I am familiar with the order, I agree with the content

If the manager intends to forgive the employee for the amount of damage caused to the company for any reason that he considers valid, then he can issue an order to release the employee from financial liability and Art. 240 of the Labor Code of the Russian Federation.

TELLING THE MANAGER

Even the culprit is ready to voluntarily compensate for the damage, an order should be issued to recover the damage within one month from the date of detection of damage.

True, the Ministry of Finance believes that in such a situation the employee has income in kind e Letters of the Ministry of Finance dated 12.04.2013 No. 03-04-06 / 12341, dated 08.11.2012 No. 03-04-06 / 10-310... Therefore, you will need to calculate personal income tax at a rate of 13% with the difference between the amount of the debt forgiven to the employee and 4000 rubles. (subsidized amount) clause 28 of Art. 217, art. 224 of the Tax Code of the Russian Federation and withhold tax at the next payment of income to the employee in cash. The absence of the need to withhold personal income tax from the debt forgiven to the employee, you will have to prove in court Resolution of the FAS ZSO dated 30.12.2013 No. A27-9551 / 2012... In addition, it is safer to calculate from such income insurance premiums in funds.

It is better not to issue a debt forgiveness to an employee, that is, not to issue an order for exemption from liability. You can simply write off this amount a year after the discovery of damage due to the impossibility of collecting Art. 392 of the Labor Code of the Russian Federation.

We collect damage that does not exceed the culprit's average earnings

With each payment of salary, you can withhold in compensation for damage no more than 20% of the amounts accrued to the employee, minus personal income tax Art. 138 of the Labor Code of the Russian Federation; h. 1 tbsp. 99 of the Law of 02.10.2007 No. 229-FZ (hereinafter - Law No. 229-FZ).

If the employee wants to voluntarily pay off the debt, then you can:

• provide for any size of deductions. For example, to withhold at a time the entire amount of damage in excess of 20% of the employee's average earnings;
• agree on any terms, form and method of debt repayment. For example, to determine whether the debt will be repaid in a lump sum or by installments, the employee will pay money to the organization's cashier or credited to its account, or you will withhold the debt from his salary in any amount agreed with the manager. In addition, you can agree with an employee about compensation for damage not in cash, but in kind. Suppose he transfers in return for the damaged (lost) property:

• <или>other property of equal value or repairs damaged;
• <или>property of less value than damaged (lost), and pays the rest of the damage in cash.

An agreement with an employee about the voluntary repayment of a debt by him can be formalized in different ways. For example, he can write the following on the order (order) to collect the following.

I am familiar with the order.

I undertake to compensate for damage in the amount of 32,565 (Thirty two thousand five hundred sixty five) rubles. in the following order: depositing 10,000 rubles into the cashier. until March 10, 2014, 10,000 rubles. until April 25, 2014, RUB 12,565 until May 31, 2014

Or you can conclude a separate agreement, ask the employee to write a receipt or a statement. For example, if he is going to give his property to pay off a debt, the application may look like this.

to CEO
LLC "Telemania" P.R. Alyoshin
from the manager R.O. Zabyvaeva

Do not mind
A manager's visa is enough, no separate order needs to be issued

Statement

I, Rodion O. Zabyvaev, undertake to transfer to Telemania LLC until March 4, 2014 Let the employee indicate the deadline for repayment of the damage mobile phone Nokia C2-01 worth 3100 rubles. into account my lost Nokia C2-02 phone with a residual value of 3,500 rubles. Let the employee indicate the reason for the recovery of damage and its amount

If the employee pledged to compensate for the damage voluntarily, but before the full repayment of the debt, he quit and refused to pay the debt, you will be able to collect the remainder of it only in court. Art. 248 of the Labor Code of the Russian Federation... Of no payments assigned to the employee upon dismissal (say, vacation pay for unused vacation days), without his consent, it is impossible to withhold an unpaid amount of damage in excess of 20% of such payments at a time.

When an employee leaves the job after refusing to pay the entire amount owed, the employer must:

• issue an order to dismiss the employee;
• give him a work book and calculate it.

If the employer delays the issue work book and this will prevent the employee from finding a job, he has the right to appeal in court against the delay in issuing a dismissal. And the court can oblige the company to pay the employee the average earnings for the entire period of delay in issuing him a work book.

We collect the amount of damage through the court

You will have to go to court if:

• <или>the amount of damages to be recovered is greater than the employee's average monthly salary;
• <или>the head did not issue an order to deduct the amount of damage from the salary within a month from the date of registration of the results of the official audit;
• <или>the employee left the company before the full payment of the debt withheld from his salary by order of the manager.

TELLING THE MANAGER

Go to court for damages it is possible even if the statute of limitations is missed. But if the employee declares in court that the employer missed such a period, and the court does not recognize the reason for the omission as valid, the companies will simply refuse to file a claim. Clause 3 of Resolution No. 52.

The employer has everything to go to court for damages 1 year Art. 392 of the Labor Code of the Russian Federation:

• <или> from the day when damage was discovered(for example, this is the date of the memorandum on damage to property, the date of the inventory statement);
• <или> from the day the employer discovered a violation of his right to compensation damage (for example, when the amount of damage is paid in installments - from the date when the employee should have made the next payment, but did not make it) Definition of the aircraft from 30.07.2010 No. 48-B 10-5; Appeal ruling of the Court of the Khanty-Mansiysk Autonomous Okrug - Ugra dated July 16, 2013 No. 33-2894 / 2013.

STEP 1. In writing, invite the employee to pay the damage voluntarily Art. 248 of the Labor Code of the Russian Federation.

For example, you can write such an appeal.

Limited Liability Company "Your comfort"

Proposal for voluntary compensation for the amount of damage

Moscow city

To: Ochumeloruchkin Naum Valerianovich

Grounds: order dated 05.02.2014 No. 12 on the recovery of the amount of damage

You have caused damage to the property of Vash Uyut LLC in the amount established on the basis of the commission's conclusion dated January 23, 2014 No. 1.

We offer you to voluntarily reimburse LLC "Your comfort" damage in the amount of 32,565 (Thirty two thousand five hundred sixty five) rubles.

I voluntarily refuse to compensate for the damage If the employee does not want to compensate for damage voluntarily, let your written request will write a refusal to voluntary repayment i Art. 248 of the Labor Code of the Russian Federation

STEP 2. To file a claim in court, pay the state fee and prepare a package of documents.

