Types of liability full and limited.
Limited liability is the obligation of the employee to compensate the direct actual damage caused to the employer, but not more than the maximum limit established by law, determined in relation to the amount of wages he receives (Letter of Rostrud dated 10/19/2006 N 1746-6-1). This limit is the average monthly earnings (Article 241 of the Labor Code of the Russian Federation). It is determined in accordance with Art. 139 of the Labor Code and the Regulations on the peculiarities of the procedure for calculating the average wage, approved by Decree of the Government of the Russian Federation of April 11, 2003 N 213.
If full liability arises in the cases provided for in Art. 243 of the Labor Code, limited liability applies to all employees with whom an agreement on full liability has not been concluded.
The most typical cases of limited liability are the loss of documents, loss of instruments and tools, damage to the organization's property through negligence.
Full liability
The list of situations where the employee is held liable in the full amount of the damage caused is given in Art. 243 of the Labor Code of the Russian Federation:
When, in accordance with the Code or other federal laws, the employee is held liable in full for damage caused to the employer in the performance of labor duties by the employee;
In cases:
shortage of valuables entrusted to the employee on the basis of a special written agreement or received by him under a one-time document,
intentional damage,
disclosure of information constituting a legally protected secret (state, official, commercial or other), in cases provided for by laws;
When causing damage:
in a state of alcoholic, narcotic or other toxic intoxication,
as a result of an administrative offense, if such is established by the relevant state body,
as a result of the employee's criminal actions established by a court verdict,
not in the performance of work duties by the employee.
Liability for the full amount of damage caused to the employer can be established by an employment contract concluded with the deputies of the head of the organization, the chief accountant
Collective liability
In cases where it is impossible to determine the responsibility of each employee for causing damage and conclude an agreement with him on compensation for damage in full, collective (team) liability may be introduced. Collective (team) liability can be introduced if the following conditions are simultaneously met (part 1 of article 245 of the Labor Code of the Russian Federation):
Employees jointly perform certain types of work related to the storage, processing, sale (vacation), transportation, use and other use of the values transferred to them;
It is impossible to distinguish between the responsibility of each employee for causing damage.
The list of works, during the performance of which there may be full collective liability for the lack of property entrusted to employees, and the Standard form of the contract are approved by Resolution N 85. The specified List of positions and works is exhaustive and is not subject to broad interpretation (Letter of Rostrud dated 10/19/2006 N 1746-6 -one).
An agreement on collective liability is concluded between the employer and all members of the team (part 2 of article 245 of the Labor Code of the Russian Federation).
When concluding an agreement on collective liability, the following procedures must be consistently carried out:
Issue an order, which should indicate the staff of the structural unit (team, team);
Issue an order on the appointment of the head of the team (in the temporary absence of the head, his duties are assigned to one of the members of the team);
Draw up an agreement in two copies, one of which will be kept by the employer, and the second - by the head of the team.
When leaving the team of individual employees or hiring new employees, the contract is not renegotiated. In these cases, it is enough to indicate the date of departure opposite the signature of the retired employee. Newly hired employees sign an agreement and indicate the date of joining the team. If the head of the team changes or its staffing is updated by more than 50% of the original list, the contract is renegotiated.
Financial liability for damage caused to the employer
(organization, enterprise, institution and individual entrepreneur) can be carried by any employee - both an ordinary and a manager. The fundamental legislative act that determines the obligation of the employee to compensate for the damage caused to the employer is the Labor Code of the Russian Federation, which in Ch. 39 "The material liability of the employee" establishes what kind of damage is subject to compensation and under what conditions the employee is obliged to compensate for this damage. In addition, the Labor Code of the Russian Federation defines the limits and procedure for recovering damages, provides for guarantees when imposing liability on an employee, as well as the right of the employer to refuse to recover damages. Knowledge of the provisions of the Labor Code of the Russian Federation will allow the heads of organizations and individual entrepreneurs to correctly determine the cases of application of one or another type of liability, its limits, as well as the guilt of a particular employee (employees) on whom it is assigned.
According to Part 1 of Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate for the direct actual damage that he caused to the employer.
