Introduction
1. Liability: concept and distinguishing features
2. Liability of the employee for damage caused to the employer
3. The procedure for recovering damage caused by an employee
4. Liability of the employer to the employee
5. Agreement on full individual liability
Conclusion
Literature
Introduction
Liability consists in the obligation of the employee to compensate in full or in part for property damage caused to the employer by guilty illegal actions.
In accordance with Article 8 of the Constitution of the Russian Federation, our state recognizes and protects equally private, state, municipal and other forms of ownership.
One of the important means of protecting various forms of ownership is the material liability of the employee for damage caused to the employer in the performance of job duties.
Careful attitude to the property of organizations is named among the main duties of an employee (Article 21 of the Labor Code of the Russian Federation). According to the norms of labor legislation, all employees, regardless of the form of ownership on which the organization is based, are liable, and even after the termination labor relations if the damage was caused during the period of their validity.
1. Liability: concept and distinguishing features
Liability is the responsibility of the party employment contract that caused damage (harm) to the other party to compensate it in the amount and in the manner prescribed by law. Labor legislation provides for the liability of the employer to the employee and the liability of the employee to the employer. Since material liability is an independent type of legal liability, the obligation to compensate for the damage caused to the employer arises regardless of whether the employee is brought to disciplinary, administrative or criminal liability.
Material liability according to labor law should be distinguished from other measures of material influence, namely: deprivation of the bonus provided for by the remuneration system, or remuneration based on the results annual work, reducing the coefficient labor participation with a collective form of organization and stimulation of labor; deductions from wages produced on the basis of the law (Articles 137, 138 of the Labor Code of the Russian Federation).
Liability for labor law should be distinguished from property liability under civil law. This should be taken into account, first of all, in the law enforcement activities of organizations in order to prevent possible errors in resolving the issue of compensation for damage caused to the employer. Subjects of material liability under labor law can only be employees who are (or were at the time of causing damage) in labor relations with the employer to whom they caused material damage. In connection with labor relations, employees are subject to additional responsibilities for the safety of property by the internal labor regulations and other regulatory legal acts. this employer. In cases where damage is caused by other persons (contractor or executor under work contracts, assignments), compensation must be made in accordance with civil law, tk. these persons are not in an employment relationship with the organization.
According to the norms of labor law, only direct actual damage is subject to recovery, as a rule, within the limits of the average monthly earnings, and lost income (lost profit) is not subject to recovery. According to the norms of civil law, damage is subject to compensation in full by the person who caused it (Article 1064 of the Civil Code of the Russian Federation).
In labor law, the amount of reimbursable damage caused through the fault of several employees is determined for each, taking into account the degree of his fault (Article 245 of the Labor Code of the Russian Federation). It is only about shared liability. In civil law, joint and several liability is applied (Article 1080 of the Civil Code of the Russian Federation).
According to the norms of labor law, employees are exempted from liability for damage that can be classified as a normal economic risk (Article 239 of the Labor Code of the Russian Federation). In civil law, in such cases, damage is subject to compensation (Article 401 of the Civil Code of the Russian Federation).
The employer has the right to apply to the court for disputes on compensation by the employee for harm caused to the organization within one year from the date of discovery of the harm caused (Article 392 of the Labor Code of the Russian Federation). To protect rights in civil law relations with the participation of citizens, a three-year limitation period has been established (Article 196 of the Civil Code of the Russian Federation).
According to the norms of labor law, a special procedure is established for the recovery of damages that do not exceed the average monthly earnings. Collection in this case can be made by order of the employer (Article 248 of the Labor Code of the Russian Federation). In civil law relations, if there is no voluntary compensation for the damage caused, recovery is carried out in court.
Article 232 of the Labor Code of the Russian Federation for the first time reflected the rule that an employment contract or agreements concluded in writing attached to it can specify the liability of the parties to this contract. At the same time, the contractual liability of the employer to the employee cannot be lower, and the employee to the employer - higher than it is provided for by the Labor Code of the Russian Federation or other federal laws. This provision indicates that at the contractual level between the parties, it is possible to reduce the material liability of the employee and increase the liability of the employer to the employee, which corresponds to the actual position of the employee in labor relations as an economically less protected party.
2. Liability of the employee for damage caused to the employer
Liability under labor law can only occur if a combination of the following conditions is established:
the presence of direct actual damage;
unlawful behavior of the employee;
guilt in causing damage;
a causal relationship between the guilty wrongful conduct and the damage caused.
Damage, breakage, destruction, release of low-quality products, unjustified expenses made through the fault of employees are property damage. Direct actual damage is understood as a real decrease in the employer's cash property or deterioration of its condition, as well as the need for the employer to make costs or excessive payments for the acquisition or restoration of property (part 2 of article 238 of the Labor Code of the Russian Federation). Excessive cash payments, as a result of which the employer suffered material damage subject to compensation by guilty officials, include amounts paid to employees in violation of applicable law. Such payments may arise in the following cases: payment of wages in connection with illegal suspension, dismissal, transfer; the refusal of the employer to execute or untimely execution of the decision of the court or the state legal inspector on the reinstatement of the employee in his previous job; delays in issuing a work book (Article 234 of the Labor Code of the Russian Federation).
Direct actual damage can be caused by a shortfall in monetary amounts (incomplete receipt of monetary amounts due to the organization), loss or partial, complete depreciation of documents (missing the limitation period and the inability to recover from the documents confirming the existence of debt, monetary amounts from the debtor organization ).
Article 239 of the Labor Code of the Russian Federation names circumstances that exclude the material liability of an employee: force majeure, normal economic risk, extreme necessity, necessary defense. The Code does not disclose the content of the concept of normal economic risk, but the conditions must be met: the goal set could not be achieved by other actions; the employee took all available measures to prevent damage. A justified normal economic risk should exclude a frivolous decision "at random".