State duty amounts to the amount of the recoverable damage a subn. 1 p. 1 of Art. 333.19 of the Tax Code of the Russian Federation:

• up to 20,000 rubles. - 4% of the cost of the claim, but not less than 400 rubles;
• from 20 001 rub. up to 100,000 rubles. - RUB 800 + 3% amounts exceeding 20,000 rubles;
• from 100 001 rub. up to 200,000 rubles. - RUB 3200 + 2% amounts exceeding 100,000 rubles;
• from 200,001 rub. up to 1,000,000 rubles. - 5200 RUB + 1% amounts exceeding 200,000 rubles;
• over 1,000,000 rubles. - RUB 13,200 + 0.5% amounts exceeding 1,000,000 rubles, but not more than 60,000 rubles.

It includes:

• materials of the official check, confirming the fact of damage caused by the employee and its size;
• an employment contract with a guilty employee. If damages are recovered from an employee who quit before the employer fully withholds the amount of damage, then orders to withhold damage from wages and to dismiss this employee are also needed;
• a certificate from the accounting department about the employee's average monthly earnings;
• a written offer to the employee to compensate the damage voluntarily;
• a receipt for payment of the state duty, the amount of which depends on the amount of damage recovered.

STEP 3. If the court decides in favor of your company, then the writ of execution issued to you with a statement to initiate enforcement proceedings must be handed over to the bailiff. He will issue a decree on the initiation of enforcement proceedings and give you documents to withhold the amount of debt from the employee's salary Articles 12,,, 98 of Law No. 229-FZ.

WE TELL THE EMPLOYEE

Free completely culprit from damages the court will not be able under any circumstances x Clause 16 of Resolution No. 52.

Do not be surprised if in the writ of execution and in the order of the bailiff you see the amount to be collected, which differs from the one that went through you according to the documents of the official audit and other papers. The court can recover the amount in favor of your company:

• <или> in a larger size. Let's say you wanted to recover damages within the employee's average monthly earnings. But during the trial it turned out that the employee inflicted it not in the performance of his job duties, so he can be held liable in full e Art. 243 of the Labor Code of the Russian Federation... True, in this case, the employer-plaintiff must have time to increase the amount of claims and pay additional state fees before the court makes a decision on the case. Art. 39 Code of Civil Procedure of the Russian Federation;
• <или> in smaller size taking into account various circumstances (for example, the degree and form of guilt, financial situation employee, the presence of disabled dependents on his maintenance) if you are already withholding money from the salary of the employee who caused the damage according to some other executive documents, then take into account the order of deductions. The claim for damages under the writ of execution belongs to the fourth priority.

  There is payments from which damage cannot be withheld, in particular Art. 101 of Law No. 229-FZ; Art. 138 of the Labor Code of the Russian Federation:

  • compensation payments in connection with business trip or in connection with a transfer or assignment to work in another locality;
  • material help paid, for example, in connection with a natural disaster or the death of a relative;
  • maternity benefit.

  Suppose that an amount is already withheld from the employee's salary as compensation for harm caused to health, in the amount of 50% of earnings. You will be able to start collecting an amount from an employee as compensation for damage to your company only after the debt for compensation for health damage has been paid off.

  But if you have to withhold from the employee's salary, in addition to reimbursing the damage to your company, some other sums of the same queue, then proceed as in the example below.

  Example. Calculation of the amount of deduction from the employee's salary

  / condition / Installation engineer N.V. Ochumeloruchkin refused to voluntarily compensate Vash Uyut LLC for damage exceeding his average monthly earnings. The salary of an installation engineer is 35,000 rubles. per month. The personal income tax rate on the employee's salary is 13%.

  Ltd. "Your comfort" went to court with a claim for recovery from N.The. Ochumeloruchka on the amount of damage and won the case.

  By order of the bailiff-executor, 30% of the employee's salary must be withheld.

  In addition, from the salary of N.V. Ochumeloruchkina is withheld money to repay a bank loan in the amount of 40% of his salary.

  / solution / The amount of deductions in this situation is 70% of the salary.

  Therefore, you must satisfy both requirements in proportion to the amounts due to the claimants, but so that the total amount of deductions does not exceed 50% of the monthly salary yes h. 2 tbsp. 99 of Law No. 229-FZ... Act like this.

  1. Calculate personal income tax from your salary:

  RUB 35,000 x 13% = 4550 rubles.

  2. Determine the amount of salary that can be withheld in compensation for damage and debt on a loan:

  (35,000 rubles - 4,550 rubles) x 50% = 15,225 rubles.

  3. Calculate the monthly deduction for damages to your company:

  30% / 70% x 15 225 rubles. = RUB 6525

  STEP 5. If the debtor employee leaves before you have managed to withhold the entire amount of damage from him, a writ of execution and a resolution to initiate enforcement proceedings must be sent to the bailiff. Attach a free-form message indicating the reason for the return of documents and the amounts that you have already withheld from the salary of your debtor a

• <или>issuing an order from the head to recover damage from the employee;
• <или>the entry into force of a court decision on compensation for damage by the employee.

If your manager has agreed with the employee to compensate for damage by depositing property instead of lost or damaged property, then neither expense nor income should be reflected in the accounting records. But make sure that the thing received from the employee is comparable in value with the property damaged (lost) through his fault. Make up such an act.

Limited Liability Company "Telemania"

Act No. 1
acceptance and transfer of property from the employee on account of compensation for damage

Moscow city

From employee R.O. Zabyvaev received a mobile phone on account of the Nokia C2-02 phone he lost.

VAT

There is no need to charge VAT on the amount of compensation received from the employee, because there is no sale and subn. 1 p. 1 of Art. 146 of the Tax Code of the Russian Federation.

It is also not necessary to restore the VAT deduction for the damaged property being written off, since there is no such reason for the tax recovery in the Tax Code. clause 3 of Art. 170 of the Tax Code of the Russian Federation.

"Discerning" accounting

In accounting, you need to make the following entries.

If the employee has repaired the damaged property himself, then there is no need to record either damage or repairs in the records.

You can take into account the amount of the debt forgiven to the employee in accounting in other expenses. This amount must be reflected in the debit of account 91, subaccount 91-2 "Other expenses", and the credit of account 94 p. 11 PBU 10/99.

In parallel with the material liability of an employee guilty of causing damage to the company, disciplinary liability can be brought against Art. 193 of the Labor Code of the Russian Federation.

You can immediately dismiss an employee only if he has committed theft of the company's property, has deliberately destroyed or spoiled it, which is confirmed by a court verdict or a resolution of a body authorized to consider cases of administrative offenses х subn. "G" clause 6 of Art. 81 of the Labor Code of the Russian Federation.

In all other cases of causing material damage to the company, a reprimand or reprimand can be applied to the guilty employee. Art. 192 of the Labor Code of the Russian Federation... This must be done so that if an employee commits a repeated disciplinary offense within a year, you can fire him for repeated failure to fulfill his labor duties.