Material liability for damage caused to the employer is assigned to the employee only if the damage was caused by his fault. In full, only those employees with whom a written agreement on is indemnified. Responsibility for the damage caused is not removed from the employee even after the termination of the employment relationship, if the damage was caused during the validity of the employment contract. Liability implies the deduction of funds from the employee to compensate for the material damage caused to him in the manner and amount established by the Labor Code of the Russian Federation. When determining the amount of damage, only direct actual damage is taken into account and the lost income that the employer could have received, but did not receive as a result of the illegal actions of the employee, is not taken into account. lost profit. Direct actual damage is understood as a real decrease (deterioration) of the employer's cash 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 for the restoration or acquisition of property.
The amount of damage is calculated on the basis of market prices in force in the area on the day the damage was caused. But it cannot be lower than the residual value of the lost or damaged property according to accounting data. When determining damage, actual losses within the established norms of natural loss are not taken into account.
Material damage is not recovered from the employee if it arose as a result of force majeure - an extraordinary and unavoidable event, the elimination of a danger threatening a person, due to necessary defense. Liability also does not arise if the employer himself fails to fulfill his obligations to ensure proper conditions for the storage of property entrusted to the employee (Article 239 of the Labor Code of the Russian Federation). Thus, labor law expressly provides that an employee can be considered guilty
in causing damage, if his actions are committed intentionally or through negligence, i.e. illegal. Particular attention should be paid to the provision of art. 240 of the Labor Code of the Russian Federation, which provides for the right of the employer, at its discretion, to decide on the issue of bringing the employee to liability: to recover from him the cost of damage or to completely or partially refuse to recover from the guilty employee the damage caused by him.
In the event that the employer decides to recover from the employee the damage caused by him, then his compensation is made in the amount of two types of material liability provided for by labor legislation - limited and full (Articles 241, 242 of the Labor Code of the Russian Federation).
At limited liability the damage is compensated in the amount not exceeding the average monthly earnings of the employee. That is, the smaller of the two amounts is selected: if the damage is less than the salary, it will be fully reimbursed. If the salary is less than the damage, an amount equal to the salary is recovered, i.e. part of the damage will not be reimbursed. And this is a general rule. Full liability is an exception and is possible only for those employees who directly serve or use monetary, commodity values or other property. At full liability damages are indemnified without any restrictions, but this type of liability can be applied only in the cases provided for by Art. 243 of the Labor Code of the Russian Federation:
1) when, in accordance with the Labor Code of the Russian Federation or other federal laws, the employee is held liable in full for damage caused to the employer in the performance of labor duties by the employee;
2) shortage of valuables entrusted to the employee on the basis of a special written agreement or received by him under a one-time document;
3) intentional infliction of damage;
4) causing damage in a state of alcoholic, narcotic or toxic intoxication;
5) causing damage as a result of the criminal actions of the employee, established by a court verdict;
6) causing damage as a result of an administrative offense, if such is established by the relevant state body;
7) disclosure of information constituting a legally protected secret (official, commercial or other), in cases provided for by federal laws;
8) infliction of damage not in the performance of labor duties by the employee.
Persons under the age of 18 can only be fully liable for intentionally causing damage while under the influence of alcohol, drugs or toxic substances, as well as for damage caused as a result of a crime or administrative offense (for example, in case of criminal liability for theft).
When accepting employees for certain positions or work related to the maintenance of monetary, commodity values, the heads of organizations (individual entrepreneurs) must conclude agreements with them on full individual or collective (team) liability (part 1 of article 244 of the Labor Code of the Russian Federation). If material liability is established by federal law, then in this case it is not required to conclude an agreement on full material liability.
Decree of the Ministry of Labor and Social Development of the Russian Federation dated December 31, 2002 No. 85 approved the Lists of positions and works replaced or performed by employees with whom the employer can conclude written agreements on full individual or collective (team) liability (hereinafter - the Lists), as well as Standard forms of agreements on full liability1. Employers should be guided by the Lists when concluding agreements on full liability, both individual and collective. Collective (brigade) full liability for causing damage to the employer is provided for in Art. 245 of the Labor Code of the Russian Federation. Contracts can be concluded in organizations of any organizational and legal forms and forms of ownership. Agreements on full liability may be concluded with the employees specified in the Lists, subject to the obligatory presence of the following conditions:
- the employee reaches the age of 18;
- direct transfer of monetary, commodity values or other property for storage, processing, sale (vacation), transportation or use in the production process, i.e. for service or use.