One of the conditions for the onset of liability is unlawful behavior (action or inaction). This is understood as behavior that is contrary to the prescriptions of legal acts (norms), as well as the lawful orders and instructions of the employer. In order to give a legal assessment of the actions (inaction) of an employee, it is necessary to clearly define the scope of his duties under an employment contract. As a circumstance that relieves the employee from liability due to the absence of unlawful behavior, the execution of an order from the administration to commit actions that led to material damage may be performed. At the same time, it should be borne in mind that if the order is illegal, and this illegality is obvious, the employee who followed such an order is not released from liability. Such cases may be, for example, release by financially responsible persons from a valuables warehouse at the written or oral instruction of the employer's representative without issuing an expense document; execution by the cashier of the instructions of the chief accountant on the issuance of money from the cash desk without documenting.
The category of guilt in labor law refers to the mental attitude of a person to his unlawful behavior and its consequences (results). Distinguish guilt in the form of intent (direct or indirect) and in the form of negligence (arrogance, negligence). When bringing to material liability, the division of intent into direct or indirect practical value does not matter. At the same time, the distinction between intent and negligence plays a certain role, since in some cases, the type of liability (limited or full) depends on the form of guilt.
The employer who has suffered damage and who raises the issue of compensation must prove the guilt of the employee. An exception is made from this rule in relation to materially responsible persons, to whom the principle of the presumption of guilt is applied, which means that in the event of a shortage or damage to the values entrusted to such employees under the report, they must prove that the loss or damage occurred through no fault of theirs. In the absence of such evidence, they bear material liability in the full amount of the damage caused. .
The material liability of the employee to the employer for the damage caused is of the following types: limited; complete; collective; individual.
Limited liability provides for compensation by the employee for damages within predetermined limits. As a rule, such a limit is the average monthly earnings (Article 241 of the Labor Code of the Russian Federation). Labor Code does not contain a list of cases of damage for which material liability is provided within the average monthly salary of an employee, but as practice shows, the most typical cases are the following:
damage or destruction through negligence of the property of the employer, materials, products (products), as well as tools, overalls and other items issued for use by the employee;
shortage of money, loss of documents, complete or partial depreciation of documents, payment of a fine due to the fault of the employee.
Full liability is called so because the employee compensates for the damage in full without any limitation, but not more than the amount of direct damage. In accordance with Art. 242 of the Labor Code of the Russian Federation, full liability for employees under the age of eighteen years can be only in the following cases: intentional infliction of damage; for damage caused in a state of alcoholic, narcotic or toxic intoxication; for damage caused as a result of a crime or administrative offense. Article 243 of the Labor Code of the Russian Federation establishes cases of full liability. These include:
if, in accordance with the Labor 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 (for example, cashiers, collectors, communications workers working with transfers, parcels);
shortage of valuables entrusted to the employee on the basis of a special written agreement or received by him under a one-time document (for example, the foreman, by proxy of the members of the team, received wages for them and lost it);
intentional infliction of damage (including when the employee did not want, but knowingly allowed the possibility of damage ) ;
causing damage in a state of alcoholic, narcotic or toxic intoxication;
causing damage as a result of the employee's criminal actions established by a court verdict (for example, theft). If the guilty employee is released from punishment due to an act of amnesty or pardon, then this is not a basis for releasing him from full liability;
causing damage as a result of an administrative offense, if such is established by the relevant authority;
disclosure of information constituting a legally protected secret (official, commercial, other), in cases provided for by federal laws;
causing damage not in the performance of work duties by the employee (for example, during working hours, the employee broke the machine when he was making a part for his garage; the driver used the company car for personal purposes after work, and as a result of the accident it was damaged).
The list of cases of full liability is established by federal law. In other cases, full liability cannot be assigned to the employee, even if such a condition is included in his employment contract. Based on Art. 9 of the Labor Code of the Russian Federation, employment contracts cannot contain conditions that reduce the level of rights and guarantees of employees, established labor law, and similar terms of the employment contract cannot be applied. An employment contract may specify the material liability of the parties to the contract, but the contractual liability of the employee to the employer cannot be higher than provided for by the Labor Code or other federal laws (Article 232 of the Labor Code of the Russian Federation).
Written agreements on full liability are concluded with employees who have reached the age of eighteen and directly serve or use monetary, commodity values or other property. Lists of works and categories of employees with whom such contracts can be concluded are approved in the manner established by the Government of the Russian Federation . Liability for employees arises for failure to ensure the safety of valuables transferred to them for storage, processing, sale, transportation or use in the production process. Failure to ensure safety refers to both shortage and damage to valuables. Based on the decision of the Plenum of the Supreme Court of the USSR of September 23, 1977, financially responsible persons are liable for other cases of damage to the employer on a general basis. For example, financially responsible persons are subject to limited liability in case of damage caused by incorrect preparation of the product acceptance document, as a result of which a claim could not be made to the supplier.
Collective (team) liability is established when employees jointly perform certain types works. Collective liability for causing damage is introduced if 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 (Article 245 of the Labor Code of the Russian Federation). A written agreement on collective liability is concluded between the employer and all members of the team (team). The list of works in the performance of which collective liability may be introduced, the conditions for its application and the standard contract were approved by the Decree of the Ministry of Labor of the Russian Federation of December 31, 2002 No. The amounts of damages are distributed among the members of the team (team) in a shared manner, depending on the hours worked (for example, one employee was on vacation or sick), on the degree of guilt of each in proportion to their tariff rates. 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 is determined by agreement between all members of the team and the employer. When recovering damages in court, the degree of guilt of each member of the team is determined by the court (Article 245 of the Labor Code of the Russian Federation).
Currently, there is a standard form of an agreement on full individual liability, approved. Decree of the Ministry of Labor of the Russian Federation of December 31, 2002 No.
The Labor Code of the Russian Federation contains a conflict of art. 243 and 277, where we are talking about the liability of the head of the organization. Points of view were expressed in the legal literature, according to which there can be no exceptions in labor legislation, and nevertheless, Art. 277 provides that the head of the organization compensates for losses, the calculation of which is carried out in accordance with the norms of civil law. Norm Art. 277 is imperative, therefore it is it that needs to be applied, and not part 2 of Art. 243, which determines that full liability can be established by an employment contract concluded with the head of the organization.
3. The procedure for recovering damage caused by an employee
Article 247 of the Labor Code of the Russian Federation establishes the obligation of the employer to establish the amount of damage caused to him and the reason for its occurrence. An inspection to determine the amount of damage is carried out by the employer independently or by a specially created commission with the participation of specialists. Without fail, the employer must demand a written explanation from the employee in order to establish the cause of the damage. If the employee does not agree with the conclusions made as a result of the audit, he has the right to apply to the bodies for the consideration of individual labor disputes.
