The amount of recovery from the employee. How to recover material damage to the employer from the employee. Deduction limits

Hello! Is it possible to withhold at a time the amount of material damage identified on the eve of the dismissal in the amount of average earnings? Is there a limit of no more than 20% in this case? Can withholding be made out of compensation?

The cost of damage withheld from the employee's income should not exceed his average monthly earnings (part 1 of article 248 of the Labor Code of the Russian Federation). Average monthly earnings should be calculated on the basis of average daily (hourly) earnings and working days (hours) during the month in which the property damage was discovered. You can deduct no more than 20% from the monthly salary of an employee. If the deduction is made from the last salary to be issued upon the employee's termination, the employer has the right to withhold the entire amount. The rules established by Part 1 of Article 138 of the Labor Code of the Russian Federation do not apply in this case. Since the legislation does not directly stipulate that in the situation under consideration it is possible not to comply with the restriction established by Part 1 of Art. 138 of the Labor Code of the Russian Federation, you must take a written consent from the employee to withhold. This will avoid disputes with him. If the employee does not agree to the withholding, he can voluntarily deposit the amount due from him to the cashier of the organization. In the event that the employee refused to voluntarily compensate for the damage or did not agree with his assessment, then you will have to go to court to pay the loss.

The rationale for this position is given below in the materials of the "Glavbukh Systems" vip-version

1. Situation: How to withhold debt from an employee who quits. Holds are initiated by the organization

Withhold the entire amount owed from the last salary to be paid. Even if it exceeds 20 percent of the salary this month. Rules established by part 1 of Article 138 Labor Code RF, in this case do not apply. Based on the systemic interpretation of Articles 137, 138 and 140 of the Labor Code of the Russian Federation, the restriction on withholding in the amount of 20 percent of the due salary is valid only for monthly salary payments. Upon dismissal of an employee, you can collect the entire amount of debt. This point of view is adhered to by specialists from the Ministry of Health and Social Development of Russia in their private explanations. *

The chief accountant advises: since the legislation does not explicitly state that in the situation under consideration it is possible not to comply with the restriction established by Part 1 of Article 138 of the Labor Code of the Russian Federation, obtain the employee's written consent to withhold. This will avoid disputes with him. *

It should be noted that in the event of a lawsuit with an employee, the court can side with the latter, obliging the organization to comply with the established limit - 20 percent of the salary. For example, the Supreme Court of the Republic of Buryatia came to the conclusion that Article 138 of the Labor Code of the Russian Federation limits the amount of deductions for each payment of wages in order to provide the employee with an amount sufficient to satisfy his basic living needs. It does not matter if the labor Relations, or the employee is fired. Consequently, when an employee is dismissed, no more than 20 percent of the salary can be withheld from him (see the cassation definition The Supreme Court Republic of Buryatia dated February 27, 2012 No. 33-531).

Thus, with the written consent of the leaving employee to withhold the entire amount of his debt without restrictions, the organization will protect itself from litigation with him.

N.Z. Kovyazina

Withholding procedure

Keep the amount of material damage from the employee's income in this order.

First, calculate the amount of losses, which includes:
- the amount of material damage;
- expenses for the acquisition or restoration of property (for example, repairs);
- expenses for compensation for damage caused by an employee to other citizens or organizations (for example, damage from an accident in the part not covered by insurance compensation).

The composition of the losses that the employee who caused the organization material damage is obliged to compensate is specified in article 238 of the Labor Code of the Russian Federation.

Creation of a special commission

To confirm the amount of material damage in the organization, you can create a special commission (Article 247 of the Labor Code of the Russian Federation). Its composition is approved by the head of the organization. It is advisable to create a commission when establishing the facts of theft or abuse, as well as damage to values.

In commercial organizations

Indicate the identified shortage (cost of losses) in the collation sheet.

Compile collation statements:
- either according to the forms approved by clause 1.2 of the Resolution of the State Statistics Committee of Russia dated August 18, 1998 No. 88 (forms No. INV-18 or No. INV-19);
- or according to the forms developed by the organization independently and approved by the head of the organization.

If the amount of material damage can be established on the basis of documents received from counterparties, the commission may not be created. For example, in case of an accident caused by an employee, the amount of material damage can be established according to documents received from insurance and repair companies.

Damage assessment

Determine the amount of damage at market prices on the day the damage was caused (the employee committed an accident, discovered a shortage, etc.). At the same time, the damage cannot be assessed below the value of the property according to accounting data (including depreciation). When determining damage, do not take into account actual losses within the limits natural loss... This procedure is established by Article 246 of the Labor Code of the Russian Federation.

Employee's written explanations

After determining the amount of damage, take from the employee a written explanation of the reasons why it occurred. If the employee refuses to do this, then draw up an act. This procedure is established by part 2 of article 247 of the Labor Code of the Russian Federation.

Withholding order

To recover the amount of damage from the guilty employee, the head of the organization must issue a retention order. The order must be issued no later than a month after the commission determines the amount of damage.

Calculation of the amount of damage

Based on the order, withhold the cost of damage from the employee's income that does not exceed his average monthly earnings. Taking into account this rule, it is necessary to recover damage both in those cases when the employee bears limited financial liability, and in those cases when financial liability occurs in the full amount of damage.

