Withholding from an employee for material damage. How to recover material damage from an employee? How to claim damages

"HR officer. Labor law for a personnel officer", 2012, N N 5, 6, 7

RECOVERY OF MATERIAL DAMAGE FROM AN EMPLOYEE: TOP 10 TYPICAL ERRORS

For any economic activity both the employee and the employer deal with material values. Often, the employer is faced with the problem of bringing to liability the employee who caused material damage employer. Consider the main mistakes of the employer, leading to the impossibility of recovering from the employee the entire amount of damage or part of it.

Article 238 of the Labor Code of the Russian Federation establishes that 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.

At the same time, direct actual damage 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 acquisition, restoration of property or compensation for damage caused by the employee to third parties.

However, not always the employer can compensate for the damage caused to him by the employee. And the point is not so much in the execution of the document on awarding the amount of damage ( we are talking on the court decision to recover the amount of damage from the employee in favor of the employer), how many in the refusal of the courts to satisfy the claims of employers against employees for the recovery of damage. Such cases are not isolated and are not limited to one particular region or typical case. Based on the already existing judicial practice it is possible to draw conclusions about the typical mistakes made by the employer when applying for labor relations, in the event of a situation where an employee causes damage to an employer, as well as in the preparation of an evidence base for a court in disputes on the recovery of damages.

Mistake 1. With a financially responsible person

there is no agreement on full liability

Word of the law: 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. A special case of "other", provided for by the Labor Code of the Russian Federation, are cases of liability in full. The cases of full liability of an employee of the Labor Code of the Russian Federation include (Article 243 of the Labor Code of the Russian Federation):

1) when, in accordance with the Labor Code of the Russian Federation or other federal laws, the employee is held liable in full for damage caused to the employer when the employee performs job duties;

2) shortage of valuables entrusted to him on the basis of a special written agreement or received by him under a one-time document;

3) intentional infliction of damage;

4) 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 work duties by the employee.

Liability in the full amount of the damage caused to the employer can be established by an employment contract concluded with the deputies of the head of the organization, the chief accountant.

An analysis of this norm allows us to conclude that the employee can be held liable in full for the damage caused to the employer only in strictly defined cases and only if there is an agreement on full liability. In the absence of such an agreement, full financial responsibility can only be assigned to the deputy head and chief accountant, but the condition for such responsibility must be indicated in their employment contracts. On the head of the material responsibility in full is assigned by another norm - Art. 277 of the Labor Code of the Russian Federation.

Thus, the absence of an agreement on full liability with a financially responsible person means, in fact, the employer's waiver of his right to turn to the employee with a claim for the full amount of damage. After all, in the absence of such an agreement, the material liability of the employee for the damage caused to the employer comes only in general, provided for in Art. 241 of the Labor Code of the Russian Federation, - that is, in the amount of average earnings.

Written agreements on full individual or collective (team) liability, that is, on compensation to the employer for damage caused in full for the lack of property entrusted to employees, can 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 circle of employees recognized by labor legislation as materially responsible persons is also limited. The Government of the Russian Federation has approved the relevant lists of jobs and categories of employees with whom these contracts can be concluded, as well as standard forms of these contracts.

Additional clarifications: In paragraph 8 of the Resolution of the Plenum Supreme Court RF dated 11/16/2006 N 52 "On the application by the courts of legislation governing the material liability of an employee for damage caused to the employer" (as amended on 09/28/2010; hereinafter - Resolution N 52) the attention of the courts is drawn to the fact that circumstances of significant importance for the correct resolution of the case on compensation for damages by the employee, the obligation to prove which rests with the employer, in particular, include: the absence of circumstances excluding the 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.

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

However, in paragraph 7 of the same Decree, at the same time, it is explained that if the employer claims compensation for damages by the employee within the limits of his average monthly earnings, 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 plaintiff's claims and cannot go beyond them, since 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.

What to do in a situation that often arises for many employers: an employee, being (or becoming) a financially responsible person, refuses to sign an agreement on full liability, thereby trying to avoid the possibility of recovering damage from him in full in the event of such fault? Regarding this situation, one should refer to the explanations given by the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts Russian Federation Labor Code of the Russian Federation" (as amended on September 28, 2010; hereinafter - Resolution No. 2) in paragraph 36.

Summary: The absence of an agreement on full liability with a financially responsible person means that the employee has liability only in the amount of average earnings (Article 241 of the Labor Code of the Russian Federation).

The worker, official duties and whose labor function involves working with material values, who, in accordance with the norms of labor legislation, is recognized as a financially responsible person, but who refuses to conclude an agreement on full material liability, subject to a certain procedure, can be dismissed by the employer on legal grounds. Which, however, does not mean the obligation of the employer to dismiss such an employee. In the described situation, the employer has the right to leave the employee in a financially responsible position without concluding an agreement on full liability. However, in this case, the employer himself bears the risk of impossibility to recover damages in full from the employee (in this case, recovery can only be made in the amount of average earnings in accordance with Article 241 of the Labor Code of the Russian Federation).

Example 1. Individual entrepreneur S. filed a lawsuit against A., K. for the recovery of material damage caused by employees in the performance of labor duties, indicating that the defendants have been in an employment relationship with him since October 17, 2008 as store sellers with shift work schedule. One of the conditions of employment contracts is liability for entrusted goods and services. material values. An agreement on full material collective liability or an agreement on full material liability was not concluded with each of the defendants. When transferring a shift, the goods and cash proceeds were not transferred by the sellers to each other, the goods were accepted jointly. The inventory was carried out monthly. For the period of work from April 1 to May 23, 2009, according to the results of the inventory, the defendants were found to have a shortage of 29,682 rubles. He asked to recover from A., K. jointly and severally the specified amount of material damage.

The court decision dismissed the claim. Reversing the court's decision, remitting the case for a new trial, the Judicial Collegium of the Regional Court in the Ruling indicated the following: in the absence of an agreement on the full liability of the employee for the damage caused to the employer, the dispute on compensation for damage must be resolved by the court, taking into account the provisions of Art. 241 of the Labor Code of the Russian Federation. Article 241 of the Labor Code of the Russian Federation provides that an employee is liable for damages within the limits of his average monthly earnings, unless otherwise provided by the Labor Code of the Russian Federation or other federal laws. Since the collection of additional evidence is required to resolve the issue of compensation for damages within the average monthly earnings of the defendants, by the Ruling of the Judicial Collegium for Civil Cases of the Omsk Regional Court of October 14, 2009 N 33-4943 / 2009, the case was sent for a new trial to the court of first instance.

Consider a kind of mistake: the employer mistakenly concluded an agreement on collective liability with several employees instead of an agreement on full liability with one, but materially responsible person.

Example 2. OAO "Avtodetal-Service" filed a lawsuit against S. and Z. to compensate for the shortfall. As seen from the case file, S. was hired as a storekeeper in the department of foreign cooperation, and Z. held the position of a transporter in the same department. However, neither in the job responsibilities of the storekeeper, nor in the description of the work performed by the transporter, is it indicated as the main labor function the fulfillment of their duties for the maintenance of material assets. In addition, the List of works and categories of workers, during the performance of which full collective (team) responsibility for the shortage of property entrusted to employees, approved by Decree of the Ministry of Labor of Russia dated December 31, 2002 N 85 (hereinafter referred to as the List of Works and Categories of Workers), the position held by the defendant Z., a transporter, as well as the work performed by her, are not included. These circumstances indicate that an agreement on full collective (brigade) liability could not be concluded with the defendants, in connection with which the agreement concluded with them on collective (brigade) liability dated 03.12.2009 cannot serve as a basis for bringing them to material liability. responsibility.

The Zasviyazhsky District Court of Ulyanovsk By decision dated 17.08.2010, the claim of JSC "Avtodetal-Service" against S. and Z. to compensate for the shortfall was denied. The Judicial Collegium for Civil Cases of the Ulyanovsk Regional Court The decision of September 21, 2010 in case No. 33-334810 upheld the decision of the court.