As a general rule, the amount of damage caused to the employer in the event of loss or damage to property is determined by actual losses, based on market prices in force on the day the damage was caused in the given area, but cannot be lower than the book value of the property based on accounting data.
Unlike the Labor Code of the Russian Federation, the Labor Code provides for the possibility for the employer to refuse to recover material damage from the employee in whole or in part (Article 240 of the Labor Code of the Russian Federation).
Compensation for damages by an employee in an amount not exceeding the average monthly earnings is made 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.
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, payment by installments may be stipulated. In this case, the employee is obliged to submit to the employer a written obligation to compensate for the damage, indicating specific payment terms. The transfer of equivalent property for compensation of damage or the correction of damaged property is allowed only with the consent of the employer.
Judicial collection is carried out in the following cases:
if it is impossible to recover damages by order (in case of missing the deadline for its issuance or in case of dismissal of the employee);
if the employee does not agree to voluntarily compensate for the damage;
if the amount of damage to be recovered from the employee exceeds his average monthly earnings;
if the employee gave a written obligation to voluntarily compensate for damage, but refused to compensate for the specified damage;
if the employee has not reimbursed the costs incurred by the employer when sending him for training at the expense of the employer (for example, in the event of dismissal without good reasons before the expiration of the period stipulated by the employment contract or training agreement);
if the employer compensated the damage caused by the employee to third parties and filed a claim in recourse against the guilty employee.
The employer has the right to apply to the court for disputes on compensation by the employee for harm caused to the organization within one year from the date of discovery of this harm.
Compensation for damage is made regardless of bringing the employee to disciplinary, administrative or criminal liability for actions that caused damage to the employer.
If the employer fails to comply with the procedure for recovering damages established by law, the employee has the right to appeal against the actions of the employer in court. 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. Article 250 of the Labor Code of the Russian Federation prohibits the reduction of the amount of damage caused as a result of a crime committed for mercenary purposes.
4. Liability of the employer to the employee
The employer, as a party to an employment contract that caused damage to the other party, is obliged to compensate for it in accordance with the Labor Code of the Russian Federation and other federal laws. The material liability of the parties to the employment contract may be specified in the employment contract or agreements concluded in writing and attached to it. At the same time, the contractual liability of the employer to the employee cannot be lower than that provided for by the Code or other federal laws.
The liability of the employer to the employee is regulated by Ch. 38 of the Labor Code of the Russian Federation. In accordance with it, the onset of liability of the employer is possible in the following cases:
compensation to an employee for material damage caused as a result of illegally depriving him of the opportunity to work: illegal suspension from work (Article 76 of the Labor Code of the Russian Federation), illegal transfer (Articles 72-76 of the Labor Code of the Russian Federation), illegal dismissal (Articles 77-84 of the Labor Code of the Russian Federation), refusal of the employer to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee in his previous job (Articles 389, 396, 357 of the Labor Code of the Russian Federation), delay in issuing a work book (Article 62 of the Labor Code of the Russian Federation), entering into work book incorrect or non-compliant wording of the reason for dismissal of an employee (Article 66 of the Labor Code of the Russian Federation), failure to comply with the statutory deadlines for warning the employee about the upcoming dismissal (clause 7. Article 77, clauses 1, 2 Article 81, Article 180 of the Labor Code of the Russian Federation) and etc.;
compensation for damage caused to the property of the employee;
compensation for moral damage caused to the employee by unlawful actions (or inaction) of the employer;
in case of violation of the established deadline for the payment of wages and other payments due to the employee (Articles 136, 140, 141, 142 of the Labor Code of the Russian Federation);
when an employee is harmed by injury, occupational disease or other damage to health associated with the performance of labor duties.
Article 234 of the Labor Code of the Russian Federation obliges the employer to reimburse the employee for lost earnings in cases where the employee was deprived of the opportunity to perform his labor duties.
Damage caused by the employer to the property of the employee is compensated on the basis of Art. 235 of the Labor Code of the Russian Federation. The grounds for bringing the employer to liability under the named article include: damage to clothing in the performance of labor duties; loss of things from the wardrobe or in places designated for storage; loss or damage to other personal property, which, with the consent or knowledge of the employer, is used in the course of work. The damage is compensated in full. With the consent of the employee, the damage can be compensated in kind. The employer is obliged to consider the employee's application for damages and make a decision within ten days. If the employee disagrees with the decision of the employer, the employee has the right to go to court.
The employer is obliged to reimburse monetary form moral damage caused to the employee by illegal actions (for example, in the case of illegal transfer, illegal dismissal, in case of discrimination in the field of labor). Moral harm is physical and moral suffering caused by actions that violate the personal property rights of a citizen or encroach on other intangible benefits belonging to him (Article 151 of the Civil Code of the Russian Federation). The amount of non-pecuniary damage must be determined by the parties to the employment contract. If the employer refuses to compensate moral damage voluntarily, the employee has the right to go to court. The presence or absence of property damage does not affect the employee's right to file a claim for compensation for moral damage.
Labor Code of the Russian Federation in Art. 236 established the rules for the liability of the employer to the employee for the delay in the payment of wages. In this case, the employer is obliged to pay all the amounts of money due to the employee (wages, vacation pay, payments upon dismissal) with the payment of interest ( monetary compensation) in the amount of not less than one three hundredth of the current refinancing rate Central Bank RF from amounts not paid on time for each day of delay, starting from the next day after the due date of payment up to the day of actual settlement inclusive. The amount of compensation may be increased by a collective or labor agreement.
The Plenum of the Supreme Court of the Russian Federation explained that if the employer refuses to pay interest (monetary compensation), then he is obliged to prove in court that the violation of the deadline for paying wages was not his fault. Otherwise, the court has the right to satisfy the claim of the employee.