Lists of positions and works replaced or performed by employees with whom the employer can conclude written agreements on full liability for the shortage of entrusted property are not subject to extended interpretation. When combining professions (positions), an agreement may be concluded with an employee if the main or combined profession (position) is provided for in the Lists. An agreement on full liability concluded with an employee whose position (job) is not in the Lists has no legal force.
An employee who has entered into an agreement on full liability with a private entrepreneur is fully responsible for ensuring the safety of those values that he personally received according to an invoice or other accounting document, despite the fact that in some cases other persons also have access to these values (for example, , auxiliary workers).
An agreement on full liability is concluded with an employee on the basis of an employment contract and an order in a standard form2 approved by the Decree of the Ministry of Labor and Social Development of the Russian Federation of December 31, 2002 No. 85. It specifies the obligations of the employee and the employer to ensure the safety of valuables. Failure by the employer to fulfill the obligations to ensure proper conditions for the storage of property entrusted to the employee is the basis for relieving the employee from liability, and in appropriate cases, for imposing the obligation to compensate for the damage on the guilty manager, his deputy or chief accountant.
The contract between the manager and the employee is drawn up and signed by the parties in two copies, one of which is with the administration, the second - with the employee. A prerequisite for the validity of the contract is the date of its conclusion, since from that moment the contract enters into force, and the employee becomes liable for the failure to preserve the values entrusted to him. For the shortage formed before the transfer of values, the employee is not responsible. In the absence of the date of conclusion of the contract, the latter is considered invalid.
The effect of the concluded agreement on full liability extends to the entire time of work with the material assets entrusted to the employee. A financially responsible employee, in accordance with the contract, must promptly report all circumstances that threaten the safety of the property entrusted to him, keep records, draw up and submit to the accounting department commodity-money and other reports on the balances and movement of the property entrusted to him (commodity reports). At enterprises where commodity reports are not kept, transactions of the movement of values are recorded in the accounting registers of the accounting department according to primary documents submitted by financially responsible persons.
A financially responsible person must participate in the inventory of the values entrusted to him, and the administration of the employer company is obliged to create conditions for the employee for normal work and ensure the complete safety of the values \u200b\u200bentrusted to him, to acquaint him with the current legislation on liability, as well as other regulations on the procedure for storing, receiving , processing, selling, dispensing, transporting and other transactions with valuables.
The employee is not liable if the damage from the shortage or damage to valuables occurred through no fault of his. This condition must be specified in the contract. In addition, this agreement provides for full liability only for the shortage and damage to valuables. In all other cases, the damage is compensated in accordance with the provisions of the Labor Code of the Russian Federation on limited liability.
The employee is obliged to compensate the employer for the direct actual damage caused to him. Unreceived income (lost profit) is not subject to recovery from the employee.
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 three is no longer valid. - Federal Law of June 30, 2006 N 90-FZ.
Article 239. Circumstances excluding material liability of an employee
The material liability of the employee is excluded in cases of damage due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer's failure to fulfill the obligation to ensure proper conditions for the storage of property entrusted to the employee.
Article 240
The employer has the right, taking into account the specific circumstances under which the damage was caused, to fully or partially refuse to recover it from the guilty employee. The owner of the property of the organization may restrict the said right of the employer in cases provided for by federal laws, other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation, regulatory legal acts of local governments, constituent documents of the organization.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Article 241. Limits of material liability of an employee
For the damage caused, the employee shall be liable within the limits of his average monthly earnings, unless otherwise provided by this Code or other federal laws.
Article 242. Full liability of an employee
The full liability of the employee consists in his obligation to compensate the direct actual damage caused to the employer in full.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Liability in the full amount of the damage caused may be imposed on the employee only in cases provided for by this Code or other federal laws.