12.07.2016 04:54

In a situation where an employee dealing with material values ​​(seller, cashier, storekeeper) has caused material damage to the company, to put it simply, “he was stealing,” the natural desire of the management is to recover the damage from him. But this does not always happen due to non-observance of the formalities established by law. That is, the employer, of course, can withhold fromwages the employee the amount of damage. But if the requirements of labor legislation are not met, then the court will take the side of the employee and return him not only the amounts withheld by the employer, but also recover the moral damage declared by the employee (Article 237 of the Labor Code of the Russian Federation), interest for delayed wages (Article 236) Labor Code of the Russian Federation), court costs (Article 88 of the Code of Civil Procedure of the Russian Federation).

Therefore, compliance with the law when recovering damage is very important. We offer some advice on how to recover damages from an employee so that in the event of a dispute, the court is on the employer's side.

Advice 1. Make an agreement on full liability when applying for a job

In addition to an employment contract with employees serving material assets, it is necessary to draw up an agreement on full material responsibility. Without this agreement, it will not be possible to bring the thief employee to full financial responsibility (see, for example, the Appellate ruling of the Samara Regional Court of 13.08.2014 in case No. 33-7921 / 2014).

Sometimes employers go too far and conclude agreements on full liability with all employees in a row. Please note: only contracts with employees holding positions or performing work specified in the Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85 will have legal significance. Accordingly, the name of the position or work performed in the employment contract must comply with this Decree.

The same Resolution contains examples of agreements on full individual and collective liability. Moreover, if several employees work in one trading floor, in one warehouse, at one cash register, then it is necessary to conclude a contract on collective liability. The conclusion of an agreement on individual responsibility in this case would be a mistake.

Can an employee refuse to execute an agreement on full liability? Recall the explanations of the Plenum The Supreme Court RF, given in the Decree of March 17, 2004 No. 2. This Decree indicates that the employee does not have the right to refuse if the service obligations material values were established at the conclusion of the employment contract.

Also, when hiring an employee, before signing an employment contract, it is necessary to carefully prescribe in the employee's job description his job descriptions related to the maintenance of material assets, that is, what exactly he is obliged to do with goods, money, material, and other material assets.

Tip 2. Conduct an inventory and draw up an acceptance certificate when applying for a job

Is a full liability agreement sufficient to reasonably bring the employee to liability? The mere execution of this agreement is not enough. It is necessary to formalize the handing over to the employee of certain property (see, for example, the Appellate ruling of the Saratov Regional Court dated 09.10.2014 in case N 33-774). Indeed, in paragraph 2 of Art. 243 of the Labor Code of the Russian Federation refers to the shortage of the entrusted property.

To determine what kind of property will be handed over to the employee when changing financially responsible persons, it is necessary to conduct an inventory. The need for inventory is directly provided for by the Order of the Ministry of Finance of Russia dated July 29, 1998 No. 34n, Methodological instructions approved by the Order of the Ministry of Finance of the Russian Federation dated June 13, 1995 No. 49. Following the results of the inventory, the following documents must be drawn up:

Order on the creation of an inventory commission;

An order to conduct an inventory with an employee's mark of acquaintance (recommended);

Inventory list;

Collation statement.

Property that was reflected in the inventory list and will be transferred from the previous financially responsible person to the next.

To confirm this, an acceptance certificate should be drawn up, in which it should be indicated:

Specific property that is transferred to the materially responsible person (in pieces, meters, other units of measurement);

Transfer date;

Signatures of the transmitting and receiving person.

Tip 3. Provide storage conditions for property

Art. 239 of the Labor Code of the Russian Federation directly indicates that it will not be possible to recover damage from the employee if the employer has not fulfilled the obligation "to ensure proper conditions for the storage of property entrusted to the employee." What does it mean? The employer needs to create actual obstacles to wealth for outsiders.

For example:

Buying a safe to store cash,

Providing storage facilities with locks on the doors;

Restricting access to warehouses unauthorized persons;

Organization of security at night in the warehouse.

In other words, if the warehouse is a "gateway" for all workers, including those who have nothing to do with it, and the storekeeper will tell about this at the court together with the witnesses, then it will not be possible to recover the shortage from this storekeeper (see .Ruling of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 No. 52).

Tip 4. Record the presence of damage using an inventory

Should any damage be recorded for recovery purposes? Art. 238 of the Labor Code of the Russian Federation indicates that the damage must be direct and actual, that is, a real decrease in property or deterioration of the condition of the property (and not losses or lost profits). For example, a cashier's lack of money in the cash register will be a direct actual damage. And if a manager missed a profitable client and "failed" the conclusion of a contract for millions - this is lost profit, this damage cannot be collected.

The shortage of financially responsible persons (that is, those with whom an agreement on full financial responsibility has been concluded) should be recorded using an inventory. Carrying out an inventory is mandatory not only in a planned manner and when changing financially responsible persons, but also when revealing the facts of theft, abuse, damage to property, as well as in the event of natural disasters and emergencies (clause 27 of the Order of the Ministry of Finance of Russia dated July 29, 1998 No. 34n) ...

It is especially important to conduct an inventory if an employee leaves. The courts insist that the lack of an inventory does not allow to establish the quantity and value of the goods, as well as at what moment the shortage was formed (see, for example, the Appellate ruling of the Lipetsk Regional Court dated February 17, 2014 in case No. 33-415 / 2014). Other documents drawn up by the employer are not recognized as adequate evidence, it is precisely the availability of inventory records both at the time of admission and at the time of dismissal of the person (see, for example, the Appellate ruling of the Rostov Regional Court of 22.04.2013 in case No. 33-4910 / 2013 ).

The inventory must be completed in accordance with Methodical recommendations dated 13.06.1995 No. 49. If the employer violated the procedure for conducting an inventory, then the documents drawn up as a result of such an inventory cannot serve as reliable evidence (see, for example, the Appellate rulings of the Supreme Court of the Republic of Mordovia dated 20.02.2014 in case No. 33-332 / 2014).

Tip 5. Be sure to check on the fact of damage

Such a check is mandatory in accordance with Art. 247 of the Labor Code of the Russian Federation. To carry out the check, first of all, you should issue commission order.

This order requires:

Indicate the basis for the creation of the commission (detection of damage);

Describe what exactly happened;

Specify the terms of the commission's work;

Indicate the need to provide the results of the commission's work to the head.

What is the purpose of the check? Then to prove in court that there are grounds for bringing to financial responsibility. What exactly need to prove- indicates Art. 233 of the Labor Code of the Russian Federation and clause 4 of the Resolution of the Plenum of the Supreme Court of November 16, 2006 No. 52:

The presence of damage (that is, something must be broken, damaged, stolen, and so on);

Committing illegal actions (or omissions) by an employee, that is, violating the norms of legislation or local acts of the company;

The fault of the employee in causing such damage to the employer (intent or negligence);

The presence of a causal link between the actions of the employee and the damage incurred by the employer.

