it is the latter who is obliged to prove the existence of all four conditions for the onset of liability, as well as facts indicating that the deadlines for bringing the employee to liability have been met and that there are no grounds, according to by which the employee can be relieved of such liability.

In this regard, in paragraph 4 of the resolution of the Plenum Supreme Court The Russian Federation of November 16, 2006 No. 52 emphasizes that the circumstances that are essential for the correct resolution of the case on compensation for damage by the employee, the obligation to prove which rests with the employer, in particular, include: the absence of circumstances excluding the material liability of the employee; unlawfulness of the behavior (action or inaction) of the tortfeasor; fault of the employee in causing damage; causal relationship between the employee's behavior and the resulting damage; the presence of direct actual damage; the amount of damage caused; compliance with the rules for concluding an agreement on full liability.

In the event of a refund dispute material damage caused to the employer, the employee also cannot evade the process of proving. He must provide evidence confirming his arguments about the impossibility of presenting claims against him from the employer regarding compensation for damage.

If the employer proves the legitimacy of the employee to conclude an agreement on full liability and the employee has a shortage, the latter is obliged to prove that he is not guilty of causing damage.

As noted in sub. "c" paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of April 14, 1988 No. 2 "On the preparation of civil cases for trial", in cases of the category under consideration, job descriptions defining the defendant's labor functions, evidence confirming the fact of causing and the amount of damage, certificates of wages, family and financial status of the defendant, and in a claim for full compensation for the damage caused, in addition, a copy of the agreement on full individual liability, collation statements, an audit report, invoices, copies of the verdict, etc. .d.

According to Art. 239 of the Labor Code of the Russian Federation, an employee cannot be held liable if the damage arose as a result of force majeure, normal economic risk, extreme necessity or necessary defense, or the employer’s failure to fulfill the obligation to ensure proper conditions for storing property entrusted to the employee.

The actions of the employee that correspond to modern knowledge and experience can be attributed to the normal economic risk, when the set goal could not be achieved otherwise, the employee duly fulfilled the tasks assigned to him. official duties, showed a certain degree of care and discretion, took measures to prevent damage, and the object of risk was material values, and not the life and health of people (paragraph 5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52).

The employer is obliged to create for employees the conditions necessary for normal work and ensuring the complete safety of the property entrusted to them. Failure by the employer to fulfill the obligation to ensure proper conditions for the storage of property entrusted to the employee may serve as a basis for refusing to satisfy the requirements of the employer if this caused damage.

By virtue of h. 1 Article. 238 of the Labor Code of the Russian Federation, it is not allowed to recover from employees those incomes that the employer could have received, but did not receive due to incorrect actions (inaction) of the employee.

As economic and judicial practice shows, significant material damage is caused to the employer by the use by employees for personal purposes of vehicles, equipment, mechanisms, etc., owned by the employer on the right of ownership. As a result, in addition to other losses, employers incur losses arising from the inability to operate the specified technical means for a certain period of time.

At one time, the Plenum of the Supreme Court of the USSR explained that when determining the amount of material damage caused by workers unauthorized use for personal purposes technical means(cars, tractors, truck cranes, etc.) owned by enterprises with which they have labor relations, it should be assumed that such damage, as caused not in the performance of labor (official) duties, is subject to compensation using the norms of civil law . In these cases, the damage is compensated in full, including income not received by the employer from the use of these technical means.

The legal literature provides an example of the correct resolution of such disputes in judicial practice. IN non-working time tractor driver of the Beloretsk Repair and Construction Department (RCD) B. arbitrarily used a tractor assigned to him with a trailer to transport goods of citizens. As a result of the accident that occurred due to the fault of the tractor driver, the tractor, trailer and private house were damaged. RSU, as the owner of a source of increased danger, incurred the costs of repairing a residential building, a tractor and a trailer. In addition, DCS suffered losses in the form of lost revenues, as the tractor and trailer were not used for their intended purpose for nine days due to repairs. Under such circumstances, the Burzansky district, on the basis of the norms of the Civil Code of the Russian Federation, satisfied the claim of the RSU against the defendant B. for compensation for the material damage caused by him in full, including the cost of repairing a residential building and the income not received by the employer due to the downtime of the tractor and trailer (in connection with the repair).

The above clarification and at the present time should be fully applied in practice as consistent with the provisions of the Constitution of the Russian Federation on equal protection by the state of all forms of ownership.

In accordance with Art. 240 of the Labor Code of the Russian Federation, the employer has the right, taking into account the specific circumstances under which the damage was caused, to fully or partially refuse to recover it from the guilty employee.

At the same time, it should be borne in mind that the owner of the property of the organization may limit the right of the employer to refuse compensation for damage (in whole or in part) by the guilty employee in cases provided for federal laws, other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation, regulatory legal acts of bodies local government, founding documents of the organization.

Labor legislation, depending on the amount of damages to be compensated, distinguishes two types of employee liability: limited and complete. Limited liability is named due to the fact that damages are limited in relation to the employee's wages, and with full liability, the employee compensates for damages in full without restrictions.

In view of the fact that in the process of performing duties, the employee uses the means and objects of labor and thereby runs the risk of causing property damage to the employer through negligence or lack of care, the Labor Code of the Russian Federation establishes limited liability as the main type of material liability of employees.

Limited Liability is the obligation of the employee to compensate for direct actual damage, but not more than the limit (part) of it provided for by law wages.

Labor Code The Russian Federation does not contain a list of cases of damage, for which liability is established within the limits of the average monthly earnings of an employee. As practice shows, the most typical cases in which this type of liability occurs are:

• - negligent damage or destruction of the employer's property, materials, semi-finished products, products (products), as well as tools, measuring instruments, overalls and other items issued for use by the employee;
• - shortage of money, loss of documents, complete or partial depreciation of documents, payment of a fine by the employer due to the fault of the employee or the need for the employer to make excessive payments, etc.

If the employer has filed a claim for compensation by the employee for damages within the limits of his average monthly earnings (Article 241 of the Labor Code of the Russian Federation), however, during the trial, circumstances will be established with which the law associates the onset of the employee’s full liability, the court is obliged to decide on the claims stated by the plaintiff and cannot go beyond them, because by virtue of h. 3 Article. 196 Code of Civil Procedure of the Russian Federation, such a right is granted to the court only in cases provided for by federal law.

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. Liability in the full amount of the damage caused can be imposed only in cases provided for by the Labor Code of the Russian Federation or other federal laws.

When considering a case on compensation for direct actual damage caused to the employer in full, the employer is obliged to provide evidence indicating that, in accordance with the Labor Code of the Russian Federation or other federal laws, the employee can be held liable in the full amount of the damage caused and at the time of its infliction reached the age of eighteen of age, except in cases of intentional infliction of damage or infliction of damage in a state of alcoholic, narcotic or other toxic intoxication, or if the damage was caused as a result of a crime or

administrative misconduct, when an employee can be held fully liable before reaching the age of eighteen (Article 242 of the Labor Code of the Russian Federation).

Article 243 of the Labor Code of the Russian Federation contains an exhaustive list of grounds when full material liability of employees may occur. It takes place in the following cases:

• 1) when, in accordance with the Labor Code of the Russian Federation or other federal laws, the employee is held liable in full for damage caused to the employer in the performance of labor duties by the employee;
• 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) infliction of damage in a state of alcoholic, narcotic or other toxic intoxication;
• 5) causing damage as a result of the criminal actions of the employee, established by a court verdict;
• 6) causing damage as a result of an administrative offense, if such is established by the relevant government agency;
• 7) disclosure of information constituting a legally protected secret (state, official, commercial or other), in cases provided for by federal laws;
• 8) infliction of damage not in the performance of labor duties by the employee.

In connection with the foregoing, the following case on a claim for full compensation for damage is of interest.