Employees under the age of eighteen bear full liability only for intentionally causing damage, for damage caused in a state of alcoholic, narcotic or other toxic intoxication, as well as for damage caused as a result of a crime or administrative offense.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Article 243. Cases of full liability
Liability in the full amount of the damage caused is assigned to the employee in the following cases:
1) when, in accordance with this Code or other federal laws, the employee is held liable in full for damage caused to the employer in the performance of the employee's labor duties;
2) shortage of valuables entrusted to him on the basis of a special written agreement or received by him under a one-time document;
3) intentional infliction of damage;
4) infliction of damage in a state of alcoholic, narcotic or other toxic intoxication;
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
5) causing damage as a result of the criminal actions of the employee, established by a court verdict;
6) causing damage as a result of an administrative offense, if such is established by the relevant state body;
7) disclosure of information constituting a legally protected secret (state, official, commercial or other), in cases provided for by federal laws;
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
8) infliction of damage not in the performance of labor duties by the employee.
Liability in the full amount of the damage caused to the employer can be established by an employment contract concluded with the deputies of the head of the organization, the chief accountant.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Article 244. Written agreements on the full liability of employees
Written agreements on full individual or collective (team) liability (clause 2 of part one of Article 243 of this Code), that is, on compensation to the employer for damage caused in full for the lack of property entrusted to employees, may be concluded with employees who have reached the age of eighteen years and directly serving or using monetary, commodity values or other property.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
The lists of works and categories of employees with whom these contracts may be concluded, as well as standard forms of these contracts, are approved in the manner established by the Government of the Russian Federation.
Article 245
When employees jointly perform certain types of work related to the storage, processing, sale (vacation), transportation, use or other use of the values transferred to them, when it is impossible to distinguish between the responsibility of each employee for causing damage and conclude an agreement with him on compensation for damage in full, collective (brigade) liability may be introduced.
A written agreement on collective (team) liability for damage is concluded between the employer and all members of the team (team).
Under an agreement on collective (brigade) material liability, valuables are entrusted to a predetermined group of persons who are fully liable for their shortage. To be released from liability, a member of the team (team) must prove the absence of his guilt.
In case of voluntary compensation for damage, the degree of guilt of each member of the team (team) is determined by agreement between all members of the team (team) and the employer. When recovering damages in court, the degree of guilt of each member of the team (team) is determined by the court.
Article 246. Determining the amount of damage caused
The amount of damage caused to the employer in the event of loss and damage to property is determined by actual losses calculated on the basis of market prices in force in the area on the day the damage was caused, but not lower than the value of the property according to accounting data, taking into account the degree of wear and tear of this property.
The federal law may establish a special procedure for determining the amount of damage to be compensated caused to the employer by theft, deliberate damage, shortage or loss of certain types of property and other valuables, as well as in cases where the actual amount of damage caused exceeds its nominal amount.
Article 247
Before making a decision on compensation for damages by specific employees, the employer is obliged to conduct an audit to determine the amount of damage caused and the reasons for its occurrence. To conduct such an inspection, the employer has the right to create a commission with the participation of relevant specialists.
Requesting a written explanation from the employee to establish the cause of the damage is mandatory. In case of refusal or evasion of the employee from providing the specified explanation, an appropriate act is drawn up.
(Part two as amended by Federal Law No. 90-FZ of June 30, 2006)
The employee and (or) his representative have the right to get acquainted with all the materials of the inspection and appeal against them in the manner prescribed by this Code.
Article 248. Procedure for recovery of damage
Recovery from the guilty employee of the amount of damage caused, not exceeding the average monthly earnings, is carried out by order of the employer. The order may be made no later than one month from the date of the final determination by the employer of the amount of damage caused by the employee.
If the one-month period has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer, and the amount of damage to be recovered from the employee exceeds his average monthly earnings, then recovery can only be carried out by the court.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
If the employer fails to comply with the established procedure for recovering damages, the employee has the right to appeal against the actions of the employer in court.
An employee who is guilty of causing damage to the employer may voluntarily compensate for it in whole or in part. By agreement of the parties to the employment contract, compensation for damage with installment payment is allowed. In this case, the employee submits to the employer a written obligation to compensate for the damage, indicating specific payment terms. In the event of the dismissal of an employee who gave a written commitment to voluntarily compensate for damage, but refused to compensate for the specified damage, the outstanding debt is recovered in court.