An analogue of liability for delayed payment of wages is liability for non-fulfillment of a monetary obligation in civil law (Article 395 of the Civil Code of the Russian Federation). Responsibility for non-fulfillment of a monetary obligation for a business entity may also arise in the absence of guilt. Meanwhile, as M.I. Braginsky, it is difficult to explain why a creditor under an obligation arising from an employment contract should be put in a worse position compared to an ordinary civil law creditor. . In accordance with the current legislation, the contractor under a civil law contract (contract, paid services) may demand the collection of penalties from the customer organization for the delay in the payment of remuneration, if the delay arose due to circumstances, although excluding guilt, but not relieving the organization from liability, then as an employee of the same organization, this cannot be demanded for delayed wages. Apply in practice the provisions of Art. 236 of the Labor Code of the Russian Federation is extremely difficult, because the delay in payment of wages is explained by those circumstances that do not relieve the entrepreneur from liability under the Civil Code of the Russian Federation, but exempt the employer from liability under the Labor Code of the Russian Federation, for example, the lack of necessary funds.
When considering a claim for delayed payment of wages, the court will require the presentation of a collective agreement or an employment contract. And if it contains the amount of interest payable by the employer in connection with the delay in the payment of wages, other payments due to the employee, then the amount of monetary compensation will be calculated taking into account this particular amount (provided that it is not lower than that established by Article 236 of the Labor Code of the Russian Federation) .
The accrual of interest due to late payment of wages does not exclude the right of the employee to index the amounts of delayed wages due to their depreciation due to inflationary processes, since such indexation is not an independent measure of the employer's responsibility, but a technical mechanism for restoring the purchasing power of money not received by the employee in a timely manner .
Employers are liable for harm caused to an employee by injury, occupational disease or other damage to health in the performance of his job duties in accordance with the Federal Law of July 24, 1998 N 125-FZ "On Compulsory Social Insurance against Industrial Accidents and Occupational Diseases" " . Compulsory social insurance against accidents at work provides for compensation for harm caused to the life and health of the insured in the performance of his duties under an employment contract by providing the insured in full with all necessary types of insurance coverage, including payment of expenses for medical, social and professional rehabilitation. Property interests individuals associated with the loss of health, professional disability or death of individuals due to an accident at work or occupational disease, are the object of compulsory social insurance. The named Federal Law provides for the rights, duties and responsibilities of the subjects of insurance, and also names the types of insurance coverage. The following types of compensation for harm to an employee are possible: compensation for lost earnings, depending on the degree of loss of professional ability to work; reimbursement of additional expenses in connection with a labor injury; lump sum allowance; compensation for moral damage.
Currently, these types of compensation for harm to an employee (except for moral damage) are not made by employers from their own funds, but by the Social Insurance Fund of the Russian Federation (insurer), to which employers (insurers) contribute insurance premiums for the workers. These relations go beyond the scope of labor law, so the issues of compensation for harm have moved to the branch of social security law.
5. Agreement on full individual liability
Agreement on full individual liability (liability agreement) regulates liability for damage caused by one of the parties to the employment contract (employee and employee). Liability agreement is in the case when between the employer and the citizen has already been concluded labor contract. AT sample liability agreement stipulate:
responsibilities of the administration and security officer enterprise property entrusted to the employee
the material responsibility of the employee for failure to ensure the safety of this property is established.
Parties to the liability agreement
Liability agreements may be concluded with employees who have reached the age of eighteen years and who directly serve or use monetary, commodity values or other property. The circle of persons who may be entrusted with full liability is determined by the Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85 "On Approval of 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 ) material liability, as well as standard forms of agreements on full liability". It is unlawful to conclude a material liability agreement with an employee whose position is not included in this list and to whom values are not directly entrusted.
The liability agreement is concluded in writing, drawn up and signed by the parties in two copies, one for each party.
Features of the liability agreement
It should be noted that the condition that the employee bears full financial responsibility, included in the employment contract, will not have legal force. It is necessary to enter into a separate liability agreement. The exception is the heads of the organization, his deputies and the chief accountant - the condition for the full liability of these employees can be provided for directly in the employment contract (Article 243 of the Labor Code of the Russian Federation). However, it is recommended to include labor contract a condition on the obligation of the employee to conclude an agreement on liability in order to avoid further disagreements.
Liability arises only if the employee is at fault for the damage. If the damage is caused due to force majeure (force majeure), normal economic risk, extreme necessity or necessary defense, or the employer's failure to fulfill the obligation to ensure proper conditions for storing property, the employee's material liability is excluded.
Appendices to the liability agreement
The liability agreement contains an appendix:
List of property subject to liability.
Related documents to the liability agreement
The liability agreement contains the accompanying documents:
Supplementary agreement.
6. Types of liability, their characteristics
The current legislation provides for two types of liability:
limited;
Limited Liability. There are two types of limited material liability: material liability in the amount of direct actual damage, but not more than the average monthly salary of the employee, and material liability in the amount of direct actual damage, but not more than three monthly salaries of the official. All employees, including officials, are liable within the limits of the average monthly earnings, unless there are grounds for imposing liability on them in a higher amount.
Limited liability in the amount of damage caused through their fault, but not more than their average monthly earnings, is borne by the heads of enterprises, institutions, organizations:
if the damage is caused by excessive monetary payments. Overpayments include , in particular, the amount of fines collected, the wages paid to the dismissed employee due to the delay due to the fault of the employer in issuing the work book, as well as the wages paid to the employee for excessively provided days next vacation without exception days of absenteeism;
if the damage is caused by incorrect accounting and storage of material or monetary values;
if the damage is caused by the failure to take the necessary measures to prevent downtime, the release of low-quality products, theft, destruction and damage to material or monetary values.
The second type of limited material liability is material liability within the limits of three monthly salaries of officials guilty of illegal dismissal or transfer of an employee. Officials bear the same financial responsibility in the event of a delay in the implementation of a court decision on the reinstatement of an employee at work. Liability in this case rests with executive guilty of a clear violation of the law when dismissing or transferring an employee. Under a clear violation of the law should be understood, in particular:
dismissal of a worker or employee at the initiative of the administration without the consent of the relevant elected trade union body, when such consent is mandatory, or on grounds not provided for by law;
transfer to another job or dismissal of a member of the labor collective council without the consent of the labor collective council;
dismissal of women in the cases specified in Part 2 of Art. 170 of the Labor Code of the Russian Federation, when the administration was aware of the existence of circumstances precluding the possibility of dismissal;
dismissal underage workers without the consent of the state labor inspectorate of the subject Russian Federation and district ( urban) commissions on juvenile affairs ( Art. 183 Labor Code of the Russian Federation);
dismissal or transfer of those who are not exempt from production work chairmen and members of trade union bodies, trade union groups, as well as trade union organizers in violation of the guarantees provided for in Art. 235 Labor Code of the Russian Federation;
transfer of an employee without his consent to another permanent job.