Mistake 2. The employee is not

financially responsible person, but the employer

claims compensation for direct actual damages

in full size (generalized situation, regardless

from the presence or absence of a prisoner with an employee

full liability agreement)

Word of the Law: According to 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.

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. Employees under the age of 18 bear full liability only for intentionally causing damage, for damage caused in a state of alcoholic, narcotic or other toxic intoxication, as well as for damage caused as a result of a crime or administrative offense (Article 242 of the Labor Code of the Russian Federation) .

Additional clarifications: Clause 8 of Decree N 52 states that when considering a case on compensation for direct actual damage caused to an 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, an employee can be brought to justice. responsible for the full amount of the damage caused and at the time of its infliction reached the age of eighteen, except for 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 offense, when the employee can be brought to full liability before reaching the age of 18 (Article 242 of the Labor Code of the Russian Federation).

Regarding the head and his deputy, clarifications were given in paragraphs 9-10 of the same Resolution of the Supreme Court of the Russian Federation. Thus, the full liability of the head of the organization for the damage caused to the organization comes into force by law (Article 277 of the Labor Code of the Russian Federation). In this regard, the employer has the right to demand full compensation for damage, regardless of whether the employment contract with this person contains a condition on full liability. At the same time, 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 is liable (for example, on the basis of Article 277 of the Labor Code of the Russian Federation or clause 2 of Article 25 of the Federal Law of 14.11 .2002 N 161-FZ "On state and municipal unitary enterprises", edited on November 30, 2011).

The deputy head of the organization or the chief accountant may be held liable in full amount, provided that this is established by the employment contract (part 2 of article 243 of the Labor Code of the Russian Federation). If the employment contract does not provide that the said persons shall bear material liability in full in the event of damage, then in the absence of other grounds giving the right to bring these persons to such liability, they may only be liable within the limits of their average monthly earnings.

Summary: In order to recover the amount of damage in full, the employee must be assigned by law to the number of persons from whom recovery of damage in such a volume is possible. In addition, the obligation of the employee to compensate for the damage in full must be provided for by the employment contract, the contract on full liability (in all cases, except for the head of the organization - article 277 of the Labor Code of the Russian Federation).

Example 3. D. worked as a driver in an LLC, an agreement was concluded with him on full liability, according to the act, a Ural car was transferred to him for operation. Taking over the Ural car, D. took upon himself the obligation to monitor its technical condition and safety, as well as to carry out repairs and routine maintenance. On April 27, 2007, this car suffered an engine breakdown. The preliminary amount of the repair amounted to 86,800 rubles, which the plaintiff (employer) asked to recover from the defendant. The defendant denied the claim. The court established the driver's guilt on the basis of the auto expert's report and other evidence. Despite the fact that an agreement on full liability was concluded with the employee, the court was rightly guided by Art. 241 of the Labor Code of the Russian Federation and reasonably placed responsibility on the employee within his average monthly wages, calculated on the date of compensation for damage and according to the rules of Art. 139 of the Labor Code of the Russian Federation.

Error option 2. An agreement has been concluded with the employee

about full financial responsibility, however, his position

and the work performed are not included in the List of Works,

under which the employer has the right

conclude agreements on full liability

Word of the law: In addition to the word of the law set out when considering error No. 1, it should be added that in accordance with the Decree of the Government of the Russian Federation of November 14, 2002 N 823 "On the procedure for approving the Lists of positions and works replaced or performed by employees with which the employer can to conclude written contracts on full individual or collective (team) liability, as well as standard forms of contracts on full liability", the List of works and categories of employees was approved, as well as Standard forms full liability contracts. This List includes both cashiers, controllers and head. warehouses, as well as employees whose job is to accept and pay all types of payments or to accept for storage, processing of material assets, etc.

Very typical mistake employers: the presentation of claims for compensation for damage caused to the car, in full to the driver, who is assigned a company car, while the Labor Code of the Russian Federation allows imposing full liability only in the cases listed in Art. 243 of the Labor Code of the Russian Federation. Most often, the driver of a company car is brought to full liability under paragraph 6 of part 1 of Art. 243 of the Labor Code of the Russian Federation - in case of damage as a result of an administrative offense, if such is established by the relevant state body. The driver will not be simply responsible for the safety of the car (for example, in the case of damage to a car parked on the street or at the employer's office; or damage to the car in an accident in the absence of an administrative offense on the part of the driver) the driver will not!

If the fact that a person has committed an administrative offense is not established, the grounds for imposing full liability under paragraph 6 of Part 1 of Art. 243 of the Labor Code of the Russian Federation is not available. Let's consider an example when the requirements of the employer to the employee-driver were satisfied.

Example 4. By decision of the Gdovsky District Court, the organization's claim against K. for compensation for material damage was satisfied. The plaintiff substantiated his claims by the fact that K., who was in labor relations with their organization, committed a traffic accident while driving company car organization, resulting in damage to another car. By the decision of the justice of the peace K. was found guilty of committing an administrative offense under Part 2 of Art. 12.27 of the Code of Administrative Offenses of the Russian Federation, and he was sentenced to deprivation of the right to drive vehicle. Decision Arbitration Court In the Pskov region, funds were recovered from the organization in favor of a third party (insurance company) in compensation for damage. In this regard, the plaintiff asked to recover this sum of money in full. By the decision of the court, the claims were justifiably satisfied in full.

In another case, the employer denied the claim.

Example 5. The Pskov City Court considered the case on the claim of the State Educational Institution for the recovery of material damage to S., who works as a driver and committed a traffic accident, namely, he lost control, ran into an obstacle - a metal fence, as a result of which the car belonging to the State Educational Institution caused technical damage. Based on the fact that in initiating a case on administrative offense denied, the court rightfully placed on S. limited liability in accordance with Art. 241 of the Labor Code of the Russian Federation in the amount of his average monthly earnings.

Additional clarifications: The conclusion by the employer of an agreement on full liability with an employee whose position or work performed is not provided for by the List of Works and Categories of Employees is illegal. In the event of an illegal conclusion by the employer with the employee of an agreement on full liability, the employee will be liable for the damage caused to the employer only in the amount of the average monthly earnings. At the same time, the amount of the employee's average monthly earnings on the day the harm was caused must be confirmed by evidence.

Summary: In the case under consideration, only limited material liability in the amount of his average earnings can be imposed on the employee for the damage caused by him to the employer.

Example 6. Alliance LLC filed a lawsuit against its employee K. for the recovery of damage caused to a VAZ-21140 car owned by the enterprise as a result of a traffic accident due to K.'s fault, in the amount of 57,807 rubles. and court costs. The defendant recognized the claim in part in the amount of the average monthly earnings.

Resolving the dispute and satisfying the claims of Alliance LLC for the recovery of the cost of restoring the car, the court indicated that an agreement was concluded with K. on full liability, the employer provided sufficient evidence of the need to bear the costs of restoring repairs motor vehicle and therefore the requirements must be met. The Court of Cassation agreed with these findings.

Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation Determination of November 19, 2009 N 18-B09-72 Decision of the Ust-Labinsk District Court Krasnodar Territory dated 01/16/2009, Determination of the Judicial Collegium for Civil Cases of the Krasnodar Regional Court dated 02/24/2009 canceled. The case was remanded to the Court of First Instance for a new trial, stating the following:

As seen from the case file, K. held the position of a specialist production department, with the additional imposition of duties on driving a car owned by the enterprise. However, the position occupied by the defendant, as well as the work performed by him, are not included in the List of Works and Categories of Employees.

These circumstances indicate that the agreement on full liability could not be concluded with the defendant, and therefore the agreement concluded with him on full liability could not serve as a basis for bringing him, as an employee, to full liability.

During a new consideration of the case, the court should take into account the above and resolve the dispute that has arisen in accordance with the circumstances established in the case and the requirements of the law.

Mistake 3. The employer demands damages

from one of the financially responsible persons, while

there is a collective (team) responsibility

Word of the Law: According to Art. 245 of the Labor Code of the Russian Federation, when jointly performed by employees certain types work related to the storage, processing, sale (vacation), transportation, use or other use of the values ​​transferred to them, when it is impossible to distinguish between the responsibility of each employee for causing damage and conclude an agreement with him on compensation for damage in full, a collective (brigade) may be introduced material liability. Written contract on collective (team) liability for damage is between the employer and all members of the team (team).