The most important thing in the work of the commission is the demand from the employee written explanation(Article 247 of the Labor Code of the Russian Federation). It is better to give the employee a special notice of the need to provide such explanations. The term for an employee to prepare an explanation of the Labor Code of the Russian Federation is not regulated. Therefore, you can focus on Article 193 of the Labor Code of the Russian Federation, which sets aside two working days for the presentation of explanations. If after this period the employee has not provided explanations, then an act should be drawn up (Article 193 of the Labor Code of the Russian Federation).

Based on the results of the check, it is imperative to draw up commission act... This will be the main document for prosecution. What to indicate in the act of the commission's work, we are prompted by the Resolution of the Plenum of the Supreme Court of November 16, 2006 No. 52, because this will have to be proved in court. Therefore, it is better not to limit yourself to two or three sentences, but to describe the documents studied, the explanations of employees in detail.

The act is signed by all members of the commission. It is necessary to familiarize the employee with the act, against signature. In case of his refusal or evasion from familiarization, a corresponding act is drawn up.

Tip 6. Collect damage out of court only if allowed by law

If the manager, based on the results of the audit, decided to recover the damage, then it is necessary to double-check exactly how to do this in a legal manner.

Please note: the Labor Code of the Russian Federation does not oblige the employer to recover material damage from the employee. Maybe the employee is already quitting, and the management does not want to waste time and effort on the proceedings ...

If the head of the company made a decision to bring the employee to financial liability and recover damages, then such a decision must necessarily be formalized by an order. In this order, you should first indicate the decision to bring the worker to financial responsibility, and the next paragraph indicate the decision to recover the material damage caused. Such an order can be made no later than one month from the date of establishing the amount of damage caused (Article 248 of the Labor Code of the Russian Federation).

The employee must be familiarized with the order against signature. If the employee refuses to get acquainted with the order of engagement, then an appropriate act should be drawn up.

After this, the employer's actions may be different depending on the situation:

1. The worker repents and agree indemnity... Fine! He can deposit money at the cashier or transfer it to the company's account. Sometimes workers turn to the employer with a request to recover the damages from their wages. At the same time, it is possible to discuss the return of the amount in parts, and if the employee leaves the job, it is better to draw up a written commitment to compensate for damage indicating the specific timing of payments (part 4 of article 248 of the Labor Code of the Russian Federation).

2. The employee does not admit his guilt and does not agree to compensate for the damage. But the amount of damage does not exceed his average monthly earnings and the recovery period (one month from the date the amount was established) has not expired. Despite the employee's disagreement, the employer can recover the amount of damage on its own (part 1 of article 248 of the Labor Code of the Russian Federation). In this case, in the order for collection, instruct the chief accountant to withhold the damage from the employee's salary. In this case, the collection should not exceed 29% of the employee's earnings per month (Article 138 of the Labor Code of the Russian Federation). Therefore, it will take five months for the full collection (if the damage is equal to the average earnings).

Before doing this, double-check whether all the measures indicated above have been taken? After all, an employee can go to court, and then all these activities will be checked by the court. If a liability agreement was not concluded, inventories were not carried out, an inspection on the fact of damage was not carried out, it is hardly worth the risk - the court will side with the employee.

3. The employee does not agree to compensate for the damage in the amount of the average monthly earnings, and the recovery period has expired. Or the employee does not agree to compensate for damage in case of damage in excess of the average monthly earnings (regardless of the timing). In this case, the damage can only be recovered in court (part 2 of article 248 of the Labor Code of the Russian Federation) within one year from the date of discovery of the damage caused (article 392 of the Labor Code of the Russian Federation). But you will have to prepare documents for the court, since it is extremely risky to collect from the employee without a court decision in such cases. The employee is likely to go to court - and the court will confirm his case.

Copying and any processing of materials from the site site is prohibited

The labor legislation clearly regulates the rules for bringing workers to financial responsibility. However, judicial practice shows that, despite this, employers make a lot of mistakes when they try to recover from the employee the damage caused to him. Often, the primary goal is to recover the costs incurred by the organization because of the employee. At the same time, neglect of the requirements of the legislation leads to loss of time, litigation and new expenses. Summarizing the jurisprudence, we identified the most typical mistakes that employers make when imposing material responsibility on an employee. Let's talk about them, because it's better to learn from other people's mistakes.

Issues related to the material liability of employees are governed by Art. 238-250 of the Labor Code of the Russian Federation (Chapter 39 of the Labor Code of the Russian Federation).

In accordance with Art. 238 of the Labor Code of the Russian Federation, all employees guilty of causing direct actual damage to the employer are financially liable, that is, they compensate for the damage. However, the limits of such responsibility are not the same for all employees and are determined taking into account the nature and scope of their work duties, differences in official competence, granted rights, etc.

Full liability as an exception

By general rule the material liability of an employee who has caused damage to the employer is limited to the average monthly earnings (Article 241 of the Labor Code of the Russian Federation). It is called limited.

Material liability in full amount of the damage caused shall be imposed on the employee only in the case of:

1) when full financial responsibility is imposed on the employee by law;

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

3) deliberate infliction of damage;

4) causing damage in a state of alcoholic, drug or other toxic intoxication;

5) damage caused as a result of criminal actions of an employee, established by a court verdict;

6) infliction of damage as a result of an administrative violation, if such is established by the relevant state body;

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

8) damage caused not during the performance of the employee's labor duties.

In addition, financial liability in full can be established by an employment contract concluded with the deputy heads of the organization, the chief accountant (Article 243 of the Labor Code of the Russian Federation).

It would seem that labor legislation clearly defines the list of cases when an employee is obliged to compensate the employer for damage in full. Nevertheless, the most common mistake is not to bring limited, but to full liability.

example 1

By order of the employer, P. was hired as a driver-freight forwarder in the transport department of ZAO. On the Yekaterinburg - Kurgan highway, on March 25, 2010, the IZH-27175-036 car belonging to ZAO, under P.'s control, went out of order and received mechanical damage.

The company repaired the car at its own expense. The repair cost 23 304 rubles. 66 kopecks ZAO applied to the court with a demand to recover the full cost of the repair (it exceeded the employee's monthly salary).

From the act of investigation into the circumstances of the vehicle's failure, it follows that driver P. is guilty of causing damage. He did not take timely measures to eliminate the malfunction, did not report it to the management of the CJSC and independently decided on the further operation of the machine.