On May 20, 2003, the decision of the justice of the peace dated May 7, 2003 came into force on the recovery from the GU-UPF of the Russian Federation for the city of Moscow and the Moscow Region in favor of R. in compensation for damage caused by a road accident, 48 thousand 559 rubles. 14 kop. This decision states that on March 21, 2003, the accident occurred due to the fact that a VAZ 21213 car belonging to the Pension Fund of the Russian Federation, driven by K., drove into the oncoming traffic lane, where a collision occurred with a Volkswagen car. Passat, owned by R. The driver K. lost control of the car, which caused the accident. Pension Fund on May 20, 2003, as the owner of a source of increased danger, he compensated R. for the damage in full, in connection with which a recourse claim was brought against the driver K. for the entire amount of damage.

Satisfying the recourse claim in full, the court, when making a decision, was guided by the provisions of Art. 1081 of the Civil Code of the Russian Federation, which states that the person who compensated for the harm caused by another person (an employee in the performance of his official, official or other labor duties, a person who managed vehicle, etc.), has the right to claim back (recourse) against this person in the amount of the compensation paid.

However, in paragraph 1 of Art. 1081 of the Civil Code of the Russian Federation there is an indication that the amount of the compensation paid is collected in a recourse order, unless a different amount is established by law.

In this case, the court did not apply the proper law - the norms of Sec. XI Labor Code of the Russian Federation on the liability of the parties employment contract.

On October 8, 2001, K. was hired as a driver in the department for the delivery of pensions in the Main Directorate of the UPF of the Russian Federation No. 32 for Moscow and the Moscow Region. The car on which he worked and caused the traffic accident was assigned to him on July 12, 2002 in accordance with the order of the employer No. 57. His average earnings before filing a claim was 7 thousand 792 rubles.

By virtue of 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. Articles 242 and 243 of the Labor Code of the Russian Federation establish the conditions for full liability. The available materials of the case do not support such conditions. The court did not cite in its decision the norms of labor law, on the basis of which a recourse claim for compensation for damage caused in the performance of labor duties should be compensated in full. Thus, imposing on K. the obligation to compensate for the damage caused by a car accident in the performance of his labor duties in full is not based on the law.

The decision of the justice of the peace of the 269th judicial district of the Shatura judicial district of the Moscow region of June 9, 2003 was canceled, the case was sent for a new trial to the same court.

Certain features have labor disputes on collective (brigade) liability for damage.

Issues of collective (brigade) liability are regulated primarily by Art. 245 of the Labor Code of the Russian Federation. Plenum

The Supreme Court of the Russian Federation in its decision of November 16, 2006 No. 52 (p. 14) explains that the court considering the claim for damages under Art. 245 of the Labor Code of the Russian Federation, it is necessary to check whether the employer has complied with the rules for establishing collective (team) liability provided by law. Article 245 of the Labor Code of the Russian Federation allows us to formulate following rules and the conditions for the legitimacy of establishing collective (team) liability:

• - joint performance by employees certain types works related to the storage, processing, sale (vacation), transportation, use or other use of the values ​​transferred to them;
• - the impossibility of delimiting the responsibility of each employee for causing damage and concluding an agreement with him on compensation for damage in full;
• - the conclusion of a written agreement on collective liability between the employer and all members of the team (team).

Under an agreement on collective (brigade) material liability, values ​​are entrusted to a predetermined group of persons, which is fully liable for their shortage.

At present, the only existing method for calculating the amount of damage to be compensated by each member of the brigade is contained in the order of the Ministry of Trade of the USSR dated August 19, 1982 No. 169 "Instructions on the procedure for applying in state trade the legislation governing the liability of workers and employees for damage caused to an enterprise, institution , organizations". The reimbursable damage caused by the team (team) to the employer is distributed among its members in proportion to the monthly tariff rate (official salary) and the time actually worked for the period from the last inventory to the day the damage was discovered (clause 7.3 of the order).

The amount of compensation for damage by each member of the team (team) can be represented as the following formula:

where P1 is the amount of compensation for damage by a member of the team (team); C - the amount of damage caused by the team (team); Z1, 32, ..., W n - wages of members of the team (team) for the inter-inventory period according to salaries, taking into account the hours worked.

On specific example you can show how the amount of compensation for damage is calculated for each member of the team (team).

So, in CJSC "Stroymontazh" a shortage of 50,000 rubles was revealed. A team of four people, with which an agreement on collective liability was concluded, was found guilty of the damage. The last inventory was carried out two months ago.

The calculation of the amount of damages to be compensated by each member of the team is given in the table.

Name of team members	Wages for the three-month post-inventory period, rub.	Calculation of the amount of damages to be compensated, rub.	The amount of reimbursable damage, rub.
Ivanov A. N.		(50,000 × 60,000) : :(60,000 + 45,000 + +80,000 + 65,000)
Krasnov I.V.		(50,000 × 45,000) : :(60,000 + 45,000 + +80,000 + 65,000)
Prokhorov O.S.		(50,000 × 80,000) : :(60,000 + 45,000 + +80,000 + 65,000)
Tomin V. M.		(50,000 × 65,000): :(60,000 + 45,000 + +80,000 + 65,000)

Thus, collective (team) liability is a shared form of compensation for damage.

When resolving a labor dispute on compensation for damage caused by the team (team), the court has the right to reduce the amount of debt for individual members of the team (team). At the same time, it should be taken into account that a reduction in the amount of the penalty from one or more members of the team (team) cannot serve as a basis for a corresponding increase in the amount of the penalty from other members of the team (team) (paragraph 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52).

The court needs to check whether all members of the team (team) who worked during the period of the damage were sued. If the claim is not brought against all members of the team (team), the court, based on Art. 43 of the Code of Civil Procedure of the Russian Federation, is entitled, on its own initiative, to involve them in the case as third parties who do not make independent claims regarding the subject of the dispute, on the side of the defendant, since the correct determination of the individual responsibility of each member of the team (team) depends on this.

In case of voluntary compensation for damage, the degree of guilt of each employee of the team is determined by agreement between all members of the specified unit and the employer.

The procedure for determining the amount of damage caused to the employer is established by Art. 246 of the Labor Code of the Russian Federation. The amount of damage caused to the employer in the event of loss and damage to property is determined by actual losses calculated on the basis of market prices in force in the area on the day the damage was caused, but not lower than the value of the property according to accounting data, taking into account the degree of depreciation of this property. Thus, the amount of damage must be documented by the employer's credentials.

Regarding the application of Art. 246 of the Labor Code of the Russian Federation, the Plenum of the Supreme Court of the Russian Federation in its resolution of November 16, 2006 No. 52 (p. 13) gave the following explanations.

By general rule, the amount of damage caused is determined by actual losses, calculated on the basis of market prices in force in the area on the day the damage was caused. In cases where it is impossible to establish the day of damage, the employer has the right to calculate the amount of damage on the day of its discovery.

If at the time of the consideration of the case in court the amount of damage caused to the employer by the loss or damage of property changes due to an increase or decrease in market prices, the court is not entitled to satisfy the employer's claim for compensation by the employee for damages in larger size or the employee's claim for compensation for damage in a smaller amount than it was determined on the day of its infliction (discovery), since the Labor Code of the Russian Federation does not provide for such a possibility.

The federal law may establish a special procedure for determining the amount of damage to be compensated caused to the employer by theft, deliberate damage, shortage or loss of certain types of property and other valuables, as well as in other cases when the actual amount of damage caused exceeds its nominal amount.

Before making a decision on compensation for damages by specific employees, the employer is obliged to conduct an audit to determine the amount of damage caused and the reasons for its occurrence. To conduct such an audit, the employer has the right to create a commission with the participation of specialists.

Requesting a written explanation from the employee to establish the cause of the damage is mandatory.

The audit materials must without fail contain:

• - documents on receipt of funds under the report for each fact of shortage, waste, etc.;
• - copies of the employment contract and the contract on full liability, if any;
• - copies of the order on hiring the employee and his job description;
• - documents confirming the expenditure of funds;
• - report on the expenditure of funds;
• - certificate of accounting on the average monthly earnings of the employee;
• – documents on the basis of which a conclusion is made about the presence of a shortage, damage, theft, fraud, abuse, etc.;
• - an act of inventory, financial and accounting check, audit report or audit, if any;
• - an explanatory note of the accountable person describing the fact of waste (shortage, unjustified spending of money and other funds) indicating the place, time, dates, witnesses, guilty persons;
• - explanatory notes of other persons involved in this episode;
• - official (report) notes of the person who issued the valuables, about the amounts or material values ​​​​issued under the report and their shortage;
• – certificate-calculation of the shortage, signed by the chief accountant and the head of the structural unit;
• – the final act on the results of the investigation of the person who conducted the investigation, signed, dated and the relevant management resolution.