The amount of damage in excess of the average monthly salary can be obtained from the employee only through the court (if he is fully financially liable). At the same time, the employee can voluntarily compensate the amount of damage. In this case, by agreement of the parties, compensation for damage with payment by installments is allowed.

This procedure is established by article 248 of the Labor Code of the Russian Federation.

Situation: how to determine the average monthly earnings when calculating the amount of material damage that can be deducted from the employee's income

The legislation does not provide for a methodology for calculating average monthly earnings. For all cases of maintaining the average earnings, a unified procedure for its calculation is established on the basis of the average daily (hourly) earnings (Article 139 of the Labor Code of the Russian Federation). Therefore, when calculating the amount of material damage, it is necessary to use it. The various names used in determining the amount of payments cannot serve as a basis for using any other order.

The cost of damage withheld from the employee's income should not exceed his average monthly earnings (part 1 of article 248 of the Labor Code of the Russian Federation). In this case, the average monthly earnings should be calculated on the basis of the average daily (hourly) earnings and working days (hours) during the month in which the material damage was discovered (Article 139 of the Labor Code of the Russian Federation, paragraphs 9 and 13 of the Regulation approved by the Government Resolution RF dated December 24, 2007 No. 922).

You can deduct no more than 20 percent from the employee's monthly salary. Therefore, recover the amount of material damage in the amount of average salarywill most likely have to happen within a few months. *

An example of calculating material damage to be recovered from an employee. The agreement on full liability with the employee has not been concluded

In January, through the fault of the employee A.S. Kondratyev, the printer is out of order. The employee has limited liability.

The amount of material damage is estimated at 12,000 rubles.

The average daily earnings of Kondratyev is 900 rubles per day. There are 15 working days in January.

Average monthly earnings of Kondratyev in January amounted to 13,500 rubles. (900 rubles / day? 15 days).

Since the average monthly salary is more than the amount of damage, 12,000 rubles are withheld from Kondratyev by order of the manager. Moreover, from each of his salaries - no more than 20 percent.

An example of calculating material damage to be recovered from an employee. An agreement on full liability with the employee is concluded

The organization revealed a shortage of money at the cash desk in the amount of 52,000 rubles. With the cashier A.V. Dezhneva signed an agreement on full liability. She admitted her guilt.

Dezhneva's average earnings in the month when the shortage was discovered is 10,000 rubles. Since the average earnings are less than the amount of damage, 10,000 rubles are withheld by the order of the manager from Dezhneva. Moreover, from each of her salaries - no more than 20 percent.

For five months, the accountant withheld 2,000 rubles from Dezhneva's salary. Dezhneva refused to compensate the rest of the damage and quit her job. The organization went to court to recover the funds. *

An example of calculating the salary of an employee, taking into account deductions within the limits of his average earnings

On January 12, 2013, through the fault of employee A.S. Kondratyev, the printer is out of order. An agreement on full liability has not been concluded with the employee.

The amount of material damage is estimated at 10,000 rubles.

During the period from January to December 2012, Kondratyev worked 250 days. During this period, he was credited with 200,000 rubles.

In January 2013, 17 working days.

The average salary of Kondratyev for the month in which the material damage was caused (January 2013) is:
RUB 200,000 : 250 days ? 17 days \u003d RUB 13 600

Since the amount of material damage does not exceed the average salary of Kondratyev, all 10,000 rubles can be withheld from his income.

For January 2013, Kondratyev received a salary in the amount of 15,000 rubles. Kondratyev is provided with a standard personal income tax deduction of 400 rubles. (Kondratyev has no children).

The amount of personal income tax for January 2013 is:
(15,000 rubles - 400 rubles)? 13% \u003d RUB 1898

An employee's income after tax is:
RUB 15,000 - 1898 rubles. \u003d RUB 13,102

The maximum amount of deductions from an employee's income per month is:
RUB 13,102 ? 20% \u003d 2620 rubles.

The amount of damage caused by the employee is more than this amount. However, in January, the accountant withheld only 2620 rubles from Kondratyev's salary. The remaining 7380 rubles. (10,000 rubles - 2620 rubles) the organization will withhold from the employee's salary in the following months.

Deductions from compensation payments

Situation: is it possible to withhold the amount of material damage from compensation payments to an employee for the use of his personal property and from per diem

Yes, you can if the employee agrees to the hold.

At the initiative of the organization, it is impossible to withhold the amount of material damage from such payments. This conclusion can be made on the basis of Article 137 of the Labor Code of the Russian Federation. It says that the deductions initiated by the organization should be made from the salary. Compensation payments (daily allowance, compensation for the use of personal property), guaranteed by the Labor Code of the Russian Federation (Articles 168 and 188 of the Labor Code of the Russian Federation), do not apply to wages (part 1 of Article 129 of the Labor Code of the Russian Federation). At the same time, the labor legislation does not establish any restrictions on deductions, which the organization carries out not on its own initiative, but at the request of the employee. Therefore, in the presence of such a statement, the amount of material damage can be withheld from any payments.

If the employee does not agree to the hold, proceed as follows. Offer him to voluntarily reimburse the amount of material damage in excess of his average monthly earnings. He can:
- deposit the required amount to the cashier;
- with the consent of the organization, provide it with property equivalent to the damaged one (fix the damaged property);
- compensate for damage with payment in installments.