The materials of the case established that on March 25, 2010 the driver-forwarding agent P. was sent on a business trip to Yekaterinburg for the cargo, accompanied by engineer N. On the way back, a creak was heard from the side of the car's rear axle. The driver stopped, put the car on a jack, removed the right rear wheel and tried to disconnect the brake drum. The attempt was unsuccessful, and P. decided to move on.

In accordance with the job description, the forwarding driver immediately reports to the management about all incidents, thefts, etc. The forwarding driver reports to the head of the transport department.

P. did not notify the head of the garage or the management joint stock company about a serious breakdown of the car and independently decided to continue driving.

This circumstance, in the opinion of CJSC, indicates the presence of the employee's fault in causing damage. However, by a court decision from P. in favor of ZAO, an average monthly salary in the amount of RUR 9,523 was recovered as a partial repayment of the damage. 42 kopecks

The court indicated that the employee should be financially liable within the limits of his average monthly earnings, since there are no grounds for bringing to financial responsibility in full amount of the damage caused.

(From the review judicial practice Kurgan Regional Civil Court for the 2nd half of 2010)

Conclusion: it is possible to bring to full liability only in one of the cases listed in Art. 243 of the Labor Code of the Russian Federation.

A full liability agreement does not guarantee anything

Another common mistake made by an employer is a claim for compensation in full on the basis of a full liability agreement.

Indeed, one of the grounds for collecting damage in full is clause 2 of Art. 243 of the Labor Code of the Russian Federation, that is, the existence of an agreement on full liability. Many employers believe that the existence of such an agreement guarantees the recovery of damage in full, and they forget that the court will refuse such a claim if it turns out that legal grounds for the conclusion of the contract was not.

Such an agreement can only be concluded with an employee who holds a position named in the decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85 "On approval of the lists of positions and jobs replaced or performed by workers with whom the employer can conclude written agreements on full individual or collective (brigade ) material liability, as well as standard forms of agreements on full material liability ”.

According to Art. 244 of the Labor Code of the Russian Federation, written agreements on full individual or collective (brigade) material liability (clause 2 of part 1 of article 243 of the Labor Code of the Russian Federation) for a shortage of property entrusted to employees can be concluded with employees who have reached 18 years of age and directly serve or use monetary, commodity values or other property.

Thus, if there is no position in the said resolution or, in accordance with the job description, the employee does not directly serve valuables and property, the court recognizes the conclusion of an agreement on full material liability as unjustified.

example 2

By the decision of the Chapaevsky City Court of the Samara Region dated 06/18/2009, the organization was denied the claim against the employee for compensation for damage caused in the performance of labor duties. The court found that the employee worked first as a leading specialist and then as a site manager. Despite the fact that an agreement was concluded between the employee and the employer on full liability for the original position, in court the employer did not prove the employee's function for the safety of material values. Job descriptions the leading specialist and the head of the section were absent in the organization at all.

example 3

The employer went to court with a claim against the employee to recover the amount of damage. In support of his claims, the plaintiff referred to the fact that the employee is a financially responsible person.

The courts of first and cassation instances upheld the claim. But the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation overturned the court decisions in the case, sent the case for a new consideration to the court of first instance on the following grounds.

The employee held the position of a specialist production department, additionally fulfilled the duties of driving a car belonging to the organization. However, in the List of positions and jobs replaced or performed by employees, with whom the employer can conclude written agreements on full individual material liability for the shortage of entrusted property, approved by Decree of the Ministry of Labor of Russia No. 85 dated December 31, 2002, the position held by the employee, as well as the work it does is not included.

These circumstances indicate that the agreement on full liability, in principle, could not be concluded with the employee. Such an agreement does not serve as a basis for bringing the employee to full liability. The organization's claims for compensation in full in excess of the employee's average monthly earnings contradict the requirements of the Labor Code of the Russian Federation.

Lists of jobs and categories of workers with whom the said contract can be concluded, as well as standard forms of these contracts, are approved in the manner established by the Government of the Russian Federation. Thus, labor legislation provides for specific requirements, upon fulfillment of which the employer has the right to conclude with individual worker a written agreement on full financial responsibility, a list of positions and works, in the performance of which this agreement can be drawn up, the mutual rights and obligations of the employee and the employer to ensure the safety of material assets transferred under the report.

(Determination in case No. 18-B09-72, from the review of the practice of the Supreme Court of the Russian Federation for the IV quarter of 2009)

Conclusion: violation by the employer of the requirements of the legislation on the procedure and conditions for concluding and executing an agreement on full individual material liability is the basis for releasing the employee from the obligation to compensate the damage caused to the employer's property through his fault in full, exceeding the employee's average monthly earnings.

There is an offense, but there is no damage

Sometimes the employer, without taking into account whether the actual damage has been caused, tries to bring to financial responsibility the employee who violated the rules of implementation labor functions or has committed another offense of doing official duties.

example 4

Satisfying the requirements of the LLC, the court proceeded from the fact that L., an employee of the company, with whom an agreement on full liability was concluded, caused damage to the LLC as a result of the issuance of funds from the cash desk in violation of the rules of conduct cash transactions, established by the Federal Law "On Accounting", and the Procedure for conducting cash transactions in the Russian Federation, approved by the decision of the Board of Directors of the Central Bank of the Russian Federation of 22.09.93 No. 40. At the same time, the court did not take into account Art. 238, 242 and 243 of the Labor Code of the Russian Federation. Based on these norms, the damage caused to the employer is compensated by the employee in full if the existence of direct actual damage is proven.

Meanwhile, as follows from the explanations of the representatives of the LLC, the fact of causing direct actual damage was not established, since none of the persons to whom the funds were issued according to the statements and cash expenditure orders did not apply to the company with a demand for the payment of the amounts due to them.

The LLC's claim for damages was based only on the fact of violation by the employee of the rules for conducting cash transactions, according to which the withdrawal of money from the cash register, which was not confirmed by the receipt of the recipient in the invoice cash voucher or another document replacing it, was not accepted as an excuse, it was considered a shortage and was collected from the cashier.

The cassation instance did not support the position of the first instance court and refused to satisfy the claim for bringing to financial responsibility.

(Determination of the Perm Regional Court dated 03.08.2010 No. 33-5964)

Conclusion: the basis for imposing material liability on the employee is the establishment of the fact of causing direct actual damage through his fault.

Civil liability is not applicable in labor relations

The employer often includes in the claim claims based on the norms of the Civil Code of the Russian Federation, for example, along with the requirement to compensate for damage, imputes to the employee interest for the use of others in cash or lost income (lost profits).

Here we must remember that at the same time apply the norms of labor and civil law to the relationship that has developed between the employer and the employee is possible only in the cases specified in the law. So, in part 2 of Art. 277 of the Labor Code of the Russian Federation established that in the cases provided for by federal laws, the head of the organization reimburses the organization for losses caused by his guilty actions. In this case, losses are calculated in accordance with the norms enshrined in civil law. In all other cases, it is unacceptable to apply the norms of civil legislation to labor legal relations. According to Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for the direct actual damage caused to him. Lost income (lost profits) are not collected from the employee.