Full material liability occurs only in cases expressly specified in the law ( Art. 121 Labor Code of the Russian Federation, art. 10 Regulations on the liability of workers and employees for damage caused to an enterprise, institution, organization, approved by Decree of the Presidium of the USSR Armed Forces dated July 13, 1976 No. 4204-1X), namely:
when a written agreement is concluded between an employee and an enterprise, institution, organization on the assumption by the employee of full financial responsibility for failure to ensure the safety of property and other valuables transferred to him for storage or for other purposes. Written agreements on full liability can be concluded by an enterprise, institution, organization with employees ( over 18 years of age), occupying positions or performing work directly related to the storage, processing, sale ( vacation), transportation or use in the production process of the values transferred to them. The list of such positions and works, as well as the Model agreement on full individual liability, were approved by the Decree of the USSR State Committee for Labor and the Secretariat of the All-Union Central Council of Trade Unions of December 28, 1977 No. 447/24 “On approval of the list of positions and works replaced or performed by employees with whom the enterprise, institution , the organization may conclude written agreements on full liability for failure to ensure the safety of the values transferred to them for storage, processing, sale ( holidays), transportation or use in the production process, as well as a model agreement on full individual liability" ( with rev. dated September 14, 1981). For example, agreements on full liability can be concluded with employees when they occupy such positions as heads of procurement centers, heads of pharmacies and their deputies, heads of enterprises Catering and their deputies, etc. In addition, an agreement can also be concluded with the employee on full liability when he performs work: on receiving all types of payments from the population and paying money not through the cash desk; maintenance of vending and cash machines; on acceptance for storage, release of material assets, on issuance ( reception) material assets to persons staying in medical and preventive and sanatorium-resort institutions, etc. AT judicial practice disputes arising in connection with the application of measures disciplinary action to employees who refused to conclude an agreement on full liability for the safety of material assets. When considering such cases, the courts proceed from the fact that if the fulfillment of duties for the maintenance of material assets is for the employee his main labor function and an agreement on full liability must be concluded with him, then the refusal to conclude such an agreement without good reason must be considered as a failure to fulfill labor duties with all the ensuing consequences. If the employee refuses to conclude the contract for good reasons, the administration must offer him another job. In the absence of such work or the employee's refusal to transfer to another job, the employment contract with him may be terminated under paragraph 1 of Art. 33 Labor Code of the Russian Federation;
when property and other valuables were received by the employee on account of a one-time power of attorney or other one-time documents. Such liability may take place when an employee is involved in the urgent receipt, delivery, transfer of property values, necessary for the enterprise (institution), if it is not possible to entrust this work to financially responsible persons. The issuance of a one-time power of attorney to receive valuables by an employee whose daily duties do not include the execution of such orders can only take place with their consent, means a one-time operation and should not turn into a system;
when the damage is caused by the criminal actions of the employee, established by a court verdict. No other body can establish the fact of a crime. However, the court, having established the existence of a crime, may release the employee from criminal liability, for example, due to a change in the situation, active repentance, in relation to a minor with the use of coercive measures of educational influence ( Art. 6,7,8 Code of Criminal Procedure of the Russian Federation). In these cases, there are no grounds for exemption from liability of the employee, tk. the guilt of the employee is established by a court verdict;
when the damage was caused by an employee who was in a state of intoxication. In accordance with Art. 38 of the Labor Code, the administration must remove the employee who appeared in a state of intoxication from work. But if for some reason this did not happen and the employee caused the damage, he must compensate it in full;
when the damage is caused by shortage, deliberate destruction or deliberate damage to materials, semi-finished products, products ( products), including during their manufacture, as well as tools, measuring instruments, special clothing and other items issued by the enterprise, institution, organization to the employee for use. When conducting an investigation, it is necessary to carefully ascertain the cause of such damage, since the correct determination of the type and limits of liability depends on this.
If the damage is caused intentionally employee's actions, including when the employee did not want, but knowingly allowed the possibility of damage, there is liability in full in accordance with paragraph 6 of Art. 121 Labor Code of the Russian Federation.
The full liability of the employee under the provisions of paragraph 6 of Art. 121 of the Labor Code on grounds also occurs in the event of a shortage of these values, regardless of the form of his guilt.
If the damage is caused as a result of the negligence of the employee, he can be held liable for limited material liability within the limits of his average monthly earnings ( Art. 119 Labor Code);
when, in accordance with the law, the employee is fully liable for damage caused to the enterprise, institution, organization in the performance of labor duties. So, telecom operators in accordance with Art. 37 of the Federal Law of February 16, 1995 No. 15-FZ "On Communications" ( with rev. January 6, July 17, 1999) bear material responsibility for the loss, damage to valuable postal items, shortage of postal items in the amount of the declared value. The distortion of the text of the telegram, which changed its meaning, the non-delivery of the telegram or the delivery of the telegram to the addressee after 24 hours from the moment of its submission, entails liability in the amount of the paid fee for the telegram ( with the exception of telegrams addressed to settlements that do not have telecommunications). Some other categories of employees also bear full financial responsibility in cases provided for by law;
when the damage was caused not in the performance of labor duties. Infliction of damage "outside the performance of work duties" means that the damage occurred either in free time from work, or during working hours but not in connection with the performance of labor duties. The most common cases are the use of material assets for personal interests, as a result of which they were broken or damaged.
Conclusion
From the foregoing, we can conclude that the institution of liability in the field of labor relations plays a decisive role in the development of the rule of law.
The new labor code, in contrast to the previously existing Labor Code of the RSFSR, more fully, taking into account the newly emerged objective economic realities, regulates the legal relationship between the employee and the employer in the area of liability.