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

To be released from liability, a member of the team (team) must prove the absence of his guilt. When recovering damages in court, the degree of guilt of each member of the team (team) is determined by the court.

Additional clarifications: According to the clarifications given in clause 14 of Decree No. 52, if a claim for damages is filed on the grounds provided for in Art. 245 of the Labor Code of the Russian Federation (collective (team) material liability for causing damage), the court needs to check whether the employer complied with the rules for establishing collective (team) material liability provided for by law, and also to all members of the team (team) who worked during the period of damage, a claim has been brought. 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.

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.

Summary: For the correct resolution of the case in the presence of collective financial responsibility of the brigade, the employer's claim must be brought against all employees of the brigade / team. In this case, the degree of responsibility will be established in relation to each of the brigade / team.

Example 7. An individual entrepreneur (IP) G. filed a lawsuit against S. and T. for compensation for material damage. The defendants were in an employment relationship with IP G. in the position of sellers with a place of work in the grocery store "B ***". From the case file it follows: labor activity S. and T. was connected with the storage and sale of material assets entrusted to them by the plaintiff, while the defendant carried out her activities as part of a team, which included the head of the store E. However, contracts were concluded with S. and T. on full individual, and not collective liability. In addition, the plaintiff did not conclude an agreement on material liability with the manager of the "V ***" store, who was actually a member of the team that had not only free access to inventory items, but also processed the goods, which the defendants rightfully referred to during the trial. proceedings. Other shortcomings of the plaintiff's evidence base were also identified. Under such circumstances, the decision of the court of first instance, by which proportional sums of damages were recovered from the defendants (in part), cannot be recognized as lawful and justified. By the cassation ruling of the Judicial Collegium for Civil Cases of the Tyumen Regional Court of August 2, 2010 in case N 33-3135 / 2010, the decision of the Yalutorovsk City Court of the Tyumen Region of June 22, 2010 was completely canceled and a new decision was made to refuse to satisfy the claim of IP G. to S. and T. for the recovery of damages and court costs.

Example 8. By the decision of the Judicial Collegium for Civil Cases of the Astrakhan Regional Court, on the grounds of non-involvement in the case of all members of the brigade, the decision of the Znamensky City Court of the Astrakhan Region in the case on the claim was canceled individual entrepreneur O. to L., T., I. on compensation for damage caused by employees in the performance of labor duties.

Revoking the decision of the district court, the panel of judges indicated that the court ignored the fact that the case file contains several agreements on full collective (brigade) liability, which differ in the composition of the team of persons who signed them. These persons were not involved in the case. Imposing the obligation to compensate for damages on the sales assistant L., the court ignored the fact that the specified employee was not included in the contract on full collective (team) liability and did not sign it.

Mistake 4. The employer did not provide proper storage

material values ​​entrusted to the employee

Word of the law: Article 239 "Failure by the employer of the obligation to ensure proper conditions for the storage of property entrusted to the employee" of the Labor Code of the Russian Federation is one of the circumstances excluding the liability of the employee.

Additional clarifications: Decree N 52 in clause 5 once again notes that an employee cannot be held liable if the damage was caused by 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 (Article 239 of the Labor Code of the Russian Federation).

At the same time, actions of an employee that correspond to modern knowledge and experience, when the set goal could not be achieved otherwise, the employee duly performed the duties assigned to him, showed a certain degree of care and discretion, took measures to prevent damage, and the object of risk was material values, not the life and health of people.

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.

Summary: If the court establishes the employer's non-fulfillment or improper fulfillment of the obligation to ensure proper conditions for storing property entrusted to the employee, the employer's claim to recover the amount of damage from the employee can and should be denied.

Example 9 - compliance with the rules for concluding an agreement on full collective (team) liability, the illegality of the behavior of sellers S. Yu.V. and L. V.M., as well as the presence of direct actual damage, the Polesskiy District Court of the Kaliningrad Region, reasonably dismissed the claim for damages. At the same time, the court proceeded from the fact that an agreement on collective (brigade) liability for a shortage of property entrusted to employees was not concluded between the parties, acts of acceptance and transfer of material assets when hiring sellers, when going on vacation and dismissal were not drawn up. Thus, the court found that the employer did not create the conditions necessary for the team (team) to ensure the complete safety of valuables, did not provide the conditions necessary for timely accounting and reporting on the movement and balances of the transferred valuables, which, by virtue of Art. 239 of the Labor Code of the Russian Federation excludes the liability of the employee.

Mistake 5. The employer did not prove the size

damage caused to him

Word of the law: The obligation to establish the amount of damage caused to him and the reason for its occurrence is assigned to the employer Art. 247 of the Labor Code of the Russian Federation. The same norm regulates the procedure for determining the amount of damage: before making a decision on compensation for damage by specific employees, the employer is obliged to conduct an audit to determine the amount of damage caused and the reasons for its occurrence. To conduct such an inspection, the employer has the right to create a commission with the participation of relevant specialists. Requesting a written explanation from the employee to establish the cause of the damage is mandatory. In case of refusal or evasion of the employee from providing the specified explanation, an appropriate act is drawn up.

The amount of damage caused to the employer in the event of loss and damage to property, in accordance with Art. 246 of the Labor Code of the Russian Federation is determined by actual losses calculated on the basis of market prices in force in the area on the day the damage was caused, but not lower than the value of the property according to accounting data, taking into account the degree of depreciation of this property.

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

Additional clarifications: Decree No. 52 in paragraph 13 clarifies that in cases where it is impossible to establish the day the damage was caused, the employer has the right to calculate the amount of damage on the day it was discovered.

Summary: In the absence of evidence of the amount of damage claimed by the employer from the employee, as well as in the absence of shortcomings in the procedure for establishing this amount, the employer's claims may not be satisfied.

Example 10. CJSC "T***" applied to the Zhiguli City Court with a claim against former employee- S*** M.Yu. on compensation for damage caused by a shortage of entrusted inventory items in the amount of 2,109,214 rubles. The court established that the defendant worked at CJSC "T***" as a work foreman, an agreement was concluded with him on full liability for the shortage of property entrusted by the employer. In confirmation of the amount of damage caused, the plaintiff presented inventory lists and collation sheets of the results of the inventory of material assets entrusted to S *** M. Yu. under the snow, this property was not counted and not taken into account during the inventory. The material values ​​found on the territory were kept openly, they had access to unauthorized persons. By its Decision dated March 19, 2009, the Zhiguli City Court reasonably refused to satisfy the claims, motivating its conclusions by the fact that in violation of Art. 247 of the Labor Code of the Russian Federation, the amount of damage actually caused by the employer has not been reliably established, as well as the reasons for its occurrence.

Mistake 6. Demanding an employee for damages

brought under the circumstances

excluding the material liability of the employee

Word of the law: Article 239 of the Labor Code of the Russian Federation establishes circumstances that exclude the liability of an employee. Thus, the material liability of the employee is excluded in cases of damage due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer's failure to fulfill the obligation to ensure proper conditions for the storage of property entrusted to the employee.

Additional clarifications: According to paragraph 5 of Decree N 52, actions of an employee that correspond to modern knowledge and experience can be attributed to normal economic risk, when the goal could not be achieved otherwise, the employee duly performed the duties assigned to him, showed a certain degree of care and prudence, took measures to prevent damage and the object of risk was material values, and not the life and health of people.

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.

Summary: When establishing the circumstances specified in Art. 239 of the Labor Code of the Russian Federation, an employee cannot be held liable either in full or in a limited amount.

Example 11. The decision of the Chapaevsky city court Samara region dated 06/18/2009, the claim of MP "Improvement and landscaping" to L. for compensation for damage caused in the performance of labor duties was denied. In dismissing the claim, the court rightly pointed out that the plaintiff did not provide evidence confirming the existence of a causal relationship between L.'s behavior and the damage that had occurred, as well as his guilt in the formation of a shortage. As the court established, the sand from the improvement site was removed and stored outside the territory pumping station employer (and even during the defendant's vacation), and third parties except L. had access to the inventory room where the can of paint was stored, in connection with which the court came to the correct conclusion that the employer did not provide proper storage conditions entrusted to L. property, in connection with which, in accordance with Art. 239 of the Labor Code of the Russian Federation, the liability of an employee is excluded.