The employee and (or) his representative has the right to get acquainted with all the materials of the audit and appeal them in the manner prescribed by the Labor Code of the Russian Federation.

The procedure for recovering damages from an employee by an employer depends on a number of factors, including primarily the amount of damage.

Employees who are guilty of causing damage will be explained the procedure for its compensation and are invited to compensate the damage in whole or in part voluntarily.

Voluntary compensation for damage is applied in cases that are convenient for both the employee and the employer, and can be carried out in various ways: by transferring property of equal value, repairing damaged property, depositing appropriate amounts of money into the employer’s cash desk, etc. As indicated in clause 17 of the resolution of the Plenum of the Supreme of the Court of the Russian Federation of November 16, 2006 No. 52, the question of the method of compensation for the damage caused in cases where the employee wishes to transfer equivalent property to the plaintiff or repair damaged property as compensation for damage, is decided by the court based on the circumstances of the case and taking into account the observance of the rights and interests of both sides.

If the employee refuses to voluntarily compensate for the damage caused through his fault, this damage is forcibly recovered by the employer or the court.

Compensation for damage in an amount not exceeding the average monthly salary of an employee is made by order of the employer by deduction from the salary of the person causing the damage. The employer must make such an order no later than one month from the date of the final determination of the amount of damage caused by the employee (part 1 of article 248 of the Labor Code of the Russian Federation). If the employer has not made the relevant order within the specified period, then he can recover from the employee the damage caused only in court.

If the one-month period has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer, and the amount of damage to be recovered from the employee exceeds his average earnings, then recovery can only be carried out by the court.

Compensation for damages is made regardless of bringing the employee to disciplinary, administrative or criminal liability for actions or inaction that caused damage to the employer.

When the employer makes deductions from the employee's wages to compensate for the damage caused, it should be borne in mind that these deductions should not exceed the limits established by Art. 138 of the Labor Code of the Russian Federation. Thus, the total amount of all deductions for each payment of wages cannot exceed 20%, and in cases provided for by federal laws, 50% of the wages due to the employee. In the case of deductions from wages under several executive documents, the employee must in any case be retained 50% of wages.

In accordance with Art. 250 of the Labor Code of the Russian Federation review body labor disputes may, taking into account the degree and form of guilt, the financial situation of the employee and other circumstances, reduce the amount of damage to be recovered from the employee.

Article 249 of the Labor Code of the Russian Federation provides for the possibility of bringing an employee to liability in the event of his dismissal without good reasons before the expiration of the period stipulated by the employment contract or agreement on training at the expense of the employer. In this case, the employee will be obliged to reimburse the costs incurred by the employer for his training, calculated in proportion to the time actually not worked after the end of training, unless otherwise provided by the employment contract or training agreement.

So, from Art. 249 of the Labor Code of the Russian Federation it follows that the right of the employer to recover from the employee the costs of his training arises only if the following conditions are met:

• 1) the employee is sent for training by the employer;
• 2) training was carried out at the expense of the employer;
• 3) the employee quit his job before the expiration of the period stipulated by the parties;
• 4) the reason for dismissal is not valid;
• 5) the condition on the obligation of the employer to pay for training, and the employee to work after training for a certain period of time is provided for by the employment contract or training agreement.

Judicial practice confirms that an employee who quit without good reason before the expiration of the period stipulated by the agreement on targeted training of the employee at the expense of the employer is obliged to reimburse the costs incurred by the employer when sending him to training, in proportion to the time not worked.

So, CJSC "Kemerovo mobile connection" filed a lawsuit against citizen F. for the recovery of costs associated with the training of an employee, motivating his claim by the fact that on September 3, 2001 F. was hired by CJSC Kemerovo Mobile Communications as a maintenance engineer technological systems. On January 23, 2003, a training agreement was concluded with him, according to which CJSC undertook to pay for F.'s education (3,211 euros and travel expenses in the amount of 11,232 rubles), and F., having completed training, had to work at CJSC Kemerovo mobile communication" for at least three years, in case of dismissal before the expiration of this period - to reimburse the costs associated with training. Since F. did not fulfill the terms of the contract and quit, Joint-Stock Company asked to recover from him 93,793 rubles. 31 kop. for training, 11,232 rubles. travel expenses and the amount of state duty.

By the decision of the Zavodskoy District Court of the city of Kemerovo of January 27, 2005, the claim was satisfied. The decision of the court was not challenged on cassation.

In the supervisory complaint, F. asked to cancel this decision and remand the case for a new trial in the court of first instance.

By the decision of the judge of the Supreme Court of the Russian Federation of October 11, 2005, the case was requested to the Supreme Court of the Russian Federation.

The judge of the Supreme Court of the Russian Federation, having considered on November 28, 2005 the case demanded on the basis of F.'s supervisory complaint, refused to transfer it for consideration on the merits to the supervisory court, stating the following.

In accordance with Art. 387 of the Code of Civil Procedure of the Russian Federation, the grounds for canceling or changing judicial decisions of lower courts by way of supervision are significant violations of the norms of substantive or procedural law.

There were no such violations in the decision of the district court.

It was established that on January 23, 2003, Kemerovo Mobile Communications CJSC (Enterprise) and citizen F. (Employee) concluded an agreement on targeted training and mutual obligations, according to which the Enterprise undertook to pay for the training of the Employee, and the Employee had to undergo training on a paid basis. basis on the job at the expense of the Enterprise in accordance with the terms of the contract.

By virtue of clause 4.3 of the said agreement, after completing the training course, F. undertook to work at Kemerovo Mobile Communications CJSC for at least three years, and in case of dismissal before the expiration of this period, to reimburse all the costs of the company for his education.

The defendant did not fulfill the terms of the contract, according to which he had to work for the plaintiff for at least three years after training, and resigned of his own free will.

According to Art. 249 of the Labor Code of the Russian Federation, the employee is obliged to reimburse the costs incurred by the employer when sending him for training at the expense of the employer, in the event of dismissal without good reason before the expiration of the period stipulated by the employment contract or agreement on training the employee at the expense of the employer.

On the basis of this provision, the court correctly satisfied the claim.

The amount of expenses incurred by the plaintiff for the training of the defendant is due to the said contract, which has not been contested or invalidated by anyone.

Generalization of judicial practice in cases related to the liability of the parties to an employment contract

The material liability of the parties to the employment contract is one of the ways to protect the property rights of the employee and the employer.

current civil law labor disputes are referred to the jurisdiction of district courts.

General provisions on the liability of the parties to an employment contract are comprehensively regulated by Ch. 39 of the Labor Code of the Russian Federation with additions made to it federal law dated June 30, 2006 N 90-FZ "On Amendments to the Labor Code Russian Federation, declaring as invalid on the territory of the Russian Federation certain normative legal acts of the USSR and invalidated certain legislative acts (provisions of legislative acts) of the Russian Federation" (hereinafter - the Federal Law of June 30, 2006, Federal Law No. 90-FZ).

Unlike most labor disputes, for which pre-trial procedure, cases of material liability of employees are considered directly in court.

When filing a claim, employers often refer to the fact that claims arising from labor relations are not subject to payment of state duty. Meanwhile, in accordance with Art. 333.36 of the Tax Code of the Russian Federation, the employer is exempted from paying the state duty only when he goes to court with a claim for compensation for material damage caused by the employee's crime.

In other cases, the employer is obliged to pay a state duty depending on the value of the claim, since, by virtue of sub. 1 p. 1 art. 333.36 parts of the second Tax Code of the Russian Federation and Art. 393 of the Labor Code of the Russian Federation, when applying to the court with a claim arising from labor relations, only employees, and not the employer, are exempted from paying duties and court costs.