A clear regulation of this sphere of labor relations should reduce social tension in society and eliminate one of the causes of labor conflicts.
At the same time, a clear delineation of material liability in the field of labor relations from civil liability makes it possible to more fully protect the rights and legally protected interests of both the employee and the employer.
Literature
The Constitution of the Russian Federation of 1993 - M.: INFA-M. 2006.
Labor Code of the Russian Federation (parts 1.2) as amended on 12/22/2006.
Federal Law of July 17, 1999 "On Employment in the Russian Federation" N 175-FZ.
Golovina S.Yu. Labor relations. - M.: Gelion. - 2005.
Reference and legal system "Garant". Update - May 2007.
Kolobova S. How to protect labor rights / S. Kolobova // Russian justice. - 2004. - No. 10. - p.14 - 19.
1.1 The concept of employee liability
The right of ownership in the Russian Federation is recognized and protected by the state. Accordingly, private, state, municipal and other forms of ownership are recognized and protected in the same way. The Constitution of the Russian Federation (adopted by popular vote on December 12, 1993), Article 8 // Russian newspaper. December 25, 1993.
In the legal literature it is noted that the material liability of employees is one of the means of protecting forms of ownership, because it represents the legal obligation of the employee who has guiltyly caused damage to compensate him in the manner prescribed by law Gusov K.I., Tolkunova V.N. Labor law of Russia. - M., 2000. -- S. 332..
The material responsibility of the employee is the obligation to compensate in full or in part the damage caused by the illegal guilty actions of the employee to the property of the employer in the manner and within the limits established by labor legislation. The basis for bringing an employee to liability is a labor offense, as a result of which damage is caused to the property of the employer Nikonov D.A., Stremoukhov A.V. Labor law. Lecture course. - M.: Norma, 2007. - S. 347. Moreover, liability is an independent type of legal liability. It occurs regardless of the involvement of the employee for the damage caused by him to any other type of liability Patrov V.V., Pyatov M.L. Liability of employees of the organization. - M.: Finance and statistics, 2001. - P.5 ..
Liability according to the norms of labor law encourages employees to work in such a way that there is no damage, loss, destruction, theft of material assets. It is called upon to play a serious role in the fight against violations of state discipline, which may be distortions of operational and financial statements and subscriptions. Such phenomena not only bring significant harm to the normal activities of organizations, but also cause material damage, which, as practice shows, is expressed to a greater extent in the theft of unaccounted for or unused material assets Gusov K.N., Poletaev Yu.N. Responsibility under Russian labor law. Scientific and practical guide. - M.: Prospekt, 2008. - S. 190 ..
In accordance with traditional ideas dating back to the Soviet era, the material liability of an employee has three goals: guarantee (for the employee), reparative and preventive Kiselev I.Ya. Labor law of Russia and foreign countries. Textbook. - M.: Eksmo, 2005 - S. 172 ..
1.2 The difference between the material liability of an employee in labor law and property liability in civil law
An analysis of modern Russian legislation allows us to identify the main characteristics material liability of employees under labor law and determine the main differences between such liability and property liability under civil law. In particular, the following can be noted. (For clarity, the data are presented in the form of a table.)
Comparative analysis of liability in labor law and property liability in civil law
|
Criterion |
Liability in labor law Here and further in the table: Labor Code of the Russian Federation of 12/30/2001. No. 197-FZ (as amended on December 1, 2007). |
Property Liability in Civil Law No. 51-FZ (as amended on December 6, 2007); Civil Code of the Russian Federation (Part Two) of 26.01.1996 No. 14-FZ (as amended on December 6, 2007). |
|
Employees who, at the time of causing damage, are in an employment relationship with the employer to whom they caused damage |
Persons who perform work for this organization not under an employment contract (for example, a work contract, assignments, etc.) |
|
|
The amount of the penalty |
Direct actual damage (Article 241 of the Labor Code of the Russian Federation). |
Damage caused in full (actual damage + costs for the restoration of the violated right + lost profit) |
|
Liability Limits |
Differentiated depending on the nature of the offense, the labor function of the employee, the form of guilt |
The obligation of a person to fully compensate for property damage is not excluded in case of accidental damage (Article 401 of the Civil Code of the Russian Federation). |
|
Collective liability |
The amount of reimbursable damage is determined for each, taking into account the degree of guilt, type and limits of liability (Articles 241, 243, 245 of the Labor Code of the Russian Federation). |
Joint liability (Art. 1080, 1081 of the Civil Code of the Russian Federation). |
|
Normal business risk |
Liability is excluded (Article 239 of the Labor Code of the Russian Federation) |
Damage is subject to compensation (Article 401 of the Civil Code of the Russian Federation) |
|
Limitation period |
1 year (Article 392 of the Labor Code of the Russian Federation) |
3 years (Article 196 of the Civil Code of the Russian Federation) |
|
Damage recovery procedure |
Recovery is possible in a special manner by order of the employer, or in court. |
Judicially. |
These are the main differences between material liability under labor law and property (material) liability in civil law. The above comparison gives grounds to recognize that the liability of employees under labor law provides broader guarantees of their rights and interests than property liability under civil law. This reveals the peculiarity of labor relations, the subjects of which (the employee and the employer) are closely interconnected and the content of which (in addition to the employee’s performance of labor duties) is the creation of appropriate working conditions, concern for material, labor and social conditions, taking into account subjective factors related to labor process Gusov KN, Poletaev Yu.N. Responsibility under Russian labor law. Scientific and practical guide. - M.: Prospekt, 2008. - S. 193-195 ..
The current legislation provides two types of liability:
1) limited;
2) complete.
Limited Liability. There are two types of limited material liability: material liability in the amount of direct actual damage, but not more than the average monthly salary of the employee, and material liability in the amount of direct actual damage, but not more than three monthly salaries of the official.
All employees, including officials, are liable within the limits of the average monthly earnings, unless there are grounds for imposing liability on them in a higher amount.