This procedure is provided for in Article 248 of the Labor Code of the Russian Federation.

If the employee refused to voluntarily compensate for the damage or did not agree with his assessment, then you will have to go to court to pay the loss. You will have to go to court even if the order of retention was issued later than a month after the determination of the amount of damage (Article 248 of the Labor Code of the Russian Federation). *

At the same time, the organization has the right to completely or partially refuse to recover damages from an employee (Article 240 of the Labor Code of the Russian Federation).

Waiver of withholding damage

The employer has the right to refuse withholding damage from the employee. Waiver of collection can be complete or partial, taking into account the specific circumstances in which the damage was caused. This right is provided by Article 240 of the Labor Code of the Russian Federation.

Refusal to collect damages is admissible regardless of the following factors:
- the type of responsibility that the employee bears (limited or full financial liability);
- the form of ownership of the organization.

This is stated in paragraph 6 of the resolution of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 No. 52.

Execute the release of the employee from compensation for material damage by order.

N.Z. Kovyazina

Deputy Director of the Department of Wages, Labor Protection and social partnership Ministry of Health and Social Development of Russia

Unfortunately, no employer is insured against the possibility of damage to property by an employee. Sometimes this is due to the negligent attitude of the employee to his professional duties. It is completely natural for the employer to want to compensate for the damage caused by the employee. But can you always count on it? What is the correct way to recover material damage from an employee? What mistakes are most often made by the employer while doing this?

When does responsibility come?

The onset of material liability for causing damage to the property of the employer is provided for by the Labor Code of the Russian Federation (Article 283). Liability can be characterized by two features:

one of its sides should be individualwho works for the employer at the time of damage to property;
the amount of liability depends on the extent of the damage and the nature of the violation that led to damage to property.

Material liability arises provided that there is:

direct damage;
illegal behavior, negligence, improper performance their professional duties;
the fault of the employee who caused the damage.

If the damage to the employer's property is caused by force majeure, defense, extreme necessity, material liability does not occur. Also, the employee is not responsible for property when the employer has not provided the necessary conditions for its safety.

What is financial responsibility?

The essence of material responsibility is the obligation of the employee to compensate the material loss caused by him. In this case, only the damaged property is meant, the loss of profit is not taken into account.

The definition of material damage includes an actual decrease in the quantity or deterioration in the quality of the employer's property. For example, lack of money, damaged equipment, raw materials, materials, costs of paying a fine in relation to the employer, who is appointed through the fault of the employee.

What is the employee's responsibility?

The main types of material liability of employees are presented in the table:

Type of material responsibility

What is

When arises

Full

Damage is fully compensated

1. If for the position occupied by the employee, this is provided for by law, for example, the director of the enterprise;

3. when intent is present and proven in causing property damage;

4. in case of alcoholic, toxic, drug intoxication of an employee at work, resulting in damage;

5. the unlawfulness of the employee's actions, which led to the damage, has been proven;

6.there is a disclosure of a trade secret by an employee

Partial

Only part of the loss will be refunded. The amount of compensation does not exceed the average monthly earnings

In other cases

Full liability agreement - a guarantee or an employer's attempt to insure their property?

It is widespread for the employer to conclude a full liability agreement with each employed person. At the same time, he believes that such an action reliably insures him in case of property damage by the employee. But it's not always the case. Such an agreement will not become a "lifesaver" for the employer in any case.

For example, the employer tried to obtain compensation for damage caused by the fault of the head of the department in the performance of professional duties. However, the court denied this, despite the existence of an agreement on full liability between the employee and the organization. The reason was that the official duties of this employee did not directly include ensuring the safety of the company's property.

How to recover the damage caused?

The procedure for collecting material damage to the employer consists of several stages:

inventory of funds;
creation of a commission to conduct an official investigation and establish the reasons that provoked the damage;
receiving from the employee a written explanation of the reasons for the damage. If he refuses, then the refusal should be recorded in the act;
calculation of the amount of damage caused in market valuation on the day of its occurrence. At the same time, the value of lost or damaged property should not be less than that recorded in the accounting records;
differentiation of the degree of guilt and responsibility between employees if the loss was created through the fault of several persons.

The employer has the opportunity to withhold the loss from the culprit not only through the court, but also in the pre-trial order.

Without going to court, the deficit is retained that does not exceed the employee's average monthly earnings. An order for this must be created no later than a month after the incident occurred and the losses were calculated. If an employee objects to the employer's actions, then he can go to court.

The parties may agree to cover the damage in installments. In this case, you should draw up a schedule of payments and indicate their specific dates. If the employee has undertaken an obligation to compensate for the damage caused, but quit without doing so, then the employer can go to court with this. Also, only in court can the issue of recovering a loss from an employee in an amount exceeding his average earnings be resolved if he refuses to voluntarily perform this.