Cases and conditions for the occurrence of material liability of the employee.

TO labor disputes on the liability of an employee, subject to judicial review, include cases:

1) according to the employer:

On compensation by the employee for damage caused to the employer, in the event that the amount of damage to be compensated exceeds the average monthly salary of the employee, and the employee voluntarily does not agree to compensate for the damage caused to the employer (part 2 of article 248 of the Labor Code of the Russian Federation);

on the recovery from the employee of the amount of damage caused, not exceeding the average monthly earnings, if a month has expired from the date of the final determination by the employer of the amount of damage caused by the employee, established for the issuance by the employer of the relevant order (part 2 of article 248 of the Labor Code of the Russian Federation);

on the recovery of outstanding debts in compensation for damage caused in the event of dismissal of an employee, including one who gave a written obligation to voluntarily compensate for damage, but refused to compensate for the specified damage (part 4 of article 248 of the Labor Code of the Russian Federation).

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. At the same time, direct actual damage is understood as a real decrease in the employer’s cash property or deterioration of the said property (including the property of third parties held by the employer, if the latter is responsible for the safety of this property), as well as the need for the employer to incur costs or excessive payments for acquisition, restoration of property or compensation for damage caused by the employee to third parties. Therefore, the direct actual damage can be attributed to the lack of monetary and property values, damage to equipment, furniture or materials of the employer (letter of Rostrud dated October 19, 2006 N 1746-6-1), as well as the cost of repairing damaged property of third parties, the amount of fines paid imposed on the organization through the fault of the employee.

When considering cases, the courts should take into account that the employer cannot recover lost income (lost profit) from the employee, as well as hold the employee liable for the fact that the employee, due to absence from work, did not produce products that the employer could sell, or for damage to the property of the organization, from the use of which the employer could receive additional profit.

To bring an employee to liability, it is necessary to comply with the conditions provided for in Art. 233 of the Labor Code of the Russian Federation.

The employer has the right to apply to the court for disputes on compensation by the employee for damage caused to the employer within the framework of labor relations, both during the period of validity of the employment contract concluded with such employee, and after its termination, within one year from the date of discovery of the damage caused (Part 2 article 392 of the Labor Code of the Russian Federation).

In this case, the day when the damage was discovered is the day when the employer became aware of the damage caused by the employee. If the employer is entity, then the day of detection of damage that opens the course of the above one-year period must be recognized as the day on which the immediate supervisor of the employee became aware of the damage caused by this employee, regardless of whether this supervisor is endowed with the right to apply to the court on behalf of the employer with a claim for compensation for this damage. The day of detection of damage identified as a result of inventory of material assets, during the audit or verification of the financial and economic activities of the organization, is the day of drawing up the relevant act or conclusion.

However, the employer and employee may enter into an indemnity agreement with installment payments for more than one year, since the duration of such an agreement is not limited by law. In this case, the possibility of going to court arises for the employer not from the moment of the initial discovery of damage, but from the moment the employer discovers a violation of his right to compensation for damage (that is, from the moment when the employee ceased to comply with the terms of the agreement). This position is reflected in the Definition of the Armed Forces of the Russian Federation of July 30, 2010 N 48-B10-5.

Missing the deadline for applying to the court is the basis for the court to issue a decision to dismiss the claim (part 6 of article 152 of the Code of Civil Procedure of the Russian Federation). However, when accepting a claim, the court cannot refuse on the grounds that the deadline for applying to the court has been missed. The limitation period can be applied only at the request of a party to the dispute (clause 2, article 199 of the Civil Code of the Russian Federation, clause 3 of the Decree of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 N 52).

It should be borne in mind that, as a general rule, a legal entity practically cannot have good reasons for missing the deadline for applying to the court. However, Part 3 of Art. 392 of the Labor Code of the Russian Federation provides for the employer the possibility of restoring the deadline if it is missed for good reasons. These may include exceptional circumstances that do not depend on the will of the employer, which prevented the filing of a statement of claim (paragraph 3 of the Decree of the Plenum of the Armed Forces of the Russian Federation of November 16, 2006 N 52). Such circumstances may be force majeure.

If there are no grounds for concluding that the plaintiff has missed the deadline for applying to the court, the judge appoints the case for trial.

By virtue of h. 2 Article. 392 of the Labor Code of the Russian Federation, the employer has the right to bring a claim against the employee for the recovery of amounts paid as compensation for damage to third parties within one year from the date of payment by the employer of these amounts (clause 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 N 52.

Established in Part 2 of Art. 392 of the Labor Code of the Russian Federation, the term for the employer to apply to the court with a claim for compensation for damage caused by an employee is special, in connection with this, the general limitation period established by the norms Civil Code RF does not apply to the considered legal relations.

The procedure for bringing an employee to liability.

In accordance with Part 1 of Art. 246 of the Labor Code of the Russian Federation, the amount of damage caused to the employer in the event of loss and damage to property is determined by actual losses, which are calculated on the basis of market prices in force in the area on the day the damage was caused, but not lower than the value of the property according to accounting data, taking into account the degree of depreciation of this property . According to par. 2 paragraph 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 N 52, in cases where it is impossible to establish the day of damage, the employer has the right to calculate the amount of damage on the day it was discovered.

The obligation to conduct an audit to establish the amount of damage caused and the reasons for its occurrence by virtue of Part. 1 Article. 247 of the Labor Code of the Russian Federation is assigned to the employer.

It should be borne in mind that conducting an audit to determine the amount of damage and the reasons for its occurrence is prerequisite when an employee is held liable. In the absence of documents confirming the conduct of such an inspection, the employee may challenge the liability in court.

The results of the inspection are documented in a document that records the fact of damage and its amount.

Main normative document which regulates the procedure for conducting an inventory, are Guidelines on the inventory of property and financial obligations, approved by Order of the Ministry of Finance of Russia of June 13, 1995 N 49.

The head of the enterprise must issue an order (decree, order) on the conduct of an inventory and on the composition of the inventory commission. unified form order N INV-22 was approved by the Decree of the State Statistics Committee of Russia dated August 18, 1998 N 88.

The order appoints the chairman and members of the inventory commission. IN this document the timing of the inventory and the reasons for its implementation (for example, theft, damage to property) are indicated.

At the next stage, the inventory commission, appointed by order of the head, directly checks the actual availability of property by counting, weighing, measuring. In this case, the mandatory participation of a financially responsible person must be ensured.

According to clause 2.5 Guidelines all information about the property is entered in the inventory lists or inventory acts in at least two copies. For registration of the inventory, the forms of primary accounting documentation are used, approved by Order of the Ministry of Finance of Russia dated September 23, 2005 N 123n "On Approval of the Forms of Budget Accounting Registers", in which information on the actual availability of property is entered.

In addition to the inventory, the employer must conduct an official investigation to determine the cause of the damage. To do this, the employer has the right to create a commission, including relevant specialists in it (part 1 of article 247 of the Labor Code of the Russian Federation).

In accordance with Part 2 of Art. 247 of the Labor Code of the Russian Federation, the employer is obliged to demand a written explanation from the employee in order to establish the cause of the damage. Refusal or evasion of an employee from giving explanations is formalized by an act (part 2 of article 247 of the Labor Code of the Russian Federation).

Based on the results of the internal investigation, a conclusion is drawn up, which is signed by all members of the commission. The conclusion reflects the facts established by the commission, in particular:

Absence of circumstances excluding the liability of the employee;

Illegal behavior of an employee that caused damage to the property of the employer;

The fault of the employee in causing damage;

Causal relationship between the behavior of the worker and the resulting damage;

The presence of direct actual damage to the employer.

It should be borne in mind that the employee and (or) his representative has the right to get acquainted with all the materials of the audit and appeal against them in case of disagreement with its results (part 3 of article 247 of the Labor Code of the Russian Federation).

The employee must be familiar with the order for the recovery of damages. In case of absence voluntary consent of the employee to compensate for the damage caused, the employer cannot recover from him the amount of damage on his own. In such a situation, the employer will need to go to court (part 2 of article 248 of the Labor Code of the Russian Federation).

