Amount charged to an employee. How to recover material damage to the employer from the employee. Limits on the amount of deductions

Hello! Is it possible to withhold at the time of dismissal a lump sum of material damage revealed on the eve of dismissal in the amount of average earnings? Is there a limit of no more than 20% in this case? Can deductions be made from 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). 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 material damage was discovered. No more than 20% can be deducted from an employee's monthly salary. If deductions are made from the last salary payable upon dismissal of an employee, 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 expressly state 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, it is necessary to take from the employee a written consent to the deduction. This will avoid disputes with him. If the employee does not agree to the deduction, he can voluntarily deposit the amount due from him to the cash desk 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 off the loss.

The rationale for this position is given below in the materials of the Glavbukh System vip version

1. Situation: How to withhold debt from an employee who is leaving. Withholdings are made at the initiative of the organization

From the last salary to be issued, withhold the entire amount of the debt. Even if it exceeds 20 percent of the salary this month. Rules established by part 1 of Article 138 Labor Code RF does not work in this case. Based on the systematic interpretation of Articles 137, 138 and 140 of the Labor Code of the Russian Federation, the limitation on deduction in the amount of 20 percent of the salary due is valid only for monthly salary payments. Upon dismissal of an employee, you can recover the entire amount of the debt. This point of view is shared by specialists of the Ministry of Health and Social Development of Russia in their private explanations.*

The chief accountant advises: since the legislation does not directly 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 written consent of the employee to withhold. This will avoid disputes with him.*

It should be noted that in the event of litigation with an employee, the court may take the side of 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 concluded that Article 138 of the Labor Code of the Russian Federation limits the amount of deductions for each salary payment in order to provide an employee with an amount sufficient to meet his basic living needs. It does not matter whether the labor Relations or an employee is fired. Consequently, upon dismissal of an employee, no more than 20 percent of the salary can be withheld from him (see the cassation definition Supreme Court Republic of Buryatia dated February 27, 2012 No. 33-531).

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

N.Z. Kovyazin

Hold order

Withhold 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 that the employee caused 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 material damage to the organization is obliged to compensate is indicated 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 valuables.

in commercial organizations

Specify the identified shortage (cost of losses) in the reconciliation statement.

Make collation statements:
- either according to the forms approved by clause 1.2 of the Decree of the Goskomstat 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 the event of an accident due to the fault of an employee, the amount of material damage can be established from documents received from insurance and repair companies.

Damage assessment

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

Written explanations of the employee

After determining the amount of damage, take a written explanation from the employee about the reasons for which it arose. 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.

Retention order

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

Calculation of the amount of damage

Based on the order, from the employee's income, withhold the cost of damage not exceeding his average monthly earnings. In view of this rule, it is necessary to recover damages both in cases where the employee bears limited liability, and in cases where liability occurs in the full amount of damage.

The amount of damage exceeding the average monthly earnings can be obtained from the employee only through the court (in the event that he is fully 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 installment payment 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 withheld from an employee's income

The legislation does not provide a methodology for calculating the average monthly earnings. For all cases of maintaining average earnings, a single procedure for its calculation is established based on 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 that are used in determining the amount of payments cannot serve as a basis for using any other procedure.

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 material damage was discovered (Article 139 of the Labor Code of the Russian Federation, clauses 9 and 13 of the Regulation approved by the Government Decree RF dated December 24, 2007 No. 922).

No more than 20 percent can be deducted from an employee's monthly salary. Therefore, to recover the amount of material damage in the amount of average salary, most likely within a few months.*

An example of calculating the material damage recovered from an employee. The contract on full liability with the employee is not concluded

In January, through the fault of employee A.S. Kondratieff's printer failed. The employee has limited liability.

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

The average daily earnings of Kondratiev is 900 rubles / day. January has 15 working days.

The average monthly earnings of Kondratiev 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 Kondratiev by order of the head. Moreover, from each of his salaries - no more than 20 percent.

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

The organization revealed a shortage of money in the cash desk in the amount of 52,000 rubles. With cashier A.V. Dezhneva concluded an agreement on full liability. She pleaded guilty.

Dezhneva's average earnings in the month when a shortage was discovered is 10,000 rubles. Since the average earnings are less than the amount of damage, 10,000 rubles are withheld from Dezhneva by order of the head. 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 reimburse the rest of the damage and quit. The organization went to court to recover the funds.*

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

On January 12, 2013, through the fault of employee A.S. Kondratieff's printer failed. The employee has not signed an agreement on full liability.

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

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

In January 2013, 17 business days.