Reflection of damage on accounts: transactions

The value of the property established during the inventory must be shown on the debit of account 94. See also the article: → “”. This amount is recorded in the accounts in this way:

Correspondence of invoices		The content of the business transaction
Debit	Credit	The content of the business transaction
73/2	94	Assignment of the shortage to the culprit
50, 51, 70	73/2	The employee deposited money into the cashier's office or the company's account, or the missing amount was withheld from his salary
73/2	98/4	The difference between the market and accounting estimates of the loss, if any, is shown
98/4	91/1	The difference between the market and balance sheet estimates is written off as the damage is repaid by the culprit. If the loss is compensated in parts, then the difference is written off in proportion to the amount of repayment
94	98	Discovered in reporting period shortfall related to prior periods and included in deferred income
98	91	Deferred income refers to the reporting period when the culprit repays the loss.

The deficiency cannot be withheld from an employee if the employer does not have documentary evidence of his guilt.

The most common mistakes employers make when claiming damages

When trying to get compensation for material damage from an employee, the employer often makes the following mistakes:

an attempt to receive compensation for the incurred loss in full. Full compensation for damage is allowed only in cases strictly defined by law (Article 241 of the Labor Code). Also, the head and chief Accountant enterprises;
concluding an agreement with each employee on full liability in the hope of the possibility of recovering the entire loss. Even if such an agreement was concluded, but there was legal grounds for this (the position of the employee is not on the special list, or his activities are not related to material assets), then the court will invalidate it;
an attempt to recover from the employee not only the damage caused, but also the lost profit. The employee is obliged to reimburse only direct loss;
the employer's delusion is the withholding of the amount of the administrative penalty imposed on him through the fault of the employee. For example, the seller did not make sure that expired food products were removed from the shelves in a timely manner. As a result of the check, an administrative fine was imposed on the store, which the employer paid in the amount of 50,000 rubles. After that, the employer tried to withhold the amount of the fine from the seller who committed the violation, whose earnings are 22,000 rubles. The seller refused to compensate for the damage in this amount, and the employer went to court. The court, taking into account all the circumstances, dismissed the claim to the employer. In this case, he can receive compensation for the incurred loss only partially in an amount not exceeding the employee's average wage.

Answers to topical questions about the recovery of material damage from an employee

Question number 1. Is it possible to repay the material damage in installments?

Yes, there is a possibility of paying off the damage caused to the employer in parts. This is permissible subject to the mutual consent of the parties to the employment contract. To do this, it is necessary to draw up a written obligation for the employee to pay off the debt in parts and indicate a payment schedule. On this commitment, the head of the enterprise must put a resolution that he does not object. It is possible to issue an installment plan as a separate order or order, which will indicate the settlement schedule.

Question number 2. Does the employer have to withhold the damage caused by the employee?

Recovery of material damage is not the responsibility of the employer. Rather, it is his right. The employer has the right to refuse this procedure if there are circumstances specified in Article 240 of the Labor Code of the Russian Federation. These include the difficult financial situation of the employee, a small amount of damage caused, and minor dependent children. The employer may not collect material damage either initially or refuse to collect at the stage of litigation. In this case, you need to issue a waiver of claims in writing.

In most cases, the employer can recover only that part of the damage caused, which does not exceed the employee's average salary. The list of cases when full financial responsibility occurs is established by law and the employer cannot expand it in any way. Regulatory acts no specific procedure for calculating average earnings has been established for the purpose of reimbursing the employee's loss. When defining it, you can use general rules calculation based on the duration of the billing period of 12 months.

Question number 4. How much, in accordance with the law, can the employer withhold from the culprit for the damage caused?

If the case does not fall under the statutory option of fully repaying the cost of the loss, then the most that the employer can count on is the amount of the employee's average salary. You cannot deduct more than a fifth of your earnings per month. If the employer believes that he has the right to demand the repayment of the incurred loss in full, and the employee does not want to do this, then such a disagreement must be resolved in court.

Question number 5. What assessment takes into account the amount of damage caused by the employee?

Answer. It is imperative that the cost of the loss caused by the employee must be calculated based on market prices. But if the estimate of the missing funds in the accounting of the enterprise exceeds the market value, then the large value is taken as the basis for determining the amount of compensation.

The determination of the amount of damage is determined by the employer in two ways - in general and special okay. So, according to Art. 246 of the Labor Code of the Russian Federation, the amount of compensation must correspond to current losses.

Important! Cash payments are made by the offending employee, regardless of whether he is brought to administrative, disciplinary, criminal liability for those actions (or their absence) that caused damage to the employer.

Features of the collection procedure

After the employer has recorded the fact of the damage caused, he can partially or completely refuse material compensation. Such a measure is appropriate in two cases: if the losses are insignificant or the guilty employee has a positive reputation in professional circles (the property was "damaged" by negligence).

Important! The employer's decision to recover compensation in the established amount must be documented (in the form of an order). Once the amount of damage is established, the employer issues a withholding order money from the salary of a subordinate. This document must be issued no later than 30 days after the establishment of the fact of damage and its reflection in the inventory act.

The amount that will be collected from the employee should not exceed his monthly salary (established on the basis of the actual salary for 12 months).

The deduction of funds to cover material damage is not made from:

Business travelers;
Payouts that cover material costs to transfer an employee to another location;
Funds for the depreciation of inventory;
Maternity;
Maternity benefits.

If the material damage to the employer was caused by a group of persons, then the amount of compensation paid by each of them is determined by the degree of guilt and the type of material liability (it can be full or limited).