Types of material responsibility of the employee.

Labor law provides for two types of employee liability for damage caused to the employer: limited and full.

As a general rule, for damage caused to the employer, the employee bears limited liability within the limits of his average monthly earnings (Article 241 of the Labor Code of the Russian Federation).

Thus, by the decision of the district court of January 31, 2011, left unchanged by the ruling of the Judicial Collegium for Civil Cases of the Ryazan Regional Court, the claims of MUE "R" for compensation for damage caused to the employer through the fault of the employee were partially satisfied. The court found that the driver A., ​​who was in an employment relationship with the plaintiff, while performing a flight on a technically sound bus, stopped the bus and, without taking all the necessary measures to prevent spontaneous movement due to the natural slope of the road, left the driver's seat, due to with which the bus started moving, hit a tree and received mechanical damage. Thus, MUP "R" suffered damage in connection with damage to its property. Satisfying the stated requirements within the limits of the average monthly earnings of the employee, the court took into account that he was not provided for liability in more than that established by Art. 241 of the Labor Code of the Russian Federation, size.

Full material liability implies the obligation of the employee to compensate the direct actual damage caused to the employer in full and can be assigned to the employee only in cases expressly provided for. Labor Code Russian Federation or other federal laws (parts 1 and 2 of article 242 of the Labor Code of the Russian Federation).

Liability cannot be established in the full amount of the damage caused by the employee by instructions, regulations, orders, etc. ministries and departments.

When resolving this category of labor disputes, the court must make a decision on a specific case within the scope of the claims formulated by the employer, therefore, if the employer has filed a requirement to bring the employee to limited liability within his average monthly earnings, and in the course of the trial, it will be established circumstances with which the law connects the possibility of full material liability for the employee, the court, on its own initiative, is not entitled to go beyond the stated claims and is obliged to decide only on the claims declared by the plaintiff. However, by virtue of h. 3 Article. 196 of the Code of Civil Procedure of the Russian Federation, the court may go beyond the requirements stated by the employer, but only in cases provided for by federal law (clause 7 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 N 52).

When considering a case on compensation for direct actual damage caused by an employee in full, the employer is obliged to provide evidence proving that, in accordance with Labor Code RF or other federal laws, an employee may be held liable exactly in the full amount of the damage caused, and, in addition, at the time of the damage, he had already reached the age of 18. The latter requirement does not apply to cases of deliberate infliction of damage or infliction of damage in a state of alcoholic, narcotic or other toxic intoxication, or infliction of damage as a result of a crime or administrative offense. In all these cases, according to part 3 of Art. 242 of the Labor Code of the Russian Federation, an employee can be held fully liable even before reaching the age of 18 (clause 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 N 52).

In accordance with Art. 243 of the Labor Code of the Russian Federation, liability in the full amount of the damage caused is assigned to the employee in the following cases:

when in accordance with Labor Code of the Russian Federation or other federal laws, the employee is held liable in full for damage caused to the employer in the performance of the employee's labor duties;

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 damage;

causing damage in a state of alcoholic, narcotic or other toxic intoxication;

causing damage as a result of the employee's criminal actions established by a court verdict;

causing damage as a result of an administrative offense, if such is established by the relevant state body;

disclosure of information constituting a legally protected secret (state, official, commercial or other), in cases provided for by federal laws;

causing damage not in the performance of work duties by the employee.

In order to bring the employee to full liability for damage caused to the employer in a state of alcoholic, narcotic or other toxic intoxication, the employer must prove that the damage was caused by the employee in a state of intoxication. In this case, the court must demand evidence confirming that the employee was intoxicated at the time the damage was caused. This condition can be confirmed both by a medical report and other types of evidence, which must be assessed accordingly by the court. At the same time, it should be borne in mind that the form of guilt (intention or negligence) of the employee who caused damage while intoxicated has no legal significance for resolving the issue of the amount of compensation for the harm caused, which in all cases is subject to compensation in full.

Bringing an employee to full liability for damage caused to the employer as a result of an administrative offense, if such is established by the relevant state body, is possible in the event that, based on the results of consideration of his case on administrative offense a judge, body, official authorized to consider cases of administrative offenses, issued a decision to impose an administrative penalty (clause 1, part 1, article 29.9 of the Code of Administrative Offenses), and thereby established the fact that this person had committed an administrative offense.

When considering such cases, it must be borne in mind that the form of guilt (intention or negligence) of an employee who has committed an administrative offense that caused damage to the employer has no legal significance for resolving the issue of the legality of bringing him to full liability, which is also confirmed by judicial practice.

When considering this category of cases, the courts should keep in mind that bringing an employee to full liability on this basis has a significant difference from the ground that allows the employee to be held fully liable only if there is a court verdict that has entered into force, which establishes the criminal nature of the actions ( inaction) of the employee, resulting in damage to the employer. If an employee commits an administrative offense, it is sufficient to establish the relevant fact by an authorized state body and without issuing an act on bringing the employee to administrative responsibility. Therefore, if an employee is relieved of administrative responsibility for committing an administrative offense due to its insignificance, about which, based on the results of the consideration of the case on an administrative offense, a decision is made to terminate the proceedings on the case of an administrative offense and an oral remark is announced to the employee, it may also be material liability is imposed in the full amount of the damage caused, since with the insignificance of an administrative offense, the fact of its commission is not only established, but all signs of the offense are revealed, and the guilty person is only exempted from administrative punishment (Article 2.9, clause 2, part 1.1 of Art. 29.9 of the Code of Administrative Offenses).

At the same time, it must be taken into account that the unconditional grounds excluding proceedings in a case of an administrative offense are the expiration of the statute of limitations for bringing a person to administrative responsibility, as well as the issuance of an amnesty act, if such an act eliminates the possibility of applying to this person administrative punishment (clauses 4, 6 of article 24.5 of the Code of Administrative Offenses). In these situations, the employee cannot be held fully liable under paragraph 6 of part 1 of Art. 243 of the Labor Code of the Russian Federation, which, however, does not exclude the right of the employer to demand compensation for damage in full from him on other grounds (paragraph 12 of the decision of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 N 52).

Thus, by the decision of the court of the Ryazan region of April 01, 2009, the claims were satisfied financial management municipality to A. for compensation for damage caused by a traffic accident. Leaving the decision of the district court unchanged, the court of cassation noted that the damage was caused through the fault of A. as a result of an administrative offense, the fact of which and administrative penalty for which it was imposed by a court decision of August 14, 2008 in an administrative case. The damage was caused by A. to a third party - Y. in a state of intoxication and during non-working hours. These circumstances are confirmed by the evidence examined in court and are, both individually and even more so in aggregate, the grounds for imposing full liability on A. for the damage caused to the employer.

When considering disputes on bringing an employee to liability for damage caused to the employer by a shortage of valuables entrusted to the employee on the basis of a special written agreement or received by him under a one-time document, the court must establish the facts:

transfer of material assets to the employee;

lack of material assets;

The presence of a written agreement on full liability or a one-time document on the transfer of material assets to the employee;

The legitimacy of concluding a written agreement with this employee on full liability.

A written agreement on full liability can be concluded both with an individual employee (an agreement on full individual liability) and with a team (team) of employees (an agreement on full collective (team) liability).

Agreements on full individual and collective (team) liability may be concluded with employees who have reached the age of 18 and directly serve or use monetary, commodity values ​​or other property (Article 244 of the Labor Code of the Russian Federation).

The lists of positions and works substituted or performed by employees with whom the employer can enter into written contracts on full individual or collective (team) liability, as well as standard forms of contracts on full liability, were approved by a decree of the Ministry of Labor and social development RF dated December 31, 2002 N 85.

Written agreements on full liability can be concluded only with those employees and for the performance of those types of work that are provided for by the above Lists. They are exhaustive and not subject to broad interpretation.