With the consent of the employer, the employee may transfer to him equivalent property to compensate for the damage caused or repair the damaged property.
Compensation for damages is made regardless of bringing the employee to disciplinary, administrative or criminal liability for actions or inaction that caused damage to the employer.
Article 249. Reimbursement of expenses associated with employee training
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
In the event of dismissal without good reason before the expiration of the period stipulated by the employment contract or agreement on training at the expense of the employer, the employee is obliged to reimburse the costs incurred by the employer for his training, calculated in proportion to the time actually not worked after the end of the training, unless otherwise provided by the employment contract or learning agreement.
Article 250
The labor dispute resolution body may, taking into account the degree and form of fault, the financial situation of the employee and other circumstances, reduce the amount of damage to be recovered from the employee.
Reduction of the amount of damage to be recovered from the employee is not carried out if the damage was caused by a crime committed for mercenary purposes.
When applying for a job the employee is obliged to keep the property entrusted to him by the employer and third parties. Liability will come if things are damaged or lost.
The employer will calculate the amount of the loss, and then demand money from an employee. The limited liability of the employee must first be agreed upon when applying for a job. Direct actual damages are recoverable, i.e. one that is calculable.
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What it is?
Limited (partial) liability- This is a measure of coercion to compensate for the damage caused to the employer in an amount not exceeding the average salary of an employee for a month. It comes, unless the labor agreement stipulates otherwise.
The following conditions must be met:
- Claim compensation only for actual harm, i.e. Lost profits and other damages cannot be recovered.
- The size should not exceed salary per month.
When calculating the average income, all payments, regardless of their source, must be taken into account. It will not be possible to avoid full liability if the damage occurred as a result of a crime, offense and intentional actions.
The most common cases of partial liability are:
Employee undertakes to pay employer costs for repairs, restoration of documents or property.
Legislative regulation
The issue of limited liability is regulated by Article 241 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation). To calculate the average earnings, it is also necessary to adhere to the rules of Article 139 of the Labor Code of the Russian Federation. The very principles of calculation are contained in Government Decree N 922 "On the peculiarities of the procedure for calculating the average wage."
Labor Code of the Russian Federation fixes the circumstances full liability, and the Labor Code of the Russian Federation fixes the conditions when it does not occur.
Decree of the Ministry of Labor of the Russian Federation N 85 establishes a list of positions for which full liability is provided.
Who is carrying?
The employee is partially responsible if he is not fully liable. Positions not specified in the Decree of the Ministry of Labor N 85 are subject to limited property liability.
Approximate list of positions:
Local legal act or labor agreement partial liability may be established, although it is not necessary to specifically prescribe this. The penalty will be imposed by law. The prisoner is the basis for prosecution.
After the loss is proved and calculated, the employer issues an order or order. This document contains the final decision and fixes the amount and period reimbursement.
Conditions of occurrence and collection procedure
Partial liability arises under the following conditions:
- The damage occurred in the performance of official duties;
- The employee's actions were unintentional;
- The fact and amount of damage is established and documented;
- There are no factors that exclude guilt;
- The damage is direct and real.
In the event of damage to the organization, the employer must comply with certain rules:
If the rule on the deadline for issuing an order has not been observed, then recovery is possible only in court.
The employer has the right to reduce the amount recovered or refuse to recover the loss. At the same time, the financial condition and misconduct of the employee are taken into account.
An employee and an employer may enter into an agreement establishing installment payment and other reimbursement features. The employee must provide a written commitment indicating the timing of payments.
Watch the video on the procedure for claiming compensation for damage from an employee:
order/instruction
An order is a final document issued by an employer. The text indicates the name of the document and the name of the organization. The reason for issuing the order and the personal data of the employee must be indicated.
Sample order for compensation for damage to an employee:
Dealing with damage should be especially careful. The obligation to prove damage lies with the employer. If it is impossible to resolve the case in the organization, the employer can go to court. If at the meeting it is revealed that the liability should be full, the damage will still be recovered in the amount of the average monthly earnings.