Important! If the employer failed to voluntarily agree on the amount of payments with the brigade, the amount of compensation is established in court.

In order to accurately calculate the amount of compensation required, you should determine the market price of the damaged property on the day it was discovered. It is noteworthy that this figure should not be lower than that indicated in the financial statements minus the degree of wear and tear of material assets.

The determination of the amount of compensation for damage to the employer in the general procedure is carried out in 2 ways:

Based on actual losses, taking into account the market value of material goods for the current day;
Based on the data of the financial statements, focusing on the degree of deterioration of the property.

The latter calculation option is advisable to use when the market price of a product is lower than its purchase value.

Important! The general procedure for the recovery of material damage caused allows the employer to withhold an amount that does not exceed the average monthly salary of the guilty employee. The rest of the compensation must be covered by the enterprise's funds, or insurance premiums (in case the damaged property was insured).

Determination of the amount of compensation in a special order is carried out in the following situations:

material damage was caused to the employer by deliberate damage to property, as a result of theft or shortage;
the actual amount of damage exceeds the nominal value of the “affected” goods.

In accordance with the labor legislation of the Russian Federation, the employer can withhold from the employee's salary no more than 20%, and if the damage was caused as a result of criminal activity - up to 70%.

Compensation mechanisms

The employee can voluntarily compensate the employer for the damage caused. In this case, a document (agreement) is drawn up, in which the specific terms of payments are strictly regulated.

The amount and form of compensation for damage is determined by both parties - it can be money or other property that is equivalent to lost (damaged).

Compensation can be paid by the employee gradually (an agreement on an installment plan is concluded), the guilty person undertakes to fully cover the damage by a certain time.

Important! If the employee has not paid off the debt within the established timeframe, the employer can sue the unpaid funds from him.

It should be remembered that with a voluntary agreement, the employee may cover compensation, the amount of which does not exceed his average monthly salary. When a large amount is fixed in the agreement, the employee has the right to refuse to pay the remainder of the debt.

Compensation for damage is carried out not only on a voluntary basis, but also out of court - the employer withholds a set amount from the salary of the offending employee.

Out-of-court recovery of compensation is carried out in compliance with several important conditions:

the total amount of damage coverage does not exceed the offender's monthly earnings;
no more than 30 days have passed since the property was damaged (lost);
labor relations between both parties continue throughout the entire period of compensation.

In court, damage is compensated in the following situations:

the amount of money required by the employer exceeds the monthly salary of the offending employee;
more than a month has passed since the discovery of the fact of damage (loss) of property.

When drawing up (submitting) statement of claim the victim must prove the fact of damage to property, indicate the amount of compensation and determine the degree of guilt of each employee (if we are talking about collective labor liability).

Rules for filing a statement of claim

The document is drawn up in free form manually or using technical means. The form must contain:

Name of the court;
Address, full name or name (in the case when the claim is filed on behalf of a legal entity) of the plaintiff, his actual address, signature;
Full name, address of the defendant;
The subject of the claim (the fact of damage caused, proof of the defendant's guilt);
The amount of compensation required (the cost of the claim);
Information about pre-trial attempts to resolve the situation (if any).

In this case, compensation can only be claimed in court. In accordance with Article 392 of the Labor Code of the Russian Federation, the employer has the legal right to go to court within 12 months from the date of material damage. The date of its discovery is the one on which the inventory was carried out, or the one when the victim discovered the damage caused.

If the employer and his former employee previously entered into a voluntary agreement on the payment of compensation, but at a certain moment the guilty person did not make another payment, and, moreover, subsequently resigned, it is the date of the first missed payment that will be the starting point of the one-year period released for filing a claim.

How to determine the amount of damage caused by a dismissed employee: the amount of payments already made is deducted from the actual amount of compensation.

Border payment rates

The legislation provides for the employee's partial or full liability for damage caused to the employer. The latter is relevant only when there is a clause in the employment contract, according to which the employee committed illegal actions that entailed material damage. According to Art. 243 Labor Code Russian Federation, these include the following situations:

deliberate infliction of harm;
the presence of a shortage of values \u200b\u200bthat were entrusted to the employee in accordance with the agreement;
criminal actions of an employee (established in court);
the damage was the result of the act of the guilty person who is drunk;
cases of disclosure confidential informationconcerning economic activity an enterprise (including one that is protected at the legislative level);
losses caused due to an administrative violation (the fact of such violation was recorded by the relevant state authority);
the damage was done outside of business hours.

If the court decides that the damage is actually a criminal act, the guilty person is not only financially liable, but also held criminally liable for the deed.

Many "victims" of negligence or deliberate sabotage of employees, without their knowledge, withhold amounts in excess of the monthly income.

Some employers issue an order to withhold funds to pay off compensation later than a month after the discovery of the fact of damage. Both in the first and in the second situation, you can demand payment only in court.

Other errors related to material penalties due to compensation for damage:

The actual amount of damage caused by the employee is not established;
Violation of the rules for conducting an inventory;
There is no written explanation of the employee regarding the situation.

Upon infliction of damage, the employer must demand written explanations from the guilty person; if the guilty employee refuses to testify, this must also be documented.