When considering labor disputes about liability for a shortage of valuables entrusted to an employee on the basis of an agreement on full individual liability, it must be borne in mind that if such an agreement is concluded with an employee whose position (job) is not provided for by the List of positions and jobs replaced or performed by employees, with whom the employer can conclude written agreements on full individual liability, but at the same time, the employer will prove the employee’s fault in causing damage, his illegal actions (inaction) and a causal relationship between the actions (inaction) of the employee and the resulting damage (shortage), liability may be assigned to an employee only within the limits of his average monthly earnings. Similarly, there should be issue resolved and on the material liability of the employee whose position (work) was provided for by the specified List, in the case when a written agreement on full material liability was not concluded with him, as well as an employee under the age of 18, regardless of the fact that the specified agreement was concluded with him.

If the employer proves the legitimacy of concluding an agreement with the employee on full liability and the employee has a shortage, the burden of proving that he is not guilty of causing damage lies with the employee (paragraph 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 N 52).

In the case when, during the consideration of the case, it is established that the transfer of material assets to the employee was made without documentation recovery of funds from him in compensation for material damage is possible only on condition that the employer proves the unlawfulness of the behavior (action or inaction) of the employee, his fault and the causal relationship between the behavior of the employee and the damage that has occurred.

Considering the claims of LLC "K" against K. for damages, the court found that K., on the basis of an employment contract, worked in LLC "K" as a seller, from the moment she was hired, an agreement on full liability was concluded with her. Together with her, also as sellers, other persons worked. During the defendant's work, an audit was carried out, a statement was drawn up and a shortage in the amount of 149,408 rubles 11 kopecks was revealed, and an act was drawn up.

Refusing to satisfy the claims, the district court of the Ryazan region reasonably proceeded from the fact that the drawn up act did not indicate what the shortage was - goods or money, the reason for the shortage, there were no waybills, a collation sheet and an inventory list confirming the arrival and consumption of inventory items. Leaving the decision of the district court unchanged, the Judicial Collegium for Civil Cases agreed with the conclusions of the district court that the plaintiff indisputably did not prove either the fact of a shortage in the defendant's store, or its size, or the fault of the defendant in this shortage, if any.

Reimbursement of costs associated with employee training.

The obligation of the employee to reimburse the costs incurred by the employer for his training arises in the presence of the following legal facts:

sending him to study;

training at the expense of the employer:

the existence of an employment contract between the employee and the employer, which contains training obligations;

the conclusion by the employee and the employer of a training agreement;

dismissal of an employee before the expiration of the period stipulated by the employment contract or agreement;

dismissal of an employee without good reason.

The list of valid reasons for dismissal can be established by agreement of the parties in the contract.

The costs incurred by the employer in sending an employee to training include all payments made by the employer in connection with the training of the employee. This may be payment for tuition at an educational institution, student accommodation, food, clothing, travel, etc. All these costs incurred by the employer can be reimbursed to the trainee.

In turn, the costs of the employer, subject to reimbursement by the employee, can only be recognized as those of his expenses that have documentary evidence.

In addition, attention should be paid to the fact that the costs incurred by the employer due to the direct prescriptions of the norms labor law in connection with the payment of study leaves granted to the employee, travel to the location of the relevant educational institution and vice versa, as well as other expenses related to the provision of guarantees and compensations provided for by law to persons combining work with education, are not subject to recovery from the employee.

The amount of reimbursement of expenses is determined in proportion to the hours worked.

Thus, by decision of the District Court of Ryazan dated December 18, 2009, the claims of CJSC “R” against B. for the recovery of costs associated with the employee’s training were satisfied. Leaving the decision of the court of first instance unchanged, the panel of judges noted that the district court correctly proceeded from the provisions of Art. 207 of the Labor Code of the Russian Federation, according to which, if the student, at the end of the apprenticeship, without good reason, does not fulfill his obligations under the apprenticeship agreement on the basis of which he was trained, he, at the request of the employer, returns to him the scholarship received during the apprenticeship, and also reimburses other expenses incurred by the employer apprenticeship expenses. Since B., after graduation, did not pass the exam stipulated by the student agreement, without which he could not be allowed to work at the enterprise, he voluntarily refused to reimburse the plaintiff's expenses for his education, the court made a reasoned decision to recover the specified amounts from the defendant.

Material responsibility of the team (team).

When considering an employer's claim for compensation for damage caused by a team (team) of employees, if there is an agreement on collective (team) liability, the court must check whether the employer has complied with the rules for imposing full liability for the relevant team (team) provided by law, as well as whether all members of the team (team) who worked during the period of the damage were sued.

By virtue of hours. 1 and 2 Article. 245 of the Labor Code of the Russian Federation, collective (team) liability can be introduced for the corresponding team (team) only when there is a joint performance by employees of this team (team) of certain types of work related to storage, processing, sale (vacation), transportation, use or other using the values ​​transferred to them, and at the same time it is impossible to distinguish between the responsibility of each employee for causing damage and conclude an individual agreement with him on compensation for damage in full. That is why a written agreement is concluded on collective (team) liability for damage between the employer and all members of the team (team). At the same time, it must be borne in mind that the values ​​are entrusted as a whole to the team (team), which bears full collective (team) financial responsibility for their shortage. Standard form agreement on full material collective responsibility was established by the Decree of the Ministry of Labor N 85 of December 31, 2002.

These contracts can be concluded only with those employees who perform the work included in the List (approved by the Decree of the Ministry of Labor of Russia of December 31, 2002 N 85).

As well as with full individual liability, the conclusion of an agreement on collective (team) liability assumes that in the event of a shortage of values ​​entrusted to the collective (team) of workers, the fault of each member of the collective (team) is presumed, and the burden of proving its absence lies with the workers themselves. To release a specific member of the team (team) from liability, he must prove that he was not guilty of causing damage (part 3 of article 245 of the Labor Code of the Russian Federation).

When recovering damages in court, the degree of guilt of each member of the team (team) is determined by the court. When determining the amount of damage to be compensated by each of the employees, the court must take into account the degree of guilt of each member of the team (team), the amount of monthly tariff rate(official salary) of each person, the time that he actually worked as part of a team (team) for the period from the last inventory to the day the damage was discovered (paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 N 52).

As indicated by the Constitutional Court of the Russian Federation in its ruling of June 24, 2008 N 349-О-О, the legal provision provided for by Part 3 of Art. 245 of the Labor Code of the Russian Federation, allows, when determining the degree of guilt of a member of the team (team), to take into account specific circumstances, in particular, the conscientious fulfillment by the employee of the obligation to ensure the safety of the property entrusted to him.

By decision of the District Court of Ryazan dated May 23, 2007, the claims of K., V. for the recovery of unjust enrichment from OOO A were satisfied. Leaving the decision of the district court unchanged, the panel of judges proceeded from the fact that the plaintiffs worked at LLC "A" as a pharmacist and a pharmacist of a pharmacy, respectively. When hiring them, an inventory of inventory items and cash was not carried out; according to the act, they were not transferred to the specified employees. During the work of the plaintiffs, an inventory was carried out at the pharmacy and a shortage was revealed, upon the discovery of which an order was issued, an internal investigation was carried out and responsibility for the shortage was placed on a team of financially responsible persons, consisting of five people, which also included the plaintiffs.

According to the act of documentary audit and the calculation of material damage, the amount of the shortage was distributed among the members of the team in proportion to the hours worked and wages for the entire period of work of the plaintiffs. Financially responsible persons voluntarily repaid the shortage by depositing funds into the cash desk of LLC "A".

Satisfying the claims of K., V., the court indicated that the employer did not prove the fact of a thorough entrustment of valuables and funds to the plaintiffs in the manner prescribed by law, as well as the volume and size of the values ​​\u200b\u200band amounts taken into account. Based on the absence of a lawful transfer of valuables to the named persons, the lack of their proper accounting during the periods of work for the movement of inventory items, the court reasonably indicated that it was impossible to draw an indisputable conclusion about the infliction of the indicated shortage by the named persons and to impose full responsibility on them.

Responsibility of the employer and self-defense of employees' rights.

If the payment of wages is delayed for more than 15 days, the employee can exercise the right provided for in Part 2 of Art. 142 of the Labor Code of the Russian Federation, and suspend work until it is paid. He must notify the employer of this in writing.