The average salary of Kondratiev for the month in which material damage was caused (January 2013) is:
200 000 rub. : 250 days ? 17 days = 13,600 rubles.

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

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

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

The employee's income after tax is:
15 000 rub. - 1898 rubles. = 13,102 rubles.

The maximum amount of deductions from an employee's monthly income is:
RUB 13,102 ? 20% = 2620 rubles.

The amount of damage caused by the employee is more than this amount. However, in January, the accountant withheld only 2,620 rubles from Kondratiev'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 drawn on the basis of Article 137 of the Labor Code of the Russian Federation. It says that deductions at the initiative of the organization should be made from the salary. Compensation payments(per diems, 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 that the organization makes not on its own initiative, but at the request of the employee. Therefore, if there is such a statement, it is possible to deduct the amount of material damage from any payments.

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

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 off the loss. You will also have to apply to the court if the order to withhold was issued later than a month after determining the amount of damage (Article 248 of the Labor Code of the Russian Federation). *

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

Waiver of retention of damages

The employer has the right to refuse to withhold damages from the employee. Waiver of recovery may be full or partial, taking into account the specific circumstances in which the damage was caused. This right is granted by Article 240 of the Labor Code of the Russian Federation.

A waiver of damages is acceptable regardless of the following factors:
- the type of responsibility borne by the employee (limited or full liability);
- form of ownership of the organization.

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

Issue an order to release an employee from compensation for material damage.

N.Z. Kovyazin

Deputy director of the department wages, labor protection and social partnership Ministry of Health and Social Development of Russia

Unfortunately, not a single employer is insured against the possibility of damage to property by an employee. Sometimes this is caused by the negligent attitude of an employee to his professional duties. It is quite natural that the employer wants to compensate for the damage caused by the employee. But can you always count on it? How to properly recover material damage from an employee? What mistakes are most often made by the employer in this case?

When does responsibility come?

The onset of 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 individual who works for the employer at the time of damage to property;
the amount of liability depends on the amount of damage and the nature of the violation that led to damage to property.

Liability comes under the condition that there is:

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

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

What is financial responsibility?

The essence of liability lies in the obligation of the employee to compensate for the material loss caused by him. In this case, only damaged property is meant, lost profits are not taken into account.

The definition of material damage includes a real decrease in the quantity or deterioration in the quality of the property of the employer. For example, lack of money, damaged equipment, raw materials, expenses for paying a fine in relation to the employer, which was appointed through the fault of the employee.

What is the responsibility of an employee?

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

Type of liability

What does it consist of

When does

Complete

Damage is fully reimbursed

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

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

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

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

6. there is a disclosure of trade secrets by the employee

Partial

Only part of the loss is reimbursed. The amount of compensation does not exceed the average monthly salary

In other cases

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

It is common for an employer to conclude an agreement on full liability with each hired employee. At the same time, he believes that such an action reliably insures him in the event of property damage caused by an employee. But it is not always the case. Such an agreement will not become a lifesaver for the employer in any case.

For example, the employer tried to receive 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 in job responsibilities This employee did not directly include ensuring the safety of the company's property.

How to recover the damage caused?

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

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

The employer has the opportunity to withhold the loss from the perpetrator not only through the court, but also in judicial order.

Without recourse to the courts, a shortage is withheld, not exceeding the average monthly salary of an employee. An order to this effect must be created no later than a month after the incident occurred and the losses were calculated. If an employee objects to the actions of the employer, then he can go to court.

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

Reflection of damage on accounts: postings

The value of the property established during the inventory should be shown in the debit of account 94. Read also the article: → “”. This amount is recorded in the accounts as follows:

Account correspondence		Content of a business transaction
Debit	Credit	Content of a business transaction
73/2	94	Attributing the shortage to the culprit
50, 51, 70	73/2	The employee contributed money to the cashier or to the account of the enterprise, or the missing amount was deducted from his salary
73/2	98/4	The difference between the market and accounting estimate of the loss, if any, is shown
98/4	91/1	The difference between the market and balance valuation 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	Found in reporting period shortfall relating to past periods and included in deferred income
98	91	Deferred income refers to the reporting period when the loss is repaid by the culprit.