Name of educational institution
Faculty name
Name of specialty
ESSAY
on the course "Labor Law of Russia"
limited and full
employee liability
Performed:
Student of __ course
Surname I.O.
Checked:
Rank
Surname I.O.
St. Petersburg year
CONTENT
Introduction ……………………………………………………………………...................... .........3
The concept, features of liability……..………………………………………...4
Limited and total liability ………………………………………...5
The procedure for compensation by employees of material damage caused to the enterprise…………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………….
Conclusion ……………………………………………………………………………………..15
List of literature used ……………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………
Introduction
According to Art. 37 of the Constitution of the Russian Federation, the most important rights and freedoms of a person and citizen are the right of everyone to freely dispose of their abilities for work, to choose their type of activity and profession, as well as the right of everyone to work in conditions that meet the requirements of safety and hygiene, and to be protected from unemployment. The foundations of the constitutional system also include the protection of labor and health of people, the recognition and protection of private, state, municipal and other forms of ownership in the same way.
These provisions of the Constitution of the Russian Federation comply with the requirements of the Universal Declaration of Human Rights, approved and proclaimed by the General Assembly of the United Nations on December 10, 1948, and a number of other international legal acts in the sphere of labor.
With regard to the subjects of labor relations, the above constitutional provisions are developed in acts of labor legislation. So, according to the Labor Code of the Russian Federation, if, as a result of improper performance by an employee or employer of their duties, material damage is caused to the other party to the employment contract, then it is subject to compensation.
It must be said that the subjects of an employment relationship are in an unequal position in relation to each other. The employee is the economically weaker side of the employment relationship. He is in a more dependent position on the employer than the employer on him. The employee is obliged to obey the master's authority of the employer, to follow his instructions in the course of labor activity, to strive to ensure the safety of property entrusted in connection with the performance of his labor duties. In turn, the employer is obliged not only to properly organize the labor process, but also to take measures to prevent property damage.
Such inequality of the subjects of an employment relationship causes significant differences in the legal regulation of the liability of the employer to the employee and the employee to the employer. They relate to determining the amount of damages to be compensated, the procedure and limits of compensation, the nature of the legal norms governing liability.
The concept, features of liability
The material liability of an employee is the obligation to compensate for the damage caused to the employer by unlawful guilty actions or omissions.
Liability is one of the types of legal liability. In its legal essence, liability has many common features with disciplinary liability. Both of them come for non-performance or improper performance of duties that make up the content of labor discipline, that is, for a disciplinary offense. At the same time, the material and disciplinary liability of employees are independent types of legal liability, regulated by labor law, and therefore there are fundamental differences between them. Financial responsibility, unlike disciplinary responsibility, is not directly aimed at ensuring labor discipline. Its main goal is compensation (compensation) for the damage caused.
The liability of an employee under labor law also has some similarities with property liability under civil law. The basis of both liability is the obligation to compensate for the damage. However, there are very serious differences between material liability under labor law and property liability under civil law, due to the peculiarities of the subject and method of these industries. In accordance with labor legislation, the employee, as a general rule, bears limited material liability and only for direct actual damage. According to the norms of civil law, a person whose right has been violated has the right to demand full compensation for the losses caused to him (both real damage and lost profits).
Limited and full liability
Labor legislation provides for 2 types of material liability of an employee for damage caused: limited liability (when its amount is limited to the average monthly salary of the employee) and full liability (when material damage is compensated in full, in an amount equal to the damage caused).
As a general rule, an employee who is guilty of causing damage to the employer in the performance of labor duties limited liability. Its size depends on the direct actual damage, but cannot be more than the average monthly salary of an employee (Article 241 of the Labor Code of the Russian Federation). It must be borne in mind, however, that Art. 139 of the Labor Code of the Russian Federation established a unified mechanism for determining the size of the average wage.
Full liability, which consists in the obligation of the employee to compensate for the damage in full, occurs only in cases expressly provided for by the labor code or other federal laws (Article 242 of the Labor Code of the Russian Federation).