An employee's refusal to work due to non-payment of wages is one of the forms of self-defense of labor rights (Article 379 of the Labor Code of the Russian Federation). At the same time, according to paragraph 57 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2, an employee can suspend work regardless of the employer's fault in non-payment of wages.

During the period of suspension of work, the employee has the right to be absent from the workplace.

Suspension of work is not allowed:

during periods of introduction of martial law and a state of emergency;

in military bodies and organizations in charge of ensuring the country's defense and state security, rescue, search and rescue, firefighting, work to prevent or eliminate natural disasters and emergencies, in law enforcement agencies;

civil servants;

in organizations directly servicing especially hazardous types of production, equipment.

At the same time, employees of such organizations, whose rights to timely and full payment of wages have been violated, may apply to the commission on labor disputes, to the court or to the authorities state supervision and enforcement labor law(see Ruling of the Constitutional Court of the Russian Federation of October 19, 2010 N 1304-О-О);

An employee involved in ensuring the life of the population (energy supply, heating and heat supply, water supply, gas supply, communications, ambulance and emergency medical care stations).

In practice, the question arises as to the obligation of the employer to pay wages to the employee for the period of suspension of work.

The Review of Legislation and Judicial Practice for the fourth quarter of 2009 (approved by the Decree of the Presidium of the Supreme Court of the Russian Federation of March 10, 2010) states that refusal to perform work is a coercive measure provided for by law in order to stimulate the employer to ensure payment of certain labor wage contract within the stipulated time.

Because the Labor Code The Russian Federation does not specifically provide otherwise, the employee has the right to maintain average earnings for the entire period of delayed payment of wages, including the period of suspension of work. According to the position of the Supreme Court of the Russian Federation, expressed by it in the prevailing judicial practice, in this situation, refusal to work is a forced measure of the employee in self-defense of his rights, and for him it is forced absenteeism, payable in full. In this case, the employee must be paid interest for delayed wages in accordance with Art. 236 of the Labor Code of the Russian Federation.

Financial responsibility of the head.

Labor disputes on the liability of the employer, considered in court, include cases at the request of the employee:

on compensation for material damage caused as a result of illegal deprivation of an employee of the opportunity to work (Article 234 of the Labor Code of the Russian Federation);

compensation for damage caused to the property of an employee (Article 235 of the Labor Code of the Russian Federation);

recovery monetary compensation(interest) for the delay in payment of wages and other payments due to the employee (Article 236 of the Labor Code of the Russian Federation);

Compensation for moral damage caused by violation of the labor rights of an employee (Article 237 of the Labor Code of the Russian Federation).

Both a person who has an employment relationship with an employer and a dismissed employee are entitled to apply with these requirements. A person who, in his opinion, was illegally denied employment, has the right to apply to the court with claims for compensation for material damage caused as a result of illegal deprivation of his opportunity to work, as well as for compensation for moral damage. The claim of such a person for compensation for damage caused to his property is subject to consideration in court on the basis of norms.

When considering this category of labor disputes, the courts should keep in mind that the employer can be held liable only in case of failure to perform or improper performance of the duties assigned to him arising from labor relations, if this entailed causing property damage to the employee and (or) moral damage.

When considering labor disputes about the liability of the head of the organization, deputy heads of the organization, chief accountants, it should be taken into account that the full liability of the head of the organization for damage caused to the organization comes into force by law (Article 277 of the Labor Code of the Russian Federation). In this case, the issue of the amount of compensation for damage (direct actual damage, losses) is resolved on the basis of the federal law, in accordance with which the head bears material responsibility (paragraph 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 N 52).

As a general rule, according to Art. 277 of the Labor Code of the Russian Federation, the head of the organization bears full liability only for direct actual damage caused to the organization. However, in cases stipulated by federal laws, the head of the organization compensates the organization for losses caused by his guilty actions. Moreover, their calculation is carried out in accordance with the norms civil law(part 2 of article 15 of the Civil Code of the Russian Federation).

When determining the amount of material liability of the head of the organization, the court should seek evidence confirming the actual amount of real damage caused to the employer, and when assessing the claims made by the plaintiff in terms of the amount of lost profits to be recovered as part of losses from the head of the organization, one should be guided by the requirements of reasonableness and reasonableness, taking while taking into account the usual conditions of business turnover and normal economic (entrepreneurial) risk.

As for the deputy heads of the organization and chief accountants, by virtue of Part 2 of Art. 243 of the Labor Code of the Russian Federation, employees belonging to these categories can be held liable in full only if this is established by the employment contract.

If the employment contract does not provide that these persons, in the event of damage, bear material liability in full, then in the absence of other grounds that give the right to bring these persons to such liability, they can be liable only within the limits of their average monthly earnings (p. 10 of the decision of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 N 52).

Thus, by the decision of the district court of the Ryazan region of April 15, 2010, the claims of a non-state educational institution of higher education were partially satisfied vocational education"A" to A. for damages.

Leaving the decision of the district court unchanged, the court of cassation noted that since the duties of A., who was the director of the Ryazan branch, included managing financial and economic activities and ensuring the safety of funds, the latter, concluding lease agreements for facilities, contract work on them repair, having paid their cost, could not help but know that the Ryazan branch did not rent these objects and did not use them for the educational process. In the period from 2007 to 2008, with the knowledge of the defendant, payments were made to teachers who did not take part in educational process, and other persons who did not perform labor functions in the branch. Thus, the defendant maliciously violated her labor duties, causing by her deliberate actions direct actual damage to “A.”, who incurred expenses that she should not have borne. Therefore, by virtue of Art. 238, 242, 243 of the Labor Code of the Russian Federation must be held liable.

Giving an assessment of these circumstances, the court correctly took into account that the circumstances excluding liability A., under Art. 239 of the Labor Code of the Russian Federation, the court did not establish.

When considering labor disputes about the liability of the employer for the delay in the payment of wages and other payments due to the employee (Article 236 of the Labor Code of the Russian Federation), it must be borne in mind that arising from the violation of a number of norms labor law the obligation of the employer to make payments due to the employee with the payment of interest (monetary compensation) in the amount of not less than one three hundredth of the current at that time refinancing rates The Central Bank of the Russian Federation from unpaid amounts for each day of delay arises by virtue of a direct indication of the law, therefore it does not have legal significance whether the employee previously applied to the employer with an application for receiving the said compensation. At the same time, having established the fact of a delay in the payment of these payments made by the employer, the court has the right to satisfy the claims of the employee, regardless of the fault of the employer in the delay in paying the amounts due to the employee.

Specified in Art. 236 of the Labor Code of the Russian Federation, the amount of interest (monetary compensation) is the minimum prescribed by law for such payments. Accordingly, the court, when calculating the specific amount of interest (monetary compensation) due to the employee, proceeds from this minimum size, unless the collective agreement or the employment contract specifies a higher amount of interest (monetary compensation) payable by the employer in connection with the delay in payment of wages or other payments due to the employee. In this case, the court should be guided by the following formula: the amount of interest (monetary compensation) = the amount of delayed wages (other payments due to the employee) x (refinancing rate that exists during the period of delay: 300) x number of days of delay.

Satisfying the claims of A. against JSC "N" in terms of collecting interest for violation of the deadline for paying amounts in connection with her dismissal, the District Court of Ryazan, in its decision of April 01, 2011, reasonably proceeded from the fact that since the dismissal of the plaintiff, the employer did not made a full settlement with her, then in favor of A. interest is to be collected in the amount of 1/300 of the current at the time of the decision refinancing rates The Central Bank of the Russian Federation from the amount not paid on time for each day of delay - from the day the employer has an obligation to pay the specified amounts until the day the decision is made.

When applying a different calculation procedure provided for by a collective agreement or an employment contract, it must be borne in mind that the conditions of these agreements, which reduce the provisions of Art. 236 of the Labor Code of the Russian Federation, the amount of interest (monetary compensation) paid to an employee is not subject to application as worsening his situation in comparison with the established labor law (part 2 of article 9 of the Labor Code of the Russian Federation).