When an employer cannot claim compensation:

Extreme necessity, defense, force majeure, resulting in damage to property;
A dismissive attitude towards the exploitation and storage of material goods by the employer himself;
Absence of an agreement on the material liability of the guilty employee (or drawing up a paper without convincing grounds).

If an agreement on full material liability was not initially drawn up with an employee who deals with values, then he will compensate for the damage caused in the general manner - in an amount not exceeding his monthly salary.

In addition, the employer does not have the legal right to conclude such contracts with persons employed in positions not included in the list of the Resolution of the Ministry of Labor No. 85.

According to Article 239 of the Labor Code of the Russian Federation, an employee can refuse to compensate for material damage in the event that a specially created commission found:

The existence of a natural economic risk in relation to a specific enterprise;
The presence of force majeure circumstances;
The absence of such working conditions that would allow the materially responsible person to safely exploit the entrusted values \u200b\u200band ensure the safety of those;
Signs of self-defense or extreme necessity, resulting in damage to property.

It is noteworthy that upon the assumption of intentional harm, shortage, loss of property or the fact of theft at the enterprise, special rules calculation of losses. For example, in the event of the loss of psychotropic or narcotic drugs, the delinquent employee is obliged to compensate direct losses in 100 times their original value.

Important! The full financial liability of an employee for the fact of causing damage can be established exclusively in court (Article 243 of the Labor Code of the Russian Federation).

So, as a result of the damage caused by the guilty employee, the employer may demand payment of compensation of the established amount. Repayment of payments is carried out on a voluntary (by agreement), out of court, judicial procedure. The total amount that the employee who caused the damage undertakes to repay should not exceed the amount of his monthly income (it can be paid, by agreement with the employer, in installments).

If there are controversial issues related to the material damage caused, a special commission may be invited to the enterprise (conducts an investigation, sets the amount of compensation).

Article 15 of the Civil Code of the Russian Federation states that to obtain monetary compensation every citizen of Russia or another state, as well as any legal entity, has the right for material damage caused.

The concept of "damage" combines two components:

real loss - loss or partial damage to personal property; loss of profit - the inability to receive income through the fault of the defendant.

The amount of compensation can be full or partial. It depends on a number of factors.

So, partial compensation for losses takes place if the damage was committed by minors or incapacitated persons. Another case of partial cash payment is the presence of an insurance policy in favor of the injured person.

What is the procedure for compensation for material damage?

Compensation for property damage is the obligation of the party that, through its actions (or inaction), caused a loss to the injured party.

The rules and procedure for the payment of compensation are established by the legislation of the Russian Federation.

Reimbursement of the damage caused is possible both by mutual agreement and by filing a claim-application to the court.

There are general rules of jurisdiction:

if the cost of the claim is less than 50,000 rubles, then the claim is filed with the magistrate's court; if the claim value is more than 50,000 rubles, then the district court.

Procedure before applying on compensation for material damage:

it is necessary to provide evidence of the fact of harm; it is necessary to prove the existence of a causal relationship between the action (or inaction) of the defendant and the negative consequences.

This procedure is valid for those cases when material losses were incurred as a result of the actions of an individual.

If the defendant is a legal entity or an entrepreneur, then only proof of the fact of damage is sufficient.

The next step is drawing up a statement of claim, which will become the basis for considering the case for the appointment of compensation.

The application is sent to a court of general jurisdiction, if the victim is an individual, and to an arbitration court, when resolving corporate disputes between legal entities or entrepreneurs.

General procedure for compensation for losses

If between the parties involved in causing property damage, relations regulated by the agreement were established, then the payment of losses should occur based on certain clauses of the relevant agreement.

Read here what is labor contract and what is its main difference from an employment contract.

A special case of contractual relations is the relationship between the employee and the employer. These relations are regulated by the Labor Code.

Reimbursement of losses by the employee occurs after the discovery of the damage caused. The employer must conduct a check to clarify the circumstances of the employee's involvement in the fact of damage.

Order compensation provides for the possibility of voluntary repayment of the loss in a lump sum or in installments.

If the employee refuses to voluntarily pay compensation, the employer has the right to carry out collection through judicial procedure... The limitation period in this case is 1 year from the date of discovery of the damage.

It happens that material damage is caused to the employee by the employer. In this case, the employer is fully liable for compensation for material damage to the employee. In case of violation of the deadline for the payment of cash benefits (salaries, bonuses, etc.), the amount is calculated taking into account the interest for the delay period.

Reimbursement of claims within the framework of a non-contractual relationship is regulated either by agreement of the parties or in court.

A court decision can only be made on the basis of the victim's statement of claim. The claim is sent to the court by mail or independently delivered to the reception of the court.

The period for compensation for material damage is established by the legislation of the Russian Federation and is 3 years from the onset of the event that resulted in the damage.

How to write a statement correctly?

When writing a statement of claim, it is worth remembering that all claims related to damages must be substantiated and confirmed.

The application must be in writing and comply with the requirements specified in article 131 of the Civil Code of the Russian Federation.