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 compensation for damage caused by the employee to third parties.

example 5

An individual entrepreneur took K. to the position of a legal adviser with a salary of 5,000 rubles. The employee took up her duties. She received 45,000 rubles from the box office. on an expense cash order for the conclusion of an agreement with JSC Russian Railways for the supply of wagons to the railway sidings used by the plaintiff for entrepreneurial activity... K. did not report for the funds received under a one-time document, she did not provide evidence of the spending of funds for their intended purpose.

Employer - individual entrepreneur went to court with a demand to recover damages and interest from the employee for the use of other people's funds.

By the decision of the district court, the claims of the individual entrepreneur were partially satisfied. From K. 45,000 rubles were collected, interest in the amount of 800 rubles, the return of the state duty was 1474 rubles. However, the cassation instance overturned the decision regarding the collection of interest from K. in the amount of RUB 800. and state fees.

The Regional Court concluded that when resolving the dispute on compensation for damage, the first instance court came to a well-founded conclusion that the employee was to recover 45,000 rubles, and was correctly guided by the provisions of Art. 238 and 243 of the Labor Code of the Russian Federation, regulating legal relations for compensation for damage caused by an employee. However, when collecting interest for the use of someone else's money in the manner of Art. 395 of the Civil Code of the Russian Federation in the amount of 800 rubles. substantive law was applied incorrectly. The court did not consider that labor Relations are not regulated by the norms of the Civil Code of the Russian Federation, and the provisions of the Labor Code of the Russian Federation to be applied do not provide for the collection of the specified interest from the employee. According to Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer only for the direct actual damage caused to him.

(Determination of the Perm Regional Court in case No. 33-1708 / 2010)

Sometimes confusion in the application of the norms of the Labor Code of the Russian Federation and the Civil Code of the Russian Federation is associated with the harm caused by the employee not to the property of the employer, but to third parties. The fact is that, having compensated the damage to third parties, the employer has the right to file a recourse claim against the employee, that is, to recover from him the damage that he has already compensated. Damage to third parties in such a situation is compensated for according to the rules of civil law. The employer, believing that civil law can be applied to recover damages from the employee, tries to do this without taking into account the specifics of labor legislation.

The very concept of a recourse claim is a civil law category. Article 1081 of the Civil Code of the Russian Federation provides an employer who has compensated for harm caused by another person (an employee in the performance of official, official or other labor duties, a person managing vehicle, etc.), the right of recourse (recourse) to this person in the amount of the compensation paid, unless a different amount is established by law.

Clause 15 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of November 16, 2006 No. 52 "On the Application by Courts of Legislation Regulating the Material Liability of Employees for Damage Caused to the Employer" explains that damage caused by the employee to third parties should be understood as all amounts paid by the employer to third parties in indemnification account. It turns out that the norms of the Labor Code on compensation for harm to third parties by the employer for harm caused by the employee correspond to the norms of the Civil Code of the Russian Federation and recourse requirements are based on both legislation.

It is important that the norms of the Labor Code of the Russian Federation also apply to recourse claims, that is, from an employee, in a recourse procedure, you can recover damage in full only in the cases provided for in Art. 243 of the Labor Code of the Russian Federation.

example 6

The employer filed a claim against the employee for damages by way of recourse. The court found that the employee, driving a ZIL-431410 car, drove into the oncoming lane. There was a collision with a VAZ-2106 car, the driver of which died from his injuries. The traffic police found the employee guilty of an accident. By the decision of the district court Chelyabinsk region the criminal case opened against the employee was dropped due to the reconciliation of the accused with the victim's representative. By the decision of the city court, compensation for moral damage in the amount of 80,000 rubles was collected from the employer in favor of the victim.

By the decision of the first and cassation instances, 40,000 rubles were recovered from the employee in favor of the employer, as well as court costs. But the Supreme Court of the Russian Federation overturned these decisions, indicating that there was no final conviction in a criminal case against the employee. This means that there are no grounds for bringing the employee to full financial responsibility.

(Definition of the RF Armed Forces dated 01.08.2008 No. 48-B08-7)

Conclusion: damage caused by an employee is compensated only on the basis of labor legislation.

The ratio of administrative and material responsibility

The employer is mistaken in thinking that having paid a fine for an administrative offense, he can collect the amount of the fine from the employee within the framework of full financial liability. This is justified by the fact that the organization was brought to administrative responsibility through the fault of the employee.

example 7

JSC filed a lawsuit against its employee for damages in the amount of 40,000 rubles. The claims are motivated by the fact that for committing an administrative offense the company was brought to administrative responsibility in the form of a fine in the amount of 40,000 rubles. The plaintiff considered that the damage in the form of payment of an administrative fine was caused as a result of improper performance of labor duties of the store manager, whose duties include meeting the deadlines for the sale of goods and with whom an agreement on full liability was signed.

The court concluded that since the store manager was not brought to administrative responsibility, it is impossible to recover the damage in full. You can only recover damages in the amount of average earnings, that is, apply limited liability.

(Supervisory practice of the Supreme Court of the Republic of Karelia // Bulletin of the Supreme Court of the Republic of Karelia. 2008. No. 1 (18))

Conclusion: a financially responsible employee cannot be held fully financially liable in connection with the infliction of damage in the form of collecting a fine from the organization, imposed on the organization in an administrative manner.

As of: 02.04.2007
Magazine: Handbook of a personnel officer
Year: 2007
Author: Bondarenko Elvira Nikolaevna
Topic: Limited liability of the employee, Full liability
Heading: Personnel practice

As you know, one of the goals of labor legislation is to protect the rights and interests of employees and employers (part 1 of article 1 of the Labor Code of the Russian Federation). The fulfillment by the employee of his obligations under the employment contract guarantees the protection of the employer's rights, including the right to property. An employee who has caused damage to the property of the employer (including property of third parties held by the employer, if he is responsible for the safety of this property) or property of other employees is obliged to compensate it. This obligation is named in Art. 21 of the Labor Code of the Russian Federation among the main ones and follows from Art. 8 of the Constitution of the Russian Federation, which provides for equal protection of all forms of ownership. Art. 232-250 of the Labor Code of the Russian Federation.

Establishing such a seemingly strict obligation of the employee to the employer, especially considering their inequality in property, the legislator, nevertheless, considered it possible in a certain sense to alleviate the employee's situation, despite the offense he committed. So, as a general rule, the employee is obliged to compensate the employer only for direct actual damage. Unearned income (lost profits) are not collected from him (Article 238 of the Labor Code of the Russian Federation). There are also a number of statutory provisions that are sparing for the employee.