Limited liability in the amount of damage caused through their fault, but not more than their average monthly earnings, is borne by the heads of enterprises, institutions, organizations:
a) if the damage is caused by excessive monetary payments. Excessive cash payments include, in particular, the amounts of fines collected, wages paid to a dismissed employee due to a delay due to the fault of the employer in issuing a work book, as well as wages paid to an employee for excessively provided days of the next vacation, without exception days of absenteeism;
b) if the damage is caused by incorrect accounting and storage of material or monetary values;
c) if the damage was caused by the failure to take the necessary measures to prevent downtime, the release of low-quality products, theft, destruction and damage to material or monetary values.
The second type of limited material liability is material liability within the limits of three monthly salaries of officials guilty of illegal dismissal or transfer of an employee. Officials bear the same financial responsibility in the event of a delay in the implementation of a court decision on the reinstatement of an employee at work. Liability in this case rests with the official guilty of a clear violation of the law when dismissing or transferring an employee. Under a clear violation of the law should be understood, in particular:
Dismissal of a worker or employee at the initiative of the administration without the consent of the relevant elected trade union body, when such consent is mandatory, or on grounds not prescribed by law;
Transfer to another job or dismissal of a member of the labor collective council without the consent of the labor collective council;
Dismissal of women in the cases specified in Part 2 of Art. 170 of the Labor Code of the Russian Federation, when the administration was aware of the existence of circumstances precluding the possibility of dismissal;
Dismissal of underage workers without the consent of the state labor inspectorate of the constituent entity of the Russian Federation and the district (city) commission on minors (Article 183 of the Labor Code of the Russian Federation);
Dismissal or transfer of chairmen and members of trade union bodies, trade union groups, as well as trade union organizers who are not released from production work, in violation of the guarantees provided for in Art. 235 Labor Code of the Russian Federation;
Transfer of an employee without his consent to another permanent job.
Full liability occurs only in cases expressly specified in the law (Article 121 of the Labor Code of the Russian Federation, Article 10 of the Regulation on the liability of workers and employees for damage caused to an enterprise, institution, organization, approved by Decree of the Presidium of the USSR Armed Forces dated July 13, 1976 No. 4204- 1X), namely:
1) when a written agreement is concluded between the employee and the enterprise, institution, organization on the assumption by the employee of full liability for failure to ensure the safety of property and other valuables transferred to him for storage or for other purposes.
Written agreements on full liability may be concluded by an enterprise, institution, organization with employees (aged over 18) holding positions or performing work directly related to the storage, processing, sale (vacation), transportation or use in the production process of transferred to them values. The list of such positions and works, as well as the Model agreement on full individual liability, were approved by the Decree of the USSR State Committee for Labor and the Secretariat of the All-Union Central Council of Trade Unions of December 28, 1977 No. 447/24 “On approval of the list of positions and works replaced or performed by employees with whom the enterprise, institution , the organization may conclude written agreements on full liability for failure to ensure the safety of valuables transferred to them for storage, processing, sale (vacation), transportation or use in the production process, as well as standard contract on full individual liability” (as amended on September 14, 1981). For example, agreements on full liability can be concluded with employees when they occupy such positions as heads of procurement centers, heads of pharmacies and their deputies, heads of public catering enterprises and their deputies, etc.
In addition, an agreement can also be concluded with an employee on full liability when he performs work: on receiving all types of payments from the population and paying money not through the cash desk; maintenance of vending and cash machines; for the receipt for storage, release of material assets, for the issuance (reception) of material assets to persons staying in medical and preventive and sanatorium-resort institutions, etc.
In judicial practice, disputes arising in connection with the application of disciplinary measures to employees who refused to conclude an agreement on full liability for the safety of material assets are not isolated. When considering such cases, the courts proceed from the fact that if the fulfillment of duties for the maintenance of material assets is for the employee his main labor function and an agreement on full material liability must be concluded with him, then the refusal to conclude such an agreement without good reason must be considered as a failure to fulfill labor obligations. responsibilities with all the ensuing consequences. If the employee refuses to conclude the contract for good reasons, the administration must offer him another job. In the absence of such work or the employee's refusal to transfer to another job, the employment contract with him may be terminated under paragraph 1 of Art. 33 Labor Code of the Russian Federation;
2) when property and other valuables were received by the employee on account of a one-time power of attorney or other one-time documents. Such liability may take place when an employee is involved in the urgent receipt, delivery, transfer of property values necessary for the enterprise (institution), if it is not possible to entrust this work to materially responsible persons.
The issuance of a one-time power of attorney to receive valuables by an employee whose daily duties do not include the execution of such orders can only take place with their consent, means a one-time operation and should not turn into a system;
3) when the damage is caused by the criminal actions of the employee, established by a court verdict. No other body can establish the fact of a crime. However, the court, having established the existence of a crime, may release the employee from criminal liability, for example, due to a change in the situation, active repentance, in relation to a minor with the use of coercive measures of educational influence (Articles 6,7,8 of the Code of Criminal Procedure of the Russian Federation). In these cases, there are no grounds for exemption from liability of the employee, tk. the guilt of the employee is established by a court verdict;
4) when the damage was caused by an employee who was in a state of intoxication. In accordance with Art. 38 of the Labor Code, the administration must remove the employee who appeared in a state of intoxication from work. But if for some reason this did not happen and the employee caused the damage, he must compensate it in full;
5) when the damage is caused by shortage, deliberate destruction or deliberate damage to materials, semi-finished products, products (products), including during their manufacture, as well as tools, measuring instruments, special clothing and other items issued by the enterprise, institution, organization to the employee for use .
When conducting an investigation, the cause of such damage should be carefully ascertained, since the correct determination of the type and limits of liability depends on this.
In the event that the damage was caused by the intentional actions of the employee, including when the employee did not want, but knowingly allowed the possibility of damage, liability arises in full in accordance with paragraph 6 of Art. 121 Labor Code of the Russian Federation.
The full liability of the employee under the provisions of paragraph 6 of Art. 121 of the Labor Code on grounds also occurs in the event of a shortage of these values, regardless of the form of his guilt.