Mistake 7. Attracting an employee

to full liability

on the basis of paragraph 5 of the first part of Article 243 of the Labor Code of the Russian Federation

(in case of damage as a result of criminal acts)

in the absence of a valid court verdict

Word of the law: In accordance with paragraph 5 of part 1 of Art. 243 of the Labor Code of the Russian Federation, liability in the full amount of the damage caused is assigned to the employee, among others, in the event of damage as a result of the employee’s criminal actions established by a court verdict.

Additional clarifications: According to paragraph 11 of Decree No. 52, given that the existence of a guilty verdict of the court is prerequisite for the possible attraction of the employee to full liability under paragraph 5 of part 1 of Art. 243 of the Labor Code of the Russian Federation, the termination of a criminal case at the stage of preliminary investigation or in court, including on non-rehabilitating grounds (in particular, in connection with the expiration of the statute of limitations for criminal prosecution, as a result of an amnesty act), or the issuance of an acquittal by the court cannot serve as a basis to bring a person to full financial responsibility.

If a guilty verdict was passed against an employee, however, as a result of an amnesty act, he was completely or partially released from punishment, such an employee may be held fully liable for damage caused to the employer, on the basis of paragraph 5 of part 1 of Art. 243 of the Labor Code of the Russian Federation, since there is a court verdict that has entered into legal force, which establishes the criminal nature of his actions. The impossibility of bringing the employee to full liability under paragraph 5 of part 1 of Art. 243 of the Labor Code of the Russian Federation does not exclude the right of the employer to demand from this employee full compensation for the damage caused on other grounds.

Summary: In the absence of a court verdict that has entered into legal force, the employee cannot be held fully liable under paragraph 5 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 from this employee full compensation for the damage caused on other grounds.

Example 12. JSC "Emanzhelinskkhleb" filed a lawsuit against its employee F. for damages in recourse. As was established by the court, on 07.10.2005 the driver of the enterprise F., driving a ZIL-431410 car, drove into the oncoming traffic lane, where a collision occurred with a VAZ-2106 car driven by driver B., who died from injuries received as a result of this accident. F. was found guilty of committing an accident by the traffic police. By the decision of the Sosnovsky District Court of the Chelyabinsk Region dated March 13, 2006, the criminal case initiated against F. was terminated due to the reconciliation of the accused with the representative of the victim. By the decision of the Yemanzhelinsky City Court of the Chelyabinsk Region dated August 28, 2006, compensation was collected from JSC "Emanzhelinskkhleb" in favor of the victim moral damage in the amount of 80 thousand rubles, which was paid by the enterprise.

By the decision of the Yemanzhelinsky City Court of the Chelyabinsk Region of April 25, 2007, left unchanged by the decision of the Judicial Collegium for Civil Cases of the Chelyabinsk Regional Court of June 14, 2007, the claims of Yemanzhelinskkhleb JSC against F. were partially satisfied. It was decided to recover from F. in favor of OAO Yemanzhelinskkhleb 40,000 rubles in compensation for damage, as well as court costs in the amount of 1,300 rubles.

By the decision of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation of 08/01/2008 N 48-B08-7, the decision of the Yemanzhelinsky City Court of the Chelyabinsk Region of 04/25/2007 and the ruling of the Judicial Collegium for Civil Cases of the Chelyabinsk Regional Court of 06/14/2007 were canceled. The case was remanded to the court of first instance for a new trial.

Upon acceptance of this Definition the judicial board pointed out that the court committed a significant violation of the substantive law, expressed in the application of the norm of the law (clause 5, part 1, article 243 of the Labor Code of the Russian Federation), which is not subject to application.

In accordance with paragraph 5 of part 1 of 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 event of damage as a result of the employee’s criminal actions established by a court verdict. In the meantime, the court established, and from the materials of the case, that there is no conviction in the criminal case against F. that has entered into legal force.

By virtue of paragraph 1 of Art. 1081 of the Civil Code of the Russian Federation, a person who has compensated for harm caused by another person (an employee in the performance of labor duties) has the right to claim back (recourse) against this person in the amount of the compensation paid, unless a different amount is established by law.

However, an analysis of the norms of the law and the materials of the case does not allow us to conclude that OAO Yemanzhelinskkhleb has the right to demand full compensation from F. for damages, since Art. 243 of the Labor Code of the Russian Federation or other federal laws do not provide for the full liability of the driver F., and Art. 241 of the Labor Code of the Russian Federation establishes the limits of the employee's liability (within their average monthly earnings).

Mistake 8

damage is determined by the employer in the amount,

exceeding the direct actual damage

Word of the law: According to the provisions 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 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 wear and tear of this property.

Additional clarifications: In accordance with clause 13 of Decree N 52, if during the time the case is being considered in court, the amount of damage caused to the employer by the loss or damage to 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 a larger amount 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.

Summary: The employer has the right to receive only the amount of damage, the amount of which is established on the day the damage was caused or discovered.

Example 13. FGU DEP filed a lawsuit against G. for compensation for material damage in the amount of 2,419,378 rubles. losses, referring to the fact that by the verdict of the Saratov district court of the Saratov region of 02.02.2006 former director enterprise G. was convicted under Part 2 of Art. 160 of the Criminal Code of the Russian Federation with the appointment of a penalty in the form of a fine in the amount of 36 thousand rubles. to state revenue.

Using his right as a temporary acting director, the director committed misappropriation, that is, theft of someone else's property entrusted to him, using his official position, falsified evidence in a civil case and thereby illegally obtained the property right to dispose of an apartment worth 399,360 rubles, causing thus the company material damage to 399 360 RUB.

The plaintiff asked to recover from the defendant the cost of the damage caused (the cost of the apartment according to the court verdict - 399,360 rubles) in the amount of 2,583,411.9 rubles. due to the rise in price per square meter total area residential premises in Saratov in the II quarter of 2009

The court justifiably dismissed the plaintiff's claim. In accordance with 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. Direct actual damage is understood as a real decrease in the employer's cash property or deterioration in the condition of the said property.

According to paragraph 5 of part 1 of 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 event of damage as a result of the employee’s criminal actions established by a court verdict.

It follows from the court verdict that the defendant caused real damage to the plaintiff by his criminal actions in the amount of 399,390 rubles, which was recovered from the defendant in full on the basis of the decision of the Leninsky District Court of Saratov dated 26.05.2008. The court's decision is currently being implemented. Under these circumstances, the plaintiff has no legal grounds to recover from the defendant pecuniary damage in the amount of 2,583,411 RUB. 90 kop. by virtue of h. 1 Article. 1064 and Art. 15 of the Civil Code of the Russian Federation. The Judicial Collegium for Civil Cases of the Saratov Regional Court, in a cassation ruling of September 9, 2009, the decision of the Leninsky District Court of the city of Saratov of July 16, 2009, on the refusal of the FGU DEP to satisfy the claims against G. B.E. on compensation for harm caused by the crime, left unchanged, the cassation appeal - without satisfaction.