The application must contain the following data:

the official name of the court to which the document is submitted; surname, name, patronymic of the plaintiff (in full), address of residence. If the applicant carries out all actions through a trusted person, then all the details of the intermediary must be indicated; all personal information about the defendant, if this is an individual. Location of the organization, if claims are made to a legal entity; a description of the nature of the damage caused, the exact date, place and circumstances that entailed material damage; evidence of the circumstances on the basis of which, in the plaintiff's opinion, the loss was caused; amount of compensation for material damage; description of actions the applicant for attempts at out-of-court settlement of the conflict; a list of documents attached to the application; handwritten signature of the plaintiff or his authorized representative Article 132 of the Civil Code of the Russian Federation provides for the following documents to be attached to the claim: copies of the statement of claim in an amount equal to the number of defendants; a receipt confirming the payment of the state duty; documents evidencing the infliction of damage; calculations for compensation for material damage (original and copies by the number of defendants); power of attorney to represent the interests of the plaintiff in case the plaintiff does not represent your claim personally.

The procedure for calculating and determining the amount of material losses

The most common types of damage caused:

gulf of living space; road accident; fire in an apartment (house); poor-quality performance of works (services); lack of alimony payments and urgent payments.

Damage calculation depends from specific circumstances and claims made by the plaintiff:

the cost of a claim to recover the amount of money borrowed is this amount plus additional charges (interest, penalties, etc.), if it was prescribed in the loan agreement; when assessing the damage caused to real estate, a certificate of inventory value is required object. Compensation is calculated on the basis of this amount; when determining the price of a claim for payments (alimony, urgent payments, etc.), material damage is calculated individually. For the recovery of alimony, the damage is calculated for 1 year. For urgent payments - for the aggregate of expected payments, but not more than for 3 years.

If the plaintiff is mistaken in the amount of the sum presented for payment, then the judge has the right to determine this amount independently.

Terms of compensation

The limitation period for compensation for material losses is 3 years from the moment of the occurrence of the event that caused the damage.

This rule does not apply in case of harm to human life and health.

In case of pre-trial settlement of material conflicts between the employee and the employer, the timing of the payment of compensation is agreed upon by mutual agreement of both parties.

This can be a one-time compensation or payment by installments. In any case, compiled supplementary agreement, which prescribes the date of debt repayment.

If there is a judicial resolution of the conflict to compensate for the damage caused, then the timing of payments will be determined in the court decision. Control over its implementation is carried out by bailiffs.

Features of compensation for damage caused by a crime

The main feature is the fact that there is no need to separate a claim for compensation for material damage caused by a crime in a separate case. It can be submitted as part of a criminal procedure.

The limitation period begins not from the moment the crime was committed, but from the moment the harm caused by the victims is discovered, and lasts 3 years.

The perpetrator of a crime and of causing damage pays compensation from his earnings for the time spent in prison or colony.

The amount payable, but not yet paid, is indexed depending on the change in the value of the subsistence minimum in the country.

Increasing the legal literacy of the population in the general context, and in matters of recovery of compensation for material damage, in particular, leads to a civilized solution to any conflicts that arise between individuals and legal entities.

The fact is that the very fact of causing damage is not a reason for terminating an employment contract at the initiative of the employer; for this, you also need a decision of the competent authority (see, for example, sub. “g” of clause 6 of article 81 of the Labor Code of the Russian Federation). At the same time, the employee who caused the damage has the right to quit according to on their own... Then the employer goes to court for damages. If the employer fails to comply with the conditions for recovery of damage (namely, if the monthly period during which a retention order can be made, or an amount exceeding the average monthly earnings is collected), the employee has the right to go to court, and, as follows from Part 2 Art. 248 of the Labor Code of the Russian Federation, bypassing the labor dispute commission. Note! Average earnings are calculated according to the rules of Art. 139 of the Labor Code of the Russian Federation as amended Federal law dated 30.06.06 No. 90-FZ.

How to properly make deductions from wages

Dismissal upon change of ownership of the organization's property or reorganization "and" Everything you wanted to know about redundancies "The list of grounds allowing an employer to make deductions on his own initiative is closed and not subject to broad interpretation. For example, it is impossible to deduct from the employee's salary the amounts overpaid to him due to an incorrect interpretation of regulatory legal acts.

Although there are grounds for withholding, the employer should obtain consent from the employee. If the latter is against, even on the condition that the grounds are indicated in Art.

137

Of the Labor Code of the Russian Federation, it is illegal to make a deduction. This question the employer will have to decide in court. An exception, when the employee's consent is not required, is the deduction of amounts for unworked vacation days.

Is it possible to deduct the amount of damage from the salary?

Info

Therefore, before proceeding with the collection, the head of the organization must create a special commission of investigation and establish the fact of the violation, the employee's involvement in it and the amount of damage caused to the enterprise. According to Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for direct damage caused.

Attention

You can not collect from wages only the amount of lost profits. Read also how to withhold the shortfall from the salary.

The amount of the penalty The specific amount of deductions from staff salaries is established by Art. 138 of the Labor Code of the Russian Federation. The collection cannot exceed 20% per month. The amount of compensation for damage caused to the enterprise must be withheld from the accrued wages minus income tax of 13%.
See also: Examples First example: The employee's monthly salary is 45 thousand. The damage amounted to 30 thousand.

If the employee remains owed: how to keep

Code of Administrative Offenses of the Russian Federation):

from 1,000 to 5,000 rubles. - fine for officials and individual entrepreneurs;

from 30,000 to 50,000 rubles. - fine for organizations.