The main type of material liability of an employee is limited, within the limits of the average monthly earnings (Article 241 of the Labor Code of the Russian Federation); in st. 239 of the Labor Code of the Russian Federation, circumstances have been established that exclude his financial liability; the employer, with some exceptions, has the right to refuse to recover damages from the employee (Article 240 of the Labor Code of the Russian Federation).

If the employee still bears full financial responsibility, then only in cases specified by law, and again, as a rule, for direct actual damage. There are other circumstances in the legislation, the consideration of which should mitigate the employee's obligation to compensate for the damage caused to him.

Nevertheless, the property damage caused to the employer, however that may be, must be compensated. First of all, the employer must determine the amount of damage caused by the employee and establish the reasons for its occurrence (Articles 246 and 247 of the Labor Code of the Russian Federation) * This is his duty, failure to comply with which excludes the possibility of compensation for damage.

Verification - necessary condition material responsibility of the employee. In addition, the employer is obliged to request a written explanation from the employee. This is done in order to find out the cause of the damage and thereby determine the fault of the employee. If the employee evades giving an explanation, an appropriate act is drawn up.

compensation options

When the amount and cause of the damage has been clarified, it is necessary to determine how it will be compensated.

There are several procedures for compensation for damage by an employee:
- when the fact of infliction of damage is recognized by him and he is ready to compensate it voluntarily;
- when the employee does not agree with the fact of causing damage or its size and applies to the labor dispute resolution body - judicial (controversial) procedure;
- when the damage is recovered by the employer from the employee, regardless of the consent of the latter, in an indisputable manner. In this case, the employee is also not deprived of the right to appeal against the employer's decision, but this is already post factum.

Voluntary compensation by an employee of damage- full or partial - 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 cashier. 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 the employee does not fulfill his obligation or leaves, the debt is collected in court.

Procedure for recovering damage from a guilty employee by order of the employer provided for by Art. 248 of the Labor Code of the Russian Federation. Withholding from the employee's salary certain amounts, the employer must meet certain conditions.

First of all, in this order, damage can be recovered that does not exceed the employee's average earnings. That is, if the employee bears limited financial liability, exactly this procedure applies, unless, of course, the damage is compensated voluntarily. But even in the case of full financial liability, if the amount of damage caused is not more than the average earnings, it can be recovered under Art. 248 of the Labor Code of the Russian Federation. Thus, to determine the procedure for compensating the employee for damage what matters is not the type of liability, but the amount of damage caused.

Another condition is the collection period established by law. The order must be made no later than one month from the date of the final determination of the amount of damage by the employer.

Finally, a withholding order is given to an employee who continues to work for the employer. 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, subparagraph "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 by the Federal Law of 30.06.06 No. 90-FZ. In the part that does not contradict the Labor Code of the Russian Federation, the Regulation on the specifics of the procedure for calculating the average wage, approved. Decree of the Government of the Russian Federation of 11.04.03 No. 213

Foreclosure cannot be levied on sums of money paid:
1) in compensation for harm caused to health, as well as in compensation for harm to persons who have suffered damage as a result of the death of the breadwinner;
2) persons who have received injuries (injuries, trauma, contusion) in the performance of their official duties, and members of their families in the event of death (death) of these persons;
3) in connection with the birth of a child; mothers with many children; single father or mother; for the maintenance of minor children during the search for their parents; to retirees and disabled people of the 1st group to care for them; victims of additional food, spa treatment, prosthetics and the cost of caring for them in case of harm to health; on alimony obligations;
4) for work with harmful conditions labor or in extreme situations, as well as citizens exposed to radiation as a result of disasters or accidents at nuclear power plants, and in other cases, established by law RF;
5) organization in connection with the birth of a child, with the death of relatives, with the registration of marriage, as well as severance pay payable upon dismissal of an employee (Article 69 of the Federal Law of 21.07.97 No. 119-FZ "On Enforcement Proceedings"; hereinafter - the Law on Enforcement Proceedings).

Compensation for damage is made regardless of whether the employee is brought to disciplinary, administrative or criminal liability (part 6 of article 248 of the Labor Code of the Russian Federation). Thus, a combination of sanctions is possible.

Note!

It is possible to simultaneously bring an employee to material and disciplinary or (criminal or administrative) liability

Article 240 of the Labor Code of the Russian Federation gives the employer the right to refuse to recover damages from the employee. However, the owner of the organization's property may restrict this right in cases stipulated by federal laws, other regulatory legal acts of the Russian Federation, laws, other regulatory legal acts of the constituent entities of the Russian Federation, regulatory legal acts of bodies local government, the constituent documents of the organization. This is also stated in the resolution of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 No. 52 "On the application by courts of legislation regulating the material liability of employees for damage caused to the employer."

The Labor Code of the Russian Federation provides for and general order when it is possible to deduct an employee from wages by order of the employer - on what grounds and within what limits (Articles 137 and 138). The establishment of such a procedure is the most important guarantee for the remuneration of the employee (Article 130 of the Labor Code of the Russian Federation) and, in general, the most important guarantee of his labor rights

. indisputable deduction from wages

The employee's obligations for which deduction from his wages is possible can be conditionally divided into the following:
1) obligations to the state (for example, clause 4 of article 226 of the Tax Code of the Russian Federation: withholding by a tax agent of the amount of income tax individuals; Art. 43 of the Criminal Executive Code of the Russian Federation: withholding from earnings of a person sentenced to correctional labor, the amounts established by the court verdict);
2) obligations to third parties: compensation for harm caused to the health of another person, compensation for harm to persons who suffered damage in connection with the death of a breadwinner, compensation for damage caused by a crime (Article 138 of the Labor Code of the Russian Federation), as well as withholding alimony on the basis of a writ of execution or a notarized agreement on the payment of alimony (Article 109 of the Family Code of the Russian Federation). In these cases, the deductions are made in an indisputable manner.

An indisputable order is provided for withholding the damage caused, but, as mentioned above, with certain conditions. In the case of reimbursement of an unused advance paid to an employee on account of wages (paragraph 1 of part 2 of article 137 of the Labor Code of the Russian Federation), the retention period is not established. What is considered the maturity of the debt (repayment of the advance) in this case? After all, it is not supposed to return this advance, so to speak, in kind, but to work it off.

The term in this case is determined by the situation itself: the employee is given an advance against his salary, for example, for the current month. The month has been worked out - it means that the debt has been paid off. Consequently, the deadline for carrying out the withholding must be counted from the end of the month for which the salary will be calculated.