If the damage was caused as a result of the negligence of the employee, he may be held liable within the limits of his average monthly earnings (Article 119 of the Labor Code);
6) when, in accordance with the legislation, the employee is fully liable for damage caused to the enterprise, institution, organization in the performance of labor duties. So, telecom operators in accordance with Art. 37 of the Federal Law of February 16, 1995 No. 15-FZ "On Communications" (as amended on January 6, July 17, 1999) are liable for the loss, damage to valuable postal items, shortage of attachments of postal items in the amount of the declared value. The distortion of the text of a telegram that changed its meaning, the non-delivery of a telegram or the delivery of a telegram to the addressee after 24 hours from the moment of its submission, entails liability in the amount of the paid fee for the telegram (with the exception of telegrams addressed to settlements that do not have telecommunications).
Some other categories of employees also bear full financial responsibility in cases provided for by law;
7) when the damage was caused not in the performance of labor duties. Infliction of damage "outside the performance of work duties" means that the damage occurred either in free time from work or during work, but not in connection with the performance of work duties. The most common cases are the use of material assets for personal interests, as a result of which they were broken or damaged.
Types of liability:
2) Collective
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. Employees under the age of eighteen bear full financial responsibility 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.
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 the 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 contract or received by him under a one-time document;
3) intentional infliction of damage;
4) infliction of damage in a state of alcoholic, narcotic or other toxic intoxication;
5) causing damage as a result of the criminal actions of the employee, established by a court verdict;
6) causing damage as a result of an administrative offense, if such is established by the relevant government agency;
7) disclosure of information constituting a legally protected secret (state, official, commercial or other), in cases provided for by federal laws;
8) infliction of damage not in the performance of 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.
Collective:
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. Under an agreement on collective (brigade) material liability, values are entrusted to a predetermined group of persons, which is fully liable for their shortage. To be released from liability, a member of the team (team) must prove the absence of his guilt.
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 less than the value of the property according to accounting taking into account the degree of wear and tear of this property. 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. 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.
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.
The labor dispute body may, taking into account the degree and form of fault, financial situation employee and other circumstances to 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.
Material liability
1. The concept, types and conditions of liability
2. Types of liability of the employee
3. The procedure for applying liability
4. Liability of the employer
1. The concept, types and conditions of liability
Material liability- it is the obligation of the party to the employment contract that caused damage to the other party to compensate it in the amount and in the manner prescribed by law.
Liability is an independent type of liability and a specific measure of material impact.
Foundations material liability:
1) unlawful behavior of the employee;
2) the presence of actual damage;
3) a causal relationship between the unlawful behavior of the employee and the onset of direct actual damage;
4) the presence of the employee's fault.
Each of the parties to the employment contract is obliged to prove the amount of damage caused to it.
Termination of an employment contract after causing damage does not entail the release of the party to this contract from material liability provided for by this Code or other federal laws.
Types of liability:
employee to employer
employer to employee
2. Types of liability of the employee
Types of liability of employees:
limited
collective
Limited liability is characterized by the following features:
1) it provides for compensation by the employee for damages within a predetermined limit (not more than the average monthly salary);
2) the average monthly salary is determined based on the last 3 calendar months;
3) the legislation does not provide for a list of cases of damage for which limited liability is provided.
At complete material liability damage is compensated in in full and is not limited by a predetermined limit.
cases under which the employee bears full financial responsibility:
1) If the employee, in accordance with applicable law, is fully liable for damage caused to the enterprise in the performance of labor duties.
2) If an agreement on full liability is concluded between the employee and the employer or if the property was received under a one-time document
Employee is over 18 years old
Nature of work (tangible assets transferred)
3) If the damage is caused by intentional destruction or damage to property.
4) If the damage was caused by an employee who was drunk, in a state of toxic or drug intoxication.
5) If the damage is caused by the actions of the employee, containing signs of acts prosecuted in criminal proceedings.
6) If the damage was caused as a result of an administrative offense.
7) Disclosure of information constituting a legally protected secret (official, commercial or other), in cases provided for by federal laws.
8) If the damage was caused not during performance official duties.
Employees under the age of 18 bear full financial responsibility only for intentionally causing damage, damage caused in a state of alcoholic, narcotic or toxic intoxication, as well as for damage caused as a result of a crime or administrative offense.
Collective material liability:
valuables are entrusted to a predetermined group of workers, which assumes responsibility for their safety;
the list of works for which it is established is approved by law;
established by agreement of all members of the team;
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.
3. The procedure for applying liability
1. The amount of damage caused to the employer in the event of loss or 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 less than the value of the property according to accounting data, taking into account the degree of wear and tear of this property.
2. 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.
3. To establish the cause of the damage, an application must be requested from the employee.
4. 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.
5. 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 the recovery is carried out in court.
6. An employee who is guilty of causing harm to an employer may voluntarily compensate for it in full or in part. By agreement of the parties to the employment contract, compensation for damage with installment payment is allowed.
7. With the consent of the employer, the employee may transfer to him, in order to compensate for the damage caused, property of equal value 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.
4. Liability of the employer
The employer is obliged to compensate the employee for material damage (lost earnings) in cases of illegal deprivation of his opportunity to work:
1) illegal suspension an employee from work, his dismissal or transfer to another job;
2) the employer's refusal to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee in his previous job;
3) delays by the employer in issuing a work book to an employee, entering into the work book an incorrect or inconsistent wording of the reason for dismissal of an employee;
4) other cases provided for by federal laws and collective agreement.
The employer is financially liable for the delay in wages: if the employer violates the established deadline for paying wages, vacation pay, payments upon dismissal and other payments due to the employee, the employer is obliged to pay them with the payment of interest (monetary compensation) in the amount of not less than one three hundredth of the current this is the time of the refinancing rate of the Central Bank of the Russian Federation from the amounts not paid on time for each day of delay.
The employer is liable for damage caused to the employee's property:
1) compensate in full;
2) the amount of damage is calculated according to market prices operating in the area at the time of compensation for damage;
3) with the consent of the employee, the damage may be compensated in kind;
4) the employee's application for compensation for damage is sent by him to the employer. The employer is obliged to consider the received application and make an appropriate decision within ten days from the date of its receipt;
5) if the employee disagrees with the decision of the employer or does not receive a response within the prescribed period, the employee has the right to apply to the court.
The employee compensates moral damage caused to the employee:
1) damage is compensated in cash;
2) the amount is determined by agreement of the parties;
3) in the event of a dispute, the amount is determined by the court.