As a rule, employees under the age of 18 do not bear full financial responsibility for the damage caused. From this general rule, the labor code establishes 3 exceptions. Employees under the age of 18 may be held fully liable for damage caused to the employer's property if:
1. The damage was caused as a result of intentional actions (inaction) of the employee;
2. The damage was caused by an employee who was in a state of alcoholic, narcotic or toxic intoxication;
3. The damage was caused as a result of a crime or administrative offense.
This list of grounds for bringing underage workers to full liability is exhaustive and is not subject to extended interpretation. In all other cases, 18-year-old employees have limited liability.
Article 243 of the Labor Code of the Russian Federation establishes eight grounds under which there is full liability of employees for damage caused to the employer.
In paragraph 1 of Art. 243 of the Labor Code of the Russian Federation, we are talking about cases where the current legislation (Labor Code of the Russian Federation or other federal laws) imposes material liability on the employee in full for damage caused to the employer in the performance of labor duties. Such liability arises regardless of the existence of any other contract between the employee and the employer. For example, the Federal Law of July 7, 2003 "On Communications" provides that telecom operators bear full financial responsibility for the loss, damage to valuable postal items in the amount of the declared value.
The full liability of the employee to the employer arises for not ensuring the safety of valuables when a special written agreement on full liability is concluded between the employee and the employer or if these valuables are received by the employee under a one-time document (power of attorney).
The current labor legislation establishes certain conditions under which the employer can conclude agreements with employees on full individual liability.
Firstly, such contracts can only be concluded with employees who have reached the age of 18;
Secondly, the nature of the work of employees should be associated with the direct service or use of monetary, commodity values or other property. The employee with whom this contract is concluded is liable only for the shortage of the property entrusted to him.
The lists of works and categories of employees with whom these contracts may be concluded, as well as standard forms of these contracts, are approved in the manner established by the Government of the Russian Federation. On his instructions dated November 14, 2002, the Decree of the Ministry of Labor of Russia on December 31, 2002 approved a list of positions and works replaced or performed by employees with whom the employer can conclude written agreements on full individual liability for the shortage of entrusted property, as well as Standard form of an agreement on full individual liability.
According to the terms of the Model Agreement, the employee assumes full liability for the shortage of property entrusted to him by the employer, as well as for damage incurred by the employer as a result of compensation or damage to other persons. Both the employee and the employer assume certain responsibilities.
So, the duties of the employee include:
Treat the property of the employer transferred to him with care and take measures to prevent damage;
Timely inform the employer or immediate supervisor of all circumstances that threaten the safety of the entrusted property;
Keep records, draw up and submit, in accordance with the established procedure, commodity-money and other reports on the movement and balances of the property entrusted to him;
Participate in the inventory, audit, other verification of the safety and condition of the property entrusted to him.
The employer's obligations are to:
To create for the employee the conditions necessary for normal work and ensuring the complete safety of the property entrusted to him;
To acquaint the employee with the legislation on the liability of employees for damage caused to the employer, as well as other regulatory legal acts on the procedure for storage, acceptance, processing, sale (vacation), transportation, use in the production process and other operations with the property transferred to him;
Carry out, in accordance with the established procedure, inventory, audits and other checks of the safety and condition of property.
The employee is not liable if the damage was caused through no fault of his. Therefore, it is important to note that the very fact of a shortage of material assets is not a basis for bringing an employee to full financial responsibility, it is also necessary to establish what exactly the employee’s fault is.
One of the copies of this agreement must be kept by the employee. Amendment, supplementation of the terms of the contract, as well as its termination or termination of its validity is carried out by written agreement of the parties.
An employer can conclude an agreement with an employee on full material individual liability using the proposed Standard forms of agreements or supplement these forms by specifying the terms of the agreement. At the same time, it must be borne in mind that the contract cannot include conditions that reduce the level of rights and guarantees of employees established by labor legislation (Article 9 of the Labor Code of the Russian Federation).
One-time documents for receiving valuables may be issued to a person whose nature of work, as a rule, is not related to obtaining material values. At the same time, it must be borne in mind that such one-time documents for obtaining material assets (including a power of attorney) can be issued by an employer to an employee only with his consent. An employee's refusal to receive material assets, to issue a power of attorney in his name cannot be considered as a violation of labor discipline.