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

The most common mistakes employers make when claiming damages

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

attempt to recover the damages incurred in full. Full compensation for damage is allowed only in cases strictly defined by law (Article 241 of the Labor Code). Also, the head of the company bears full financial responsibility and Chief Accountant enterprises;
conclusion of 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 no legal grounds for this (the position of the employee is not in a special list, or his activity is not related to material values), then the court will recognize it as invalid;
an attempt to recover from the employee not only the damage caused, but also lost profits. The employee is obliged to compensate only for direct loss;
the mistake of the employer is to withhold the amount of the administrative penalty imposed on him through the fault of the employee. For example, the seller did not ensure 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 pay damages in this amount, and the employer went to court. The court, taking into account all the circumstances, dismissed the employer's claim. In this case, he can receive compensation for the damage caused only partially in an amount not exceeding the average wage of the employee.

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

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

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

Question number 2. Does an employer have to pay damages caused to them by an 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 the circumstances specified in Article 240 of the Labor Code of the Russian Federation occur. These include severe financial situation employee, a small amount of damage caused, minor dependent children. The employer may not recover material damage either initially or refuse to recover 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 that does not exceed the average salary of the employee. The list of cases when full liability arises is established by law and the employer cannot expand it in any way. Regulations there is no specific procedure for calculating average earnings for the purpose of compensating for the loss caused by an employee. 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 variant of full repayment of the cost of the loss defined by law, then the most that the employer can count on is the average salary of the employee. In a month, you can not deduct more than a fifth of earnings from earnings. If the employer believes that he has the right to demand repayment of the inflicted 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. Without fail, the cost of the loss caused by the employee must be calculated based on market prices. But if the assessment of the missing funds in the accounting of the enterprise exceeds the market value, then the greater cost 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. Yes, 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 delinquent 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 recovery 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 offending employee has a positive reputation in professional circles (the property was "damaged" through negligence).

Important! The decision of the employer to collect compensation in the prescribed amount must be documented (in the form of an order). Once the damage amount has been determined, the employer issues a deduction order Money from the employee's salary. This document must be issued no later than 30 days from the date of ascertaining the fact of damage and reflecting it in the inventory act.

The amount to be recovered from the employee should not exceed his monthly salary (set on the basis of the actual salary for 12 months).

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

travel;
Payments that cover material costs to transfer an employee to another location;
Funds for inventory depreciation;
maternity;
Benefits for pregnancy and childbirth.

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 fault and the type of liability (it can be full or limited).

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

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

Determining the amount of compensation for damage to the employer in general order carried out in 2 ways:

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

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

Important! The general procedure for recovery for 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 company's funds or insurance premiums(if the damaged property was insured).

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

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

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

Redress mechanisms

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

The amount and form of compensation for damage are 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 installment agreement is concluded), the guilty person undertakes to fully cover the damage by a certain time.

Important! If the employee has not repaid the debt within the established time limits, the employer may sue the unpaid funds from him.

It should be remembered that with a voluntary agreement, an employee can 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 remaining part of the debt.

Compensation for damage is carried out not only voluntarily, but also out of court - the employer withholds the established amount from the salary of the offending employee.

Extrajudicial recovery of compensation is carried out subject to several important conditions:

the total amount of damage coverage does not exceed the monthly earnings of the offending person;
no more than 30 days have passed since the damage (loss) of the property;
the employment relationship between both parties continues throughout the entire compensation period.

Damages are compensated by the court 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 compiling (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 responsibility).

Rules for filing a claim

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

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 respondent;
The subject of the claim (the fact of the damage caused, evidence of the defendant's guilt);
The amount of compensation required (price of the claim);
Information about pre-trial attempts to resolve the situation (if any).

In this case, the only way to claim compensation is through the courts. In accordance with Article 392 of the Labor Code of the Russian Federation, the employer has the legal right to apply to the court within 12 months from the date of causing 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 some point the guilty person did not make the next payment, and, moreover, subsequently quit, it is the date of the first missed payment that will be the starting point of the one-year period allotted 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.

Limit payout rates

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

deliberate infliction of harm;
the presence of a shortage of valuables that were entrusted to the employee in accordance with the agreement;
criminal actions of the employee (established in court);
the damage was the result of an act of a guilty person who was in a state of intoxication;
cases of disclosure confidential information concerning economic activity enterprises (including one that is protected at the legislative level);
losses caused due to an administrative violation (the fact of the existence of such is recorded by the relevant state authority);
The damage was done during non-business hours.

If the court decides that causing damage is actually a criminal act, the perpetrator bears not only financial, but also criminal liability for the deed.

Many "victims" of negligence or deliberate sabotage by employees without their knowledge withhold amounts in excess of their 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 causing damage. In both the first and second situations, it is possible to demand payment only in court.

Other errors related to material penalties against damages:

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 from the employee regarding the situation that has arisen.