True, it is not very clear how the employer should find out that the employee does not dispute the grounds and amounts of deductions. The ideal situation is when the employee knows that the employer is going to withhold some amount from his salary, and does not dispute (or disputes) this fact. However, in most cases, the employee learns about the fact and the amount of the deduction already when it is made.

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 on such and such a basis and in such and such an amount (that is, 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 not considered to dispute the retention until he notifies the employer.

recovery of damage under certain conditions

In the following cases, although deductions are made, but in compliance with a monthly period and provided that the employee does not dispute their basis and amount:
1) to pay off an unspent and timely not returned advance payment issued in connection with a business trip or transfer to another job in another locality, as well as in other cases. If the employee does not report for the business trip in a timely manner, within three days, the accountable amounts may be withheld from him. However, in the event that the employee pays off the debt (even if the term is violated), the employer is obliged to reimburse them;
2) for the return of amounts overpaid to the employee due to counting errors, as well as amounts overpaid to the employee, if the body for consideration of individual labor disputes recognizes the employee's guilt in failure to comply with labor standards (part 3 of article 155 of the Labor Code of the Russian Federation) or simple (part 3 Article 157 of the Labor Code of the Russian Federation). Counting is understood as an arithmetic error;
3) upon dismissal of an employee before the end of the working year, on account of which he has already received an annual paid vacation, for unworked vacation days. Withholding for these days is not made if the employee is dismissed on the grounds provided for in clause 8 of part 1 of Art. 77 or pp. 1, 2 or 4 h. 1 tbsp. 81, pp. 1, 2, 5, 6 and 7 st. 83 of the Labor Code of the Russian Federation. The employer's right to go to court in this case does not contain either the Labor Code of the Russian Federation (Article 391), or the Rules on regular and additional vacations (clause 2), approved by the National Committee of the USSR on April 30, 30, No. 169 and acting in part that does not contradict the Labor Code of the Russian Federation. However, in paragraph 1 of Art. 3 of the Code of Civil Procedure of the Russian Federation states that the person concerned has the right to apply to the court for the protection of violated or disputed rights, freedoms or legitimate interests... Finally, Art. 8 of the Constitution of the Russian Federation establishes equal protection for all forms of ownership;
4) if the salary was paid to the employee in excess in connection with his illegal actions established by the court. In this case, it does not matter whether the employee is brought to any kind of legal liability.

deduction limits

Article 138 of the Labor Code of the Russian Federation establishes the limits for deduction from wages.

The total amount of all deductions for each payment of wages cannot exceed 20%, and in cases stipulated by federal laws - 50% of the wages owed to the employee.

Note!

When deducting from wages under several executive documents, the employee must, in any case, retain 50% of wages

According to Art. 66 of the Law on Enforcement Proceedings, deductions from wages and other types of income of the debtor are made to a limited extent in the following cases:
1. When executing the court order of the debtor, no more than 50% of the wages and payments and disbursements equivalent to it may be withheld until the full repayment of the amounts recovered.
2. When deducting from wages and equivalent payments and disbursements under several executive documents, the employee must retain 50% of the wages.
3. Limitations on the amount of deduction from wages and payments and benefits equivalent to it, established by paragraphs. 1 and 2 of this article shall not apply in the recovery of alimony for minor children, compensation for harm caused to health, compensation for harm to persons who have suffered damage as a result of the death of a breadwinner, and compensation for damage caused by a crime. In these cases, the amount of deductions from wages and equivalent payments and disbursements may not exceed 70%.
4. The rules established by this article shall also apply to the acquisition of a claim on scholarships, pensions, remuneration due to the debtor for the use by the author of his copyright, the right to discovery, invention, for which copyright certificates have been issued, as well as for rationalization proposal and the industrial design for which the certificates have been issued.

Working relationships are often associated with the negligent attitude of the parties to each other's property. An employee who becomes guilty of causing damage to the employer is obliged to compensate for the loss, just as the employer is liable to indemnity. Recovery of material damage by an employer from an employee is a procedure that requires mandatory compliance with the norms of the Labor Code of the Russian Federation.

Grounds for recovering damage from an employee

Material liability of an employee arises if he:

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

Any violations in legal behavior that caused damage to the employer's property are considered illegal acts (Article 8 of the Labor Code of the Russian Federation).

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

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

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

• The irresistible force of circumstances (Article 401 of the Civil Code of the Russian Federation - natural disasters, fires, floods, etc.);
• Business risks of a normal nature (inability to perform work in a different way);
• Extreme necessity (including forced defensive actions);
• Lack of appropriate conditions necessary for the handling of the property of the employer.

In the presence of such circumstances, disciplinary or pecuniary punishment by the employer is impossible.

Amount of penalties

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

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

The employer always retains the right to reduce the damage to be recovered from the employee, or to refuse to recover.

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

Procedure for recovering damage caused by an employee

The procedure for recovering material damage from an employee is subject to the algorithm enshrined in legislation:

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

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

• The amount of damage is higher than the employee's salary;
• The management did not react on time to the damage inflicted, within 1 month. from the moment of infliction, no decree on collection has been issued;
• Recovery of damage is carried out from a dismissed employee who left the organization before the payment is set, or who has not paid the amount of damage in full.

The video discusses the details of the liability of employees

Recovery from dismissed employees

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

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

Useful information when recovering damage from an employee
Certain nuances used when concluding a contract, during the work process or when material damage is detected, will help to promptly and competently collect funds from employees:

• An employment contract of full financial responsibility is concluded with financially responsible employees (Article 243 of the Labor Code of the Russian Federation).
• It is not possible to claim reimbursement from non-financially responsible employees (typically employees under 18 years of age).
• You cannot demand compensation from only one employee if a group of employees is guilty of the damage (Article 245 of the Labor Code of the Russian Federation).
• Use of improper storage and operation conditions of property through the fault of the employer. It is impossible to claim compensation for damage (Article 239 of the Labor Code of the Russian Federation).
• It is not enough to detect the occurrence of damage. To recover funds, it is necessary not only to prove the existence of damage, but also to assess its size (Articles 246 and 247 of the Labor Code of the Russian Federation).
• You cannot demand compensation from an employee if the damage arose involuntarily (Article 239 of the Labor Code of the Russian Federation).
• Bringing an employee who committed a crime to full liability (Article 243 of the Labor Code of the Russian Federation) in cases where a court decision has not yet entered into force is impossible.
• You cannot demand compensation in excess of the damage caused (Article 246 of the Labor Code of the Russian Federation).
• The employer should not demand the return of the surplus in wages, without having legislative rights to do so (Article 137 of the Labor Code of the Russian Federation).
• An employer who has missed the limitation period for recovering material damage from an employee does not have the right to put forward claims for compensation (Article 248 of the Labor Code of the Russian Federation).

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