When applying Art. 236 of the Labor Code of the Russian Federation, it must also be borne in mind that the procedure for calculating the amount of interest (monetary compensation) established by this norm for the delay in payments due to the employee does not provide for the need to divide the amount refinancing rates Central Bank RF for the number of days in a year.

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:

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

the employer's refusal to execute or untimely execution of the decision of the labor dispute settlement body or the state legal labor inspector to reinstate the employee in his previous job;

delays by the employer of the issuance to the employee work book, introducing into the non-correct or non-compliant wording of the reason for dismissal.

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 a 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 of 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 not less than 1/300 of the current refinancing rate of the Central Bank of the Russian Federation 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. The amount of monetary compensation to an employee may be established by a collective or labor 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 of the labor rights of workers, it was given in the resolution of the Plenum of the Supreme Court of the Russian Federation 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, failure to familiarize 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:

• compensation to an employee for 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), the employer's refusal to execute 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), inclusion in the labor a book of incorrect or non-compliant wording of the reason for dismissing an employee (Article 66), failure to comply with the statutory deadlines for warning an employee about an 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 of labor 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 the amounts due to the employee with the payment of interest (cash compensation) in the amount of not less than one three hundredth of the refinancing rate of the Central Bank of the Russian Federation in force at that time from 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.

Thus, the Labor Code of the Russian Federation 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 the employment relationship. 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 size. 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 features 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:

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 damages is presented in the presence of other circumstances that exclude the material liability of the employee (normal economic risk, force majeure, extreme necessity, necessary defense).

Bringing employees to full liability, from whom only average earnings can be recovered 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.

• The employer confuses the rules governing the issues of bringing employees to liability with the rules governing issues of withholding money from employees' wages.

• 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"?

The concept of liability of employees

Liability of employees- This statutory the obligation of employees to compensate in full or in part the direct actual damage caused by their illegal and guilty actions to the employer for whom they work. Liability is applied regardless of bringing the employee to disciplinary, administrative or criminal liability. Liability should be distinguished from such measures of material influence as the deprivation or reduction of bonuses, remuneration based on the results of work for the year, etc.

Types of liability (full and limited)

Article 402 of the Labor Code establishes that employees, as a rule, bear full liability for damage caused through their fault to the employer. Legislation, collective agreements, agreements may establish limited material liability of employees for damage caused to the employer through their fault, with the exception of cases provided for in Article 404 of the Labor Code.

Limited liability means that the employee is obliged to compensate for the damage in the amount of his actual damage, but the amount of compensation cannot exceed the average monthly earnings.

Full liability- this is liability in the amount of the damage caused without limiting it to any limit. Full liability arises if no exemptions are made from general rule on full liability. In addition, full liability in cases provided for in Article 404 of the Labor Code.

Most often, full liability occurs when a written agreement on full liability is concluded between the employee and the employer.

Labor disputes are divided into individual and collective.

Individual labor dispute- this is a dispute (disagreement) between the employee and the employer on the application of legislative and other regulations, the collective agreement and other labor agreements.

Subject acts personally defined worker. They are usually considered in commissions on labor disputes (CTS), courts of general jurisdiction.

Collective labor dispute (conflict) - these are unresolved disagreements between the parties to collective labor relations regarding the establishment, change in the socio-economic conditions of work and life of workers, the conclusion, change, execution or termination of collective agreements, agreements.

Causes - guilty acts officials, group selfishness of workers who do not take into account the public interest.

The subject is employees (labor collective) represented by representative bodies. Allowed by conciliation commissions, labor arbitrations, Republican labor arbitration.

49. Criminal law. Subjects. Objects. Principles of criminal law. Criminal liability.

The concept of criminal law as a branch of law. The basis of the UE, as well as all branches of law, is the Constitution of the Russian Federation of 1993, in which the problems of protecting the rights and freedoms of man and citizen, the interests of society and the state occupy a central place and are directly related to issues of criminal liability. Criminal law is a branch of Russian law, which is a set of legal norms established by the highest bodies of state power, determining the criminality and punishability of acts, the grounds for criminal liability, the purpose of punishment and the system of punishments, the general principles and conditions for their appointment, as well as exemption from criminal liability and punishment.

Principles of criminal law.

a) The principle of legality (art. 3): In accordance with the principle of legality, only the Criminal Code of the Russian Federation can establish liability for specific actions or omissions. An exception to this rule is the regulation by the legislation of the Russian Federation of wartime of criminal liability for crimes against military service committed in wartime or in a combat situation, provided for by the Criminal Code of the Russian Federation itself. The principle of legality means that the person who committed the crime must suffer a strictly defined punishment: in the form, within the limits and in the amount provided for by the Criminal Code of the Russian Federation. The principle of legality is concretized through the prohibition of the application of criminal law by analogy.

b) The principle of equality of citizens before the law (Article 4): Consolidation of this principle means a single basis of criminal liability for all persons, an equal right to the necessary defense, independence from the demographic or social characteristics of the individual, the grounds for exemption from criminal liability and punishment, the conditions for extinguishing a criminal record.

c) The principle of guilt (Article 5) means the subjective imputation and personal nature of criminal liability. Subjective imputation excludes liability without fault: if there is no intent or negligence, the act cannot be qualified as a crime. The personal nature of responsibility is manifested in the fact that each person is criminally liable only for the acts that he himself committed: responsibility cannot be shifted to other persons.

d) The principle of justice (art. 6): The punishment imposed by the court on a person for committing a crime must be fair, i.e. correspond to the nature and degree of social danger of the crime: sanctions for crimes characterized by significant social danger must be more severe than sanctions for less dangerous crimes. This principle reproduces within the framework of the criminal law the constitutional provision: “No one can be repeatedly convicted for the same crime”. This side of the principle of justice enriches the principles of legality and humanism.

e) The principle of humanism (art. 7) is manifested primarily in the fact that the object of criminal law protection is human values ​​(such as life, health, rights, legitimate interests and freedoms of a person). UE is also protected. security of the individual and society as a whole. The second side of the principle of humanism is addressed to ensuring the rights of a person who has committed a crime: punishment and other measures of a criminal law nature applied to a person cannot be aimed at causing physical suffering or humiliation of human dignity. In accordance with the principle of humanism, a more severe type of punishment from among those provided for the commission of a crime is assigned only if a less severe type of punishment cannot ensure the achievement of the goals of punishment.

The object of the crime is what the crime encroaches on. Any crime infringes on public relations and not on things. The object of the crime can only be that social relationship that is protected by the current law (Article 2: public interests, the benefits of man and citizen, the normal functioning of public and state institutions, the safe existence of people; the peace and security of mankind.

The concept of the subjective side of the crime. The subjective side of a crime is the mental activity of a person directly related to the commission of a crime. It forms the psychological, i.e. subjective, the content of the crime, therefore, is its internal (in relation to the objective) side. The subject of a crime is a person who has committed a crime and is capable of incurring criminal liability for it in accordance with the law.

Criminal liability- it is based on the legal obligation established by the criminal, criminal procedural and penal law, the real suffering by the person who committed the crime, state censure, restrictions and deprivation of his rights and freedoms. It begins from the moment the competent state body makes a procedural decision, the implementation of which restricts the rights and freedoms of a person and a citizen. The decision of the guilty verdict and its entry into legal force ends the ongoing process (act) of bringing a person to criminal liability. The pronouncement of a guilty verdict ends with its public proclamation, in which, on behalf of the state, it is announced that the person is guilty of a crime and, as a rule, that he is sentenced.

Criminal liability is the most acute form of state coercion of people to the observance of the law. Therefore, it is assigned to the person who committed the crime, in accordance with the special criminal procedural procedure established by federal law. The strictly regulated criminal procedural procedure for imposing criminal liability on a person who has committed a crime serves not as a means of retribution for what he has done, but as a way and procedural guarantee of ensuring the legality and validity of bringing him to criminal responsibility, preventing the erroneous conviction of a person who has not committed a crime. At the same time, the criminal procedural procedure for bringing a person to criminal liability is associated with significant restrictions on the rights and freedoms of the accused and the suspect.