Upon the fact of causing damage, the employer must demand written explanations from the guilty person, if the offending 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;
Disdainful attitude to the exploitation and storage of material goods by the employer himself;
The absence of an agreement on the material liability of the offending employee (or drawing up a paper without convincing reasons).

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

In addition, the employer does not legal right conclude similar contracts with persons employed in positions not listed in the Decree of the Ministry of Labor No. 85.

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

The existence of the natural economic risk in relation to a particular enterprise;
The presence of force majeure circumstances;
The absence of such working conditions that would allow a financially responsible person to safely operate the entrusted values and ensure their safety;
Signs of self-defense or extreme necessity, resulting in damage to property.

It is noteworthy that in case of intentional harm, shortage, loss of property or the fact of theft, the enterprise establishes special rules calculation of losses. For example, in the event of the loss of psychotropic or narcotic drugs, the offending employee is obliged to compensate for losses of a direct nature in 100 times their original value.

Important! The full liability of the 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 in a voluntary (by agreement), extrajudicial, judicial procedure. The total amount that the employee who caused the damage undertakes to pay must 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 No. 15 of the Civil Code of the Russian Federation states that to receive monetary compensation every citizen of Russia or another state, as well as any legal entity, has the right for material damage.

The concept of "damage" combines two components:

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

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

So, partial compensation of losses takes place if the damage is 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 compensation procedure 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 procedure for paying compensation are enshrined in the legislation of the Russian Federation.

Compensation for the damage caused is possible both by mutual agreement and by filing a claim-application in court.

There are general rules of jurisdiction:

if the value of the claim is less than 50,000 rubles, then the claim is filed with the world court; if the value of the claim is more than 50,000 rubles - with the district court.

Steps to take before applying about compensation for material damage:

it is necessary to provide evidence of the fact of causing 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 causing damage is sufficient.

The next step is to file a claim., which will become the basis for consideration of the case for the purpose of payment of compensation.

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

General procedure for damages

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

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

Compensation of losses by the employee occurs after the discovery of the damage caused. The employer must conduct an audit to clarify the circumstances of the employee's involvement in the fact of causing damage.

Order compensation provides for the possibility of voluntary repayment of the loss at a time or in installments.

If the employee refuses to pay compensation voluntarily, the employer has the right to recover through judicial procedure. The statute of limitations in this case is 1 year from the date of discovery of the damage.

It happens that material damage is inflicted on the employee by the employer. In this case, the obligation for compensation of material damage to the employee is fully borne by the employer. In case of violation of the term for payment of monetary rewards (salary, bonuses, etc.), the amount is calculated taking into account interest for the delay period.

Indemnification of claims within the framework of non-contractual relations is regulated either by agreement of the parties, or in court.

Judgment can be made only on the basis of the filed statement of claim of the victim. The claim is sent to the court by mail or delivered to the reception of the court.

The term for compensation for material damage is established by the legislation of the Russian Federation and is 3 years from the onset of the event, as a result of which the damage occurred.

How to write an application correctly?

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

The application must be made in writing and comply with the requirements prescribed in Article 131 of the Civil Code of the Russian Federation.

The application must include the following information:

the official name of the court to which the document is submitted; last name, first name, patronymic of the plaintiff (in full), address of residence. If the applicant performs all actions through a trustee, then all the details of the intermediary must be indicated; all personal information about the defendant, if it is an individual. Location of the organization, if claims are made to a legal entity; description of the essence of the damage caused, the exact date, place and circumstances that caused material damage; evidence of the circumstances on the basis of which, according to the plaintiff, the loss was caused; the amount of compensation for material damage; description of actions the applicant on attempts to out-of-court settlement of the conflict; a list of documents attached to the application; the 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 payment of the state duty; documents evidencing the loss; calculations for compensation for material damage (original and copies according to the number of defendants); a power of attorney to represent the interests of the plaintiff in case the plaintiff does not represent your claim in person.

The procedure for calculating and determining the amount of material losses

The most common types of damage caused:

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

The damage calculation depends on on the specific circumstances and the claims put forward by the plaintiff:

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

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

Terms of reimbursement

The limitation period for compensation for material damages is 3 years since the occurrence of the event that caused the damage.

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

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

It can be a one-time payment or an installment payment. In any case, it is made additional agreement, which specifies the date of repayment of the debt.

If there is a judicial resolution of the conflict to compensate for the damage caused, then the terms of payments will be determined in the court decision. It is controlled by the bailiffs.

Features of compensation for damage caused by a crime

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

The statute of limitations does not begin from the moment the crime was committed, but from the moment the harm was discovered by the victims, and lasts 3 years.