Similarly, the employer cannot, on its own initiative, withhold from the employee's salary amounts to repay the loan issued to him. Loan repayment by deduction from wages is possible only at the request of the employee himself.
Also, the employee can "ask" the employer in writing to withhold other amounts from wages on a monthly basis: to repay a bank loan, to voluntarily support children, etc. In this case, the bank's commission and other expenses associated with the transfer of the indicated amounts to the recipient should also be paid at the expense of the employee.
! Please note: Deductions from wages, which the employer makes at the written request of the employee, are not “deductions” within the meaning of Art.

Deductions from wages

The foundation documents oblige the employer to first create a commission to investigate and establish the amount of material damage. A written explanation of the incident must be requested from the employee.
If he refuses to give them, an appropriate act must be drawn up. At the end of the investigation, it is recommended to create an act with the amounts of damage caused to the enterprise. Art. 248 of the Labor Code of the Russian Federation states that the employer must issue an order (order) for collection. It is he who will act as the documentary basis for the deduction from the salary. If the employee does not agree to pay the debt, and the amount of damage is more than his average monthly earnings, the debt can only be collected through the court. Then the documentary basis will be a court decision.

Under such circumstances, no additional retention order is issued.

Chapter 11 withholding from wages

Note that the provision of Art. 137 of the Labor Code of the Russian Federation is interpreted by some experts as a requirement of the employer to inform the employee that retention will be made for such and such a reason and in such and such an amount (i.e., in fact, ask his consent). Absence in art. 137 of the Labor Code of the Russian Federation of instructions on the need to obtain the written consent of the employee suggests that the employee is considered not to dispute the retention until he notifies the employer. recovery of damage under certain conditions X In the following cases, although deductions are made, but with the observance of a monthly period and provided that the employee does not dispute their basis and amount: 1) to pay off an unspent and timely non-refunded advance payment issued in connection with a business trip or transfer for another job in another locality, as well as in other cases.

Four rules for deductions from wages

Voluntary compensation of damage by the employee - full or partial - is possible only with the consent of the employer. The employee either, with the consent of the employer, fixes the damaged property, or transfers an equivalent amount, or pays an adequate amount of money to the employer's cash desk.

Article 248 of the Labor Code of the Russian Federation allows compensation for damage by installments, but only by agreement with the employer. In this case, the employee undertakes in writing to make the agreed amount of money at a certain frequency, repaying the debt by the date specified by the parties.

If an employee does not fulfill his obligation or is fired, the debt is collected in court. The procedure for recovering damage from the guilty employee by order of the employer is provided for in Art. 248 of the Labor Code of the Russian Federation. Withholding from the employee's salary certain amounts, the employer must meet certain conditions.
In this case, the agreement must be notarized, and on its basis the employer is obliged to make deductions in the amount stipulated by the provisions of the agreement, but not exceeding the maximum limit of 70% of the employee's salary.

Performance list. If enforcement proceedings are in force against the employee, then the enforcement service may impose a penalty, including on the employee's income.
In this case, the writ of execution is a sufficient basis for deductions from wages.
Decision of the Labor Dispute Commission. In the event of a labor dispute with the employer, the final decision on holding deductions from the employee's salary, for example, to compensate for damage, may be made by the labor dispute committee.
Moreover, such a decision can subsequently be challenged in court.
Court decision or court order.

Compensation for damage by deduction from wages

That is, it is legal to withhold the following amounts from wages for August:

the amount of the penalty under the writ of execution - 5,000 rubles;
not returned on time advance payment issued for travel expenses - 1742 rubles. 50 kopecks.

The maximum size increases up to 70% (part 3 of article 138 of the Labor Code of the Russian Federation):

while serving correctional labor;
when collecting alimony for minor children;
upon compensation for harm caused by the employee to the health of another person;
in case of compensation for harm to persons who have suffered damage in connection with the death of the breadwinner;
in compensation for damage caused by a crime.

Rule 4. Deductions must be properly executed. To deduct the amount from the employee's salary on the grounds specified in Art. 137 of the Labor Code of the Russian Federation, the employer should issue an order to this effect.
Direct actual damage means a real decrease in the employer's cash assets or deterioration of the specified property (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to make expenses or excessive payments for the acquisition, restoration of property or for compensation for damage caused by the employee to third parties (part 2 of article 238 of the Labor Code of the Russian Federation). According to 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 calculated based on market prices in force in the area on the day of damage, but not less than the value of the property according to accounting taking into account the degree of wear and tear of this property. Moreover, by virtue of Part 1 of Art.
And, if the income of the guilty person per month was 70 thousand rubles, the employer would not need the employee's consent to collection. Sample application Download a sample statement of consent to withhold funds as compensation for damage caused to the employer - word. Order on compensation for damage caused to the enterprise The legislation does not provide for a special form of such a document. Therefore, an order is issued in a free form. However, there are mandatory points that are recommended to be included in it:

full name of the organization;
the name of the document itself;
a short description - what the order is about;
date of preparation;
a brief description of the situation with links to accompanying documents and laws;
withholding requirement of not more than 20% of monthly salary specific employee with an indication of his full name.

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