Error 9. The employer has filed a claim for recovery

overpaid wages in the event that

such a right to the employer Art. 137 of the Labor Code of the Russian Federation not provided

Word of the law: In accordance with Art. 137 of the Labor Code of the Russian Federation, deductions from the employee's salary to pay off his debt to the employer can be made:

To compensate for the unworked advance payment issued to the employee on account of wages;

To pay off an unspent and not returned in a timely manner advance payment issued in connection with a business trip or transfer to another job in another area, as well as in other cases;

To return the amounts overpaid to the employee due to accounting errors, as well as the amounts overpaid to the employee, in case of recognition by the body for consideration of individual labor disputes fault of the employee in non-compliance with labor standards (part 3 of article 155 of the Labor Code of the Russian Federation) or idle time (part 3 of article 157 of the Labor Code of the Russian Federation);

Upon dismissal of an employee before the end of the working year, on account of which he has already received annual paid leave, for unworked vacation days. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of part 1 of Art. 77 of the Labor Code of the Russian Federation (refusal of an employee to transfer to another job, which is necessary for him in accordance with a medical report) or paragraphs 1, 2 or 4, part 1 of Art. 81 of the Labor Code of the Russian Federation (in cases of dismissal at the initiative of the employer in the event of liquidation of the organization or termination of activity by an individual entrepreneur; reduction in the number or staff of employees of an organization, an individual entrepreneur; change in the owner of the property of an organization (in relation to the head of the organization, his deputies and chief accountant), respectively), and also provided for in paragraphs 1, 2, 5, 6, 7 h. 1 Article. 83 of the Labor Code of the Russian Federation (termination of an employment contract due to circumstances beyond the control of the parties).

In all cases, except for the last one (the return of vacation pay received for unworked vacation days), the employer has the right to decide on the deduction from the employee's salary no later than one month from the date of expiration of the period established for the return of the advance, repayment of debts or incorrectly calculated payments and subject to if the employee does not dispute the grounds and amounts of deduction.

Wages overpaid to an employee (including in the event of incorrect application of labor legislation or other regulatory legal acts containing norms labor law), cannot be recovered from him, except in the following cases:

counting error;

If the body for the consideration of individual labor disputes recognizes the fault of the employee in failure to comply with labor standards (part 3 of article 155 of the Labor Code of the Russian Federation) or idle time (part 3 of article 157 of the Labor Code of the Russian Federation);

If the salary was overpaid to the employee in connection with his illegal actions established by the court.

Additional clarifications: The Supreme Court of the Russian Federation in the Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the second quarter of 2010 once again indicated to the courts that the obligation to return unjust enrichment can only be imposed on a person who, without statutory, others legal acts or by a transaction of grounds acquired or saved property at the expense of another person. In accordance with Art. 1109 of the Civil Code of the Russian Federation, wages and equivalent payments, pensions, allowances, scholarships, compensation for harm caused to life or health, alimony and other amounts of money provided to a citizen as means of subsistence are not subject to return as unjust enrichment. Deductions from wages, including wages overpaid by an employee, can only be made within the framework and in strict accordance with the provisions of Art. 137 of the Labor Code of the Russian Federation.

Summary: Overpaid wages cannot be recovered from an employee in cases other than those specified in Art. 137 of the Labor Code of the Russian Federation. Wages overpaid to an employee through no fault of the employee and not in connection with an accounting error shall not be recoverable in favor of the employer.

Example 14 Control Federal Service bailiffs in the Ulyanovsk region (hereinafter - UFSSP) filed a claim against K. for damages. By the decision of the Zavolzhsky District Court of Ulyanovsk dated December 23, 2010, the UFSSP's claims were denied.

It follows from the case file that the defendant served in the UFSSP as a bailiff and was dismissed from service on September 7, 2010 at the initiative of a civil servant under paragraph 3 of part 1 of Art. 33 of the Federal Law of July 27, 2004 N 79-FZ "On the state civil service Russian Federation", that is, until the end of the working year on account of which he had already received annual paid leave. Thus, unworked leave amounted to 21 days. used vacation, total 21 days According to payslips for September, October 2010, memo dated 11/08/2010, in order to pay off the debt for unworked vacation days upon dismissal, a deduction was made from the defendant within the accrued Money. The amount of 8303 rubles remained outstanding. 27 kop. Making a claim for recovery from the defendant damages in the amount of 8303 RUB. 27 kopecks, the plaintiff referred to the fact that this amount was overpaid wages to him.

The court, when making its decision, indicated that the provisions of Art. 137 of the Labor Code of the Russian Federation, legal norms are consistent with the provisions of the Convention international organization Labor dated July 1, 1949 N 95 "Regarding the protection of wages" (Article 8), Art. 1 of Protocol N 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, mandatory for application by virtue of Part 4 of Art. 15 of the Constitution of the Russian Federation, art. 10 of the Labor Code of the Russian Federation and contain an exhaustive list of cases when it is allowed to recover from an employee overpaid wages, including if the mistake made was the result of incorrect application of labor legislation or other regulatory legal acts containing labor law norms. Such cases, in particular, include cases where wages were overpaid to an employee in connection with his illegal actions established by the court, or as a result of a counting error. Since the grounds provided for by law for the recovery in favor of the employer of the wages paid to the employee were not established by the court when resolving this case, the refusal to satisfy the claim brought against D.V. Kopalkin is correct.

The Judicial Collegium for Civil Cases of the Ulyanovsk Regional Court upheld the said decision of the lower court by the cassation ruling of February 1, 2011 in case No. 33-325/2011.

Mistake 10. Claim for the recovery of the amount of damage,

caused to the employer by the employee,

claimed outside the statute of limitations

Word of the law: The procedure for recovering damages from an employee is established by Art. 248 of the Labor Code of the Russian Federation. Recovery from the guilty employee of the amount of damage caused, not exceeding the average monthly earnings, is carried out by order of the employer. The order may be made no later than one month from the date of the final determination by the employer of the amount of damage caused by the employee. However, if the monthly period has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer, and the amount of damage to be recovered from the employee exceeds his average monthly earnings, then recovery can only be carried out by the court.

The law provides for the possibility of voluntary compensation by the employee for the amount of damage. In this case, the employee submits to the employer a written obligation to compensate for the damage, indicating specific payment terms. In case of dismissal of an employee who gave a written obligation to voluntarily compensate for damage, but refused to compensate for the specified damage, the outstanding debt is recovered in court. With the consent of the employer, the employee may also transfer to him equivalent property to compensate for the damage caused or repair damaged property.

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

In addition, according to Art. 232 of the Labor Code of the Russian Federation, termination of an employment contract after causing damage does not entail the release of the party to this contract from material liability provided for by the Labor Code of the Russian Federation or other federal laws.

A labor dispute at the request of the employer for compensation by the employee for damage caused to the employer (unless otherwise provided by federal laws) is considered directly in the courts (Article 391 of the Labor Code of the Russian Federation).

In accordance with Part 2 of Art. 392 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 one year from the date of discovery of the damage caused.

Additional clarifications: In paragraph 3 of Resolution No. 52, the courts are additionally explained that the judge does not have the right to refuse to accept the statement of claim on the grounds that the employer missed the one-year period calculated from the day the damage was discovered (part 2 of article 392 of the Labor Code of the Russian Federation).

If the employer has missed the deadline for applying to the court, the judge has the right to apply the consequences of missing the deadline (deny the claim), if the defendant declares that the deadline was missed before the court makes a decision and the plaintiff does not provide evidence of the validity of the reasons for missing the deadline, which may serve as the basis for its restoration ( part 3 article 392 of the Labor Code of the Russian Federation). Valid reasons for missing the deadline may include exceptional circumstances that do not depend on the will of the employer, which prevented the filing of a statement of claim.

Summary: If the employer misses the deadline for filing a lawsuit to recover the amount of damage caused by the employee, if the employee has a corresponding application for the application of the consequences of such a omission, it almost always precludes the court from satisfying the claim on this basis. Present evidence and substantiate good reasons Very few plaintiff employers manage to miss this deadline.

Example 15. By the decision of the Volzhsky District Court of the Samara Region dated June 26, 2009, during the trial, at the request of the defendant, the claim of the individual entrepreneur E. V. S *** for compensation for material damage in the amount of 40,701 rubles caused through the fault of E V. V *** and E. A. Z ***, who worked as sellers for the specified individual entrepreneur, as a result of improper performance of their labor duties. In support of the decision, the court pointed out that the shortage of inventory items entrusted to E.V.V*** and E.A.Z*** was revealed by the plaintiff during the inventory carried out on 25.05. statement of claim for the recovery of damages filed only 06/01/2009, that is, after the one-year period under Art. 392 of the Labor Code of the Russian Federation.

The Judicial Collegium for Civil Cases of the Samara Regional Court, agreeing with the said decision, in its ruling dated September 2, 2009, indicated that the expiration of the limitation period, the application of which was declared by the party to the dispute, by virtue of paragraph 2 of Art. 199 of the Civil Code of the Russian Federation is an independent basis for the court to issue a decision to dismiss the claim, the plaintiff did not provide evidence of the validity of the reasons for missing the deadline for applying to the court, therefore the cassation appeal of IP E.V.S *** was left without satisfaction.

Also quite common controversial situations arising between the employer and the employee regarding the reimbursement by the latter of the cost of training paid at the expense of the employer. However, the Labor Code of the Russian Federation, regardless of whether the dismissed student (trained) employee was a financially responsible person or not, established the obligation of the employee a priori 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 (Article 249 of the Labor Code of the Russian Federation ), unless otherwise provided by the employment contract or training agreement.

The last sentence indicates that the Labor Code of the Russian Federation provides the parties to the employment contract to provide for other conditions of the employment contract or training agreement in terms of reimbursement of the employer's training costs under consideration. Including in terms of full reimbursement of the entire cost of training (the employer's expenses incurred for training in full).

The main points of contention are:

1. The amount of the amount recovered from the employee (part or full cost of training costs).

2. The presence or absence of the very possibility of such a penalty (after all, Article 249 of the Labor Code of the Russian Federation allows for a penalty only if the employee is dismissed without good reason before the expiration of the period stipulated by the employment contract or training agreement). In the event that valid reasons for dismissal are established within the same timeframe, the recovery of part or the full cost of the employer's costs for training from the employee can no longer be made.

3. The absence of a period specified in the employment contract or agreement on training, during which the employee must work at the enterprise after graduation.

However, consideration of the situation with the apprenticeship and liability of an employee who quit without good reason before the period agreed by the parties to the employment contract is the subject of a separate topic for consideration.

All the above errors analyzed in this article, unfortunately, are very typical. But not exceptional. The list of such "popular" errors is much wider than the cases considered. They also include:

Incorrectly carried out inventory;

Appeal to the court of an improper plaintiff;

Court errors (failure to involve the co-defendant, third parties, etc.);

Failure to establish the fault of the employee in causing damage;

Failure to establish a causal relationship between the actions (inaction) of the employee and the occurrence of damage to the employer;

Establishment by the court of the absence of labor relations between the plaintiff and the defendant;

Identification of a shortage during the absence of a financially responsible person who retained a job, etc.

We considered only those that, by popularity, were included in the so-called top 10 mistakes. The uniformity of judicial practice in terms of the results of the consideration of the dispute when the above mistakes of employers are identified allows us to conclude that an error made at a certain stage of the employment relationship with an employee may lead to the impossibility of recovering from him the full amount of damage caused by the latter to the employer. This means that the employer’s ability to predict the consequences of the mistakes made and, if possible, eliminate them before a situation arises causing damage to the employer.

Bibliographic list

1. Determination of the Judicial Collegium for Civil Cases of the Omsk Regional Court dated October 14, 2009 N 33-4943 / 2009 // Bulletin of Judicial Practice of the Omsk Regional Court. 2010. N 42 // Official website of the Omsk Regional Court [ Electronic resource]. URL: oblsud. oms. sudrf. en/modules. php? name=docum_sud&id=71).

2. Determination of the Judicial Collegium for Civil Cases of the Ulyanovsk Regional Court dated September 21, 2010 in case No. 33-334810 // Official website of the Ulyanovsk Regional Court [Electronic resource]. URL: uloblsud. ru/index. php? option=com_content&task=view&id=192&Itemid=170&idCard=20854).

3. Generalization of the practice of consideration by the courts of the Pskov region of civil cases related to the application of legislation governing the liability of employees for damage caused to the employer, for 2009 // Official website of the Pskov Regional Court [Electronic resource]. URL: oblsud. psk. sudrf. en/modules. php? name=docum_sud&id=225.

4. Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation of November 19, 2009 N 18-B09-72 // Official website of the Supreme Court of the Russian Federation [Electronic resource]. URL: vsrf. ru/second. php.

5. Cassation ruling of the Judicial Collegium for Civil Cases of the Tyumen Regional Court dated August 2, 2010 in case N 33-3135 / 2010 // Official website of the Tyumen Regional Court [Electronic resource]. URL: oblsud. tum. sudrf. en/modules. php? name=bsr&op=show_text&srv_num=1&id=72400001008091502092621000062457.

6. Generalization of judicial practice in the consideration of civil cases related to the application of the norms of the Labor Code of the Russian Federation, which regulates the liability of employees for damage caused to the employer, for 2009 - the first half of 2010 // Official website of the Astrakhan Regional Court [Electronic resource]. URL: files. sudrf. ru/1512/user/Docs/obobsh_grajdan_24.rtf.

7. Information on the results of the generalization of the practice of consideration by district (city) courts of the Kaliningrad region of civil cases related to the resolution of labor disputes in 2008 // Official website of the Kaliningrad Regional Court [Electronic resource]. URL: kaliningrad-court. ru/kos.

8. Information on the results of the generalization of judicial practice in civil cases in 2009 on the liability of employees for damage caused to the employer // Official website of the Samara Regional Court [Electronic resource]. URL: files. sudrf. ru/1548/user/2010_obzori/Obzor2010gr_dela. doc.

The Labor Code of the Russian Federation strictly protects the interests and rights of the employee and his employer. By causing damage to the property of the employer, the employee, thereby, violates the right of ownership and is obliged to compensate for this damage. Withholding material damage from the employee's wages is provided for by the provisions of Art. 21 of the Labor Code of the Russian Federation. In addition, sect. XI Labor Code of the Russian Federation regulates mutual liability for each of the parties.

Basic requirements of the law

The general rule is this: the employee is obliged to compensate only for direct damage caused to the employer, without. Thus, the legislators, in some way, eased the position of the worker. There are other benign provisions:

• The liability of an employee is limited to the amount of his average monthly earnings.
• Art. 239 of the Labor Code of the Russian Federation established the circumstances when liability is excluded.
• According to Art. 240, the right of the employer is to generally refuse to recover from the employee any damage caused by him.

Still, property damage must be compensated to the employer. But first, the size of the damage itself must be accurately determined, as well as the causes of its occurrence. And this is the duty of the employer, its failure to fulfill it entails the impossibility of compensation for damage.

The employer is obliged to determine the amount of damage and establish the circumstances of its occurrence.

In order for the liability of the employee to be established, an audit must be carried out, and a written explanation must be requested from the employee himself. The cause of the damage can only be established if these conditions are met, and the fault of the employee is also determined. Of course, the employee may evade giving explanations, in which case an act must be drawn up.

Ways to make amends

Different ways can be established by the employee of the established amount of damage. If the perpetrator admitted this fact and is ready to voluntarily compensate for the damage, compensation, full or partial, is carried out only with the consent of the employer. Damaged property can be repaired, equivalent property can be transferred in exchange or a certain amount of money can be paid. In agreement with the employer, payment by installments is possible if there is a written obligation to deposit funds with a certain frequency. In case of non-fulfillment of obligations by the employee, the debt is collected in court.

If the fact of causing damage or its size is not recognized, in this case a disputed procedure may be applied (for example, by contacting the authority for labor disputes). If the employer forcibly recovers damages from the employee, without his consent, in an amount not exceeding his average earnings, the employee has the right to appeal such a decision of the management, but after the funds have been recovered. The recovery cannot be converted into a monetary equivalent paid:

• When causing harm to health, and if the damage is incurred by persons as a result of the death of the breadwinner.
• For those who have been injured while performing job responsibilities, and members of their families.
• By birth of a child, single mother or father, mother of many children.
• For work in extreme or harmful conditions labor and in other cases provided for by law.

You can and should fight for your rights if material damage has been caused by company employees. However, remember that even in the best case, you cannot count on a refund of an amount exceeding the employee's monetary allowance. Therefore, it is better not to trust expensive things to low-skilled personnel. The best remedy for damage is to prevent it.

Deductions from wages can be for three reasons. The first is the writ of execution. Secondly, this decision was made by the administration. Well, the last reason is the desire of the employee himself.

Writs of execution cannot be ignored. According to them, from the employee’s salary, you must withhold:

• periodic payments (for example, alimony);
• collection of property debts (if the employee does not have property or it is not enough to pay off the debt);
• compensation for health damage.

Most often, the organization of deductions from wages is carried out in relation to alimony. They can be set in a fixed amount. For example, if the salary of an employee is constantly changing. Or as a percentage of salary (¼, ⅓ or ½ of income - depending on the number of children).

In addition to such mandatory deductions, the company's management has the right to make deductions from salary in relation to:

• unworked advance payment issued on account of salary;
• unspent and not returned in a timely manner, issued under the report, in connection with the transfer to work in another area, etc.;
• salaries and other amounts overpaid to an employee due to a counting error or when proving his guilt in downtime or failure to comply with labor standards;
• amounts for unworked vacation days upon dismissal of an employee before the end of the working year for which he is entitled to vacation;
• amounts of benefits for temporary disability and for pregnancy and childbirth, which were paid to the employee in a larger amount due to a calculation error (for example, when calculating earnings for the billing period, an arithmetic error was made, letter from Rostrud dated October 1, 2012 No. 1286-6-1) or illegal actions of the employee himself (say, he hid information that affects the amount of benefits).

Have a question

We used the wrong benefit calculation algorithm. Is this a counting error?

No, such an error cannot be called counting or arithmetic. Therefore, it will not be possible to withhold an overpayment from an employee. Now, if you made a mistake, say, when multiplying the amount of daily earnings by the number calendar days in a period of disability or vacation, is another matter. Such a miscalculation would be precisely arithmetical.

Also, from the employee’s earnings, you can withhold compensation for material damage that he caused to the organization. The basis here will be articles 238 and 240 of the Labor Code of the Russian Federation. Well, if the employee himself asks to deduct some amount from his salary, then let him write a statement. Here is his sample:

Separately, I will allocate loans to employees. Here it is more convenient to prescribe in the contract itself that you will withhold a certain part of the salary.

Limits on the amount of deductions

Deductions from salaries, which are carried out at the initiative of the organization, are limited to 20 percent (Article 138 of the Labor Code of the Russian Federation). They can be withheld at each payment of income. However, if you simultaneously withhold money from an employee’s income both at the initiative of the administration and under executive documents, then their total amount of deductions should not exceed 50 percent of the salary in hand. And the maximum amount of deductions can reach 70 percent of earnings, if, according to executive documents, the employee must pay:

• compensation for harm caused to health;
• compensation for damage to persons who have lost their breadwinner or caused by a crime;
• alimony for minor children. Bailiffs determine the amount of alimony based on the following proportions. One child is entitled to ¼ of the income, two - 1/3. For three or more children, half of the earnings will be kept (clause 1, article 81 of the RF IC).

But at the same time, keep in mind an important detail: in any case, your share of retention cannot be more than 20 percent. At the same time, the requirements of executive documents are mandatory. They must be satisfied first.

Maximum deduction amount

This means that the employee's debt to the organization can be withheld from his income only after all obligations under the writ of execution are repaid. And if, for example, your employee pays alimony for three children in the amount of half of his earnings, then you will not be able to collect anything additional from him. Representatives of Rostrud spoke about this in a letter dated May 30, 2012 No. PG / 3890-6-1.

As for the deduction from the salary at the initiative of the employee, there are no restrictions here. This conclusion is confirmed by the letter of Rostrud dated September 16, 2012 No. PR / 7156-6-1. An employee can dispose of his salary as he wants, if he writes an application to the accounting department of the company. At the same time, the provisions of Article 138 of the Labor Code of the Russian Federation do not apply here. That is, you can hold as much as you want and for anything.

Recovery of material damage

Let us dwell separately on the procedure for collecting and deducting material damage from wages. How much you can withhold from an employee depends on what kind of liability is provided - full or limited. With limited liability, the employee is obliged to compensate for damage in an amount not exceeding his average salary (Article 241 of the Labor Code of the Russian Federation).

At the same time, the specific procedure for its calculation for such cases is not defined. So you need to use general rules. Clause 4 of the Regulations on the peculiarities of the procedure for calculating the average wage (approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922) establishes the following procedure. It is necessary to conduct the calculation based on the salary accrued to the employee and the time actually worked by him for the previous 12 calendar months. In this case, prior to the month in which the employee caused the damage.

The total amount of salary for 12 months must be divided by the number of days (hours) worked and multiplied by the number of working days according to the employee's schedule in the month in which he caused the damage. In this case, the average earnings will depend on the month of calculation. However, you cannot simply divide the annual earnings by 12. Use this formula:

Example

At the beginning of August 2014, due to the fault of A.S. Nelyubov, an employee of the organization, the server went down. The amount of material damage was estimated at 25,200 rubles. He admitted his guilt. An agreement on full liability with an employee has not been concluded, which means that no more than the average monthly salary can be recovered from him. The accountant counted it that way.

The employee works according to the usual five-day work. Billing period- from August 1, 2013 to July 31, 2014, the employee worked 218 working days of them. Wages for these days amounted to 433,546.15 rubles. In August 2014 - 21 working days.

So the average monthly salary is:

RUB 433,546.15 : 218 days x 21 days = 41,763.62 rubles.

Thus, the organization can make deductions from the salary of the entire amount of damage caused to them - 25,200 rubles.

With full liability, the employee is obliged to reimburse the entire amount of damage (Article 242 of the Labor Code of the Russian Federation). At the same time, Article 137 of the Labor Code of the Russian Federation does not impose any restrictions on the total amount of penalties.

Full material liability of the employee occurs only in two cases. Firstly, when a shortage of valuables entrusted to him is discovered, if he caused damage due to an administrative offense, etc. In this case, it does not matter whether an agreement on full liability has been concluded with the employee or not, he must compensate the damage in full.

Secondly, in situations where an agreement on full liability has been concluded with an employee. Such an agreement can be concluded with employees whose positions are listed in Appendix 1 to the Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85. In particular, a similar contract is drawn up with cashiers, cashier-controllers, as well as with storekeepers, warehouse managers, supply specialists and forwarders.

By the way, there are no drivers in this list. Therefore, it is impossible to conclude agreements on full liability with them. However, if the driver is found guilty of an accident, that is, an administrative offense, the company will have the right to recover the entire amount of damage from him.

In some cases, liability may be provided for in an employment contract with an employee. This is allowed in relation to the deputy heads of the organization and the chief accountant (Article 243 of the Labor Code of the Russian Federation).

But the head of the organization (unlike his deputies) bears full financial responsibility, regardless of whether this is stated in his employment contract or not (Article 277 of the Labor Code of the Russian Federation).

Have a question

Is it possible to recover lost profits from an employee?

No. Deductions from wages are allowed only in respect of the amount of direct damage. That is, those losses that can be accurately calculated. It will not be possible to recover the benefit lost due to the actions of the employee (Article 238 of the Labor Code of the Russian Federation).

How to calculate the retention amount

First, deduct personal income tax from the employee's salary. And already from the resulting amount, calculate the amount of deductions from the salary. The fact is that the maximum amount of deductions must be calculated based on the money that the employee will receive in his hands.

At the same time, you have the right to withhold money, including from an advance on wages for the first half of the month. It's even better to do just that. The fact is that when calculating deductions only once at the end of the month, you may encounter the fact that the employee’s salary minus personal income tax and the advance payment already paid may not be enough to recover the entire amount.

In addition, the second part of the payment will be significantly less than the first. After all, we recall that it is not necessary to withhold personal income tax from an advance on wages.

Example

Let's continue the previous example. Nelyubov's official salary is 36,000 rubles. He does not receive standard tax deductions.

The amount of personal income tax amounted to 4680 rubles. (36,000 rubles x 13%). The maximum amount you can deduct from an employee per month is equal to:

(36,000 rubles - 4680 rubles) x 20% \u003d 6264 rubles.

Since this amount is less than the damage, the accountant withheld exactly 6264 rubles from the employee’s salary for August. The remaining 18,736 rubles. (25,000 - 6264) will be deducted from the employee's salary in the following months.

Example

In August 2014, the organization received a writ of execution to recover 16,000 rubles from an employee Karpina A.S. in repayment of outstanding loans. In addition, at the beginning of August, the employee had an unreturned and unconfirmed advance payment issued for travel expenses, in the amount of 3000 rubles.

However, if the employee compensates for the damage caused to the company, the situation is somewhat different. The Labor Code deals with deductions from wages. And this is nothing more than remuneration for labor (Article 129 of the Labor Code of the Russian Federation). This concept also includes various additional payments and allowances plus incentive payments, that is, bonuses. It turns out that from all other transfers you can withhold money only at the written request of the employee. In this case, in any case, it is not necessary to take into account the money that the employee receives on a return basis. For example, in debt under a loan agreement.

How to keep money if an employee quits

Let's start with company-initiated holdings. And in this case, you also have the right to withhold no more than 20 percent from the last salary of the employee. If the last payment is not enough, the procedure depends on the specific situation.

If we are talking about, say, an outstanding loan, then just agree now with former employee how he will repay you the remaining amount of the debt. The same applies to material damage or unreturned accountable amounts. The employee refuses to return the debt? So, you will have to go to court.

But if an employee took part of the vacation in advance, it will not be possible to recover from him the underdeducted amounts even through the court. The fact is that the judges in such cases are on the side of the employees.

Now about executive orders. If the employee in respect of whom such a document was received quits, simply send the writ of execution back to the bailiffs. At the same time, attach to it covering letter in any form, in which indicate how much you withheld from the employee.

To questions No. 808042., No. 809649 Liability. Hello, I cannot understand from your answers. If the fault of the employee is proven by the commission that he caused damage of 500 thousand, it turns out that all the same, the employer can, by his order, recover only once the amount of 25,000 rubles - the average salary of the employee, and what about the rest of the amount. How to issue a recovery of the full amount of damage, whether the consent of the employee must be issued or the employer collects only the average earnings in the amount of 25,000 rubles, once, and the rest through the court. or the employee pays the employer 25,000 rubles every month. until full repayment. Works for free. Thank you.

Answer

Working relationships are often associated with the negligent attitude of the parties to each other's property. An employee, becoming guilty of causing damage to the employer, is obliged to compensate for the losses, just as the employer is subject to compensation obligations. The recovery of material damage by the employer from the employee is a procedure that requires mandatory compliance with the norms of the Labor Code of the Russian Federation.

Grounds for recovering damages from an employee

An employee's financial liability arises if he:

• Committed illegal acts in the workplace;
• Guilty of unlawful acts;
• He committed acts, the connection of which is directly related to causing damage to the employer.

Illegal acts (Article 8 of the Labor Code of the Russian Federation) include any violations in legal behavior that caused damage to the property of the employer.

Collection is subject only in cases of direct attitude of the employee to the occurrence of damage. In accordance with Art. 239 of the Labor Code of the Russian Federation, the damage must be valid, i.e.:

• The amount of the employer's property has decreased;
• The condition of the property has changed for the worse;
• The employer will have to buy new property to replace the injured employee.

Circumstances under which recovery of damages is not possible
Art. 239 of the Labor Code of the Russian Federation defines cases in which compensation from an employee cannot be claimed:

• Force majeure circumstances (Article 401 of the Civil Code of the Russian Federation - natural disasters, fires, floods, etc.);
• Economic risks of a normal nature (lack of opportunity to perform work in a different way);
• Urgent necessity (including forced defensive actions);
• Lack of conditions of an appropriate nature, necessary for the treatment of the property of the employer.

In the presence of such circumstances, it is impossible to disciplinary or pecuniary penalty by the employer.

Penalties

According to Art. 248 of the Labor Code of the Russian Federation, the amount of compensation for damage caused by an employee should not exceed the payment for his work for a period of 1 month. Recovery of the full amount of damage, even exceeding the amount of wages, is possible under the conditions specified in the Labor Code:

• The employment contract is concluded with an indication of full liability;
• An employee deliberately damaged property;
• The property was transferred to the use of the employee on the basis of the contract, in the course of work he used the things as his own;
• The employee caused damage under the influence of narcotic, alcoholic, toxic intoxication;
• The employee committed a criminal act for which he was convicted, and the result of this act was the occurrence of damage to the property of the employer;
• The damage was caused as a result of an administrative violation on which a protocol was drawn up;
• The employee made public the trade secret of the employer;
• The employee shied away from duties, which served as the occurrence of damage.

The employer always retains the right to reduce the damages recoverable from the employee or to waive recovery.

Compensation for established losses that do not exceed the average monthly income of the employee is recovered by order of the head, regardless of the consent of the perpetrator. They compensate for the damage from the employee's salary, withholding no more than 20% from it, thus stretching the payment for several months.

The procedure for recovering damage caused by an employee

The procedure for recovering material damage from an employee is subject to the algorithm fixed by law:

1. Determining the cause of the damage. The check is carried out on the basis of Art. 247 of the Labor Code of the Russian Federation).
2. Determination of the exact amount of damage. In accordance with Art. 246 of the Labor Code of the Russian Federation, the assessment is carried out according to the value of the property on the balance sheet. If we are talking about damaged or stolen goods, compensation is carried out in the amount spent on the purchase.
3. Determination of the degree of guilt of the employee, the possibility of involvement (see above).
4. In the pre-trial solution to the problem, the necessary funds are withheld from the employee's salary. With regard to the calculation, Art. 139 of the Labor Code of the Russian Federation - deduction is carried out when calculating the average salary, not counting holidays.
5. If it is necessary to resolve the issue of compensation in court, a claim for the recovery of damage caused by an employee is filed within 1 year (Article 392 of the Labor Code of the Russian Federation).

Judicial recovery is resorted to in cases where it is impossible to withhold funds without a writ of execution:

• The amount of damage is higher than the salary of the employee;
• The management did not respond in time to the damage, within 1 month. since the moment of infliction, a decree on recovery has not been issued;
• Recovery of damages is carried out from a dismissed employee who left the organization before the appointment of payment, or who did not pay the amount of damage in full.

The video discusses the details of the liability of employees

Recovery from dismissed employees

If the damage caused was discovered after the dismissal or in the process, the dispute can only be resolved in court. Recovery largely depends on the type of employment contract (full or partial liability), as well as the presence of strong evidence of damage caused by the former employee, and not by other persons.

In the absence of evidence or non-compliance with the terms of the law (Article 244 of the Labor Code of the Russian Federation) on the categories of workers falling under the concept of full liability, the court will not accept the claim.

Useful information when recovering damages from an employee
Certain nuances applied at the conclusion of the contract, during the work process or upon detection of material damage, will help to collect funds from employees in a timely and competent manner:

• With financially responsible employees is employment contract full liability (Article 243 of the Labor Code of the Russian Federation).
• It is not possible to claim compensation from employees who are not financially responsible ( typical example workers under 18 years of age).
• You cannot demand compensation from only one employee if a group of employees is to blame for the damage (Article 245 of the Labor Code of the Russian Federation).
• Usage wrong conditions storage and operation of property through the fault of the employer. It is impossible to demand compensation for damage (Article 239 of the Labor Code of the Russian Federation).
• Finding damage is not enough. To recover funds, it is necessary not only to prove the existence of damage, but also to assess its size (Articles 246 and 247 of the Labor Code of the Russian Federation).
• You cannot demand compensation from an employee if the damage arose involuntarily (Article 239 of the Labor Code of the Russian Federation).
• Bringing to full liability an employee who has committed a crime (Article 243 of the Labor Code of the Russian Federation) in cases where the effect of a court decision has not yet entered into force is impossible.
• You cannot demand compensation that exceeds the amount of damage caused (Article 246 of the Labor Code of the Russian Federation).
• The employer should not demand the return of surplus wages without having legislative rights to do so (Article 137 of the Labor Code of the Russian Federation).
• An employer who has missed the limitation period for recovering material damage from an employee does not have the right to make claims for compensation (Article 248 of the Labor Code of the Russian Federation).