Guilty of committing a crime and 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 cost of living in the country.

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

The fact is that the very fact of causing damage is not the basis for terminating the employment contract at the initiative of the employer; this also requires the decision of the competent authority (see, for example, subparagraph “d”, paragraph 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 own will. The employer then goes to court to recover damages. In the event that the employer fails to comply with the conditions for the recovery of damages (namely, if the one-month period during which a deduction order can be made is violated, or an amount exceeding the average monthly earnings is recovered), the employee has the right to go to court, moreover, as follows from part 2 Art. 248 of the Labor Code of the Russian Federation, bypassing the commission on labor disputes. 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 make payroll deductions

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

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

137

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

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

Info

Therefore, before proceeding with the recovery, the head of the organization must create a special commission to investigate and establish the fact of the violation, the employee's involvement in it and the amount of harm 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 recover from wages only the amount of lost profits. Read also about how to keep a shortfall from your salary.

The amount of the penalty The specific amount of deductions from the salary of staff is established by Art. 138 of the Labor Code of the Russian Federation. The collection cannot exceed 20% per month. The amount to compensate for the damage caused to the enterprise must be deducted from the accrued wages minus the income tax of 13%.
See also: Examples First example: The accrued salary of an employee for a month 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. - penalty for officials and IP;

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

Similarly, an employer cannot, on its own initiative, deduct amounts from an employee's salary to repay a loan issued to him. Repayment of a loan by deduction from wages is possible only at the request of the employee himself.
Also, the employee can “ask” the employer in writing to deduct other amounts from wages on a monthly basis: to pay off a bank loan, for the voluntary maintenance of children, etc. At the same time, the bank commission and other expenses associated with the transfer of these amounts to the recipient must also be made at the expense of the employee.
! Please note: Deductions from wages that the employer makes at the written request of the employee are not "withholdings" within the meaning of Art.

Payroll deductions

The founding documents oblige the employer to first create a commission to investigate and establish the amount of material damage. Written explanations of what happened must be requested from the employee.
If he refuses to give them, you need to draw up an appropriate act. Upon completion 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 in order to recover, the employer must issue an order (order). It is he who will act as the documentary basis for 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 be collected only through the courts. Then the documentary basis will be the decision of the court.

Under such circumstances, an additional retention order is not issued.

Chapter 11 Deductions 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 without fail that a deduction will be made on such and such a basis and in such and such an amount (that is, in fact, ask for 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 disputing the withholding until he declares this to the employer. recovery of damage under certain conditions In the following cases, although deductions are made, but subject to a monthly period and provided that the employee does not dispute their basis and amount: business trip or transfer to another job in another area, as well as in other cases.

Four rules for deductions from wages

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

Article 248 of the Labor Code of the Russian Federation allows compensation for damages with installment payment, but only by agreement with the employer. In this case, the employee undertakes in writing to pay the agreed sums of money at regular intervals, repaying the debt by the date stipulated by the parties.

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

Performance list. If enforcement proceedings are in place against an 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.
The decision of the commission on labor disputes. In the event of a labor dispute with the employer, the final decision on deductions from the employee's salary, for example, to compensate for damages, may be taken by the labor dispute committee.
However, such a decision may subsequently be challenged in court.
Court decision or court order.

Compensation for damages by deduction from wages

That is, the following amounts are legally deducted from wages for August:

the amount of the penalty under the writ of execution - 5000 rubles;
advance payment not returned on time, issued for travel expenses - 1742 rubles. 50 kop.

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

while serving correctional labor;
in the recovery of alimony for minor children;
in case of compensation for harm caused by an 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 137 of the Labor Code of the Russian Federation, the employer should issue an order to this effect.
Direct actual damage is understood as a real decrease in the employer’s cash property or deterioration of the said property (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs or excessive payments for the acquisition, restoration of property or 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 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 taking into account the degree of wear and tear of this property. At the same time, by virtue of Part 1 of Art.
And, if the income of the perpetrator per month was 70 thousand rubles, the employer would not need the consent of the employee to recover. Sample application Download sample application for consent to withhold funds in compensation for damages caused to the employer - word. The order for compensation on account of the harm caused to the enterprise The legislation does not provide for a special form of such a document. Therefore, an order is issued in free form. However, there are mandatory items that are recommended to be included in it:

full name of the organization;
the name of the document itself;
a brief description - what the order is about;
Date of preparation;
a brief description of the situation with links to supporting documents and laws;
deduction requirement of not more than 20% of monthly salary specific employee indicating his full name

It might be useful to read: