Full liability of the employee to the employer

Unfortunately, in our time, disputes between employees and employers arise quite often, and one has only to “ask” google to give results for the query “employers' lawlessness” and the search engine will offer several hundred thousand results. This suggests that the topic of employer's responsibility is quite relevant and many people ask themselves questions every day about whether the employer acted lawfully in relation to them in this or that situation and how they can protect their rights. Naturally, this leads to the fact that the issue of responsibility is also acute among employers, whose rights are sometimes infringed no less.

Understanding this topic can be quite difficult and to protect your rights it is better to contact qualified lawyers. However, in general, everyone needs to navigate this issue, and in order to help both parties understand it, the Faculty of Medical Law has prepared a series of articles “Employer's Responsibility”.

In this article we will consider the general provisions regarding the responsibility of the employer to the employee. The rest of the articles can be found at the links below:

Article 419 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) contains an indication of bringing persons guilty of violating labor legislation to five types of liability. Among them, applicable to the employer, four can be distinguished (with the exception of the disciplinary one):

material
civil law
administrative
criminal

First of all, if we talk about the responsibility of the employer to the employee, then we mean material and civil liability. As for administrative and criminal liability, it arises from the employer to the state. However, often such responsibility comes just for violation of the labor rights of the employee. Therefore, in this series of articles, we will also briefly consider these two types of responsibility.

Disciplinary responsibility can only come from the employee, therefore, there is no place for it in the article.

General provisions on the liability of the employer are contained in section XI of the Labor Code of the Russian Federation. The essence of liability is obligations of a party to an employment contract(in our case, the employer), causing damage to the other party(in our case, an employee), repair this damage.

According to Art. 233 of the Labor Code of the Russian Federation for the onset of liability, the following conditions must be met:

the presence of property damage to the injured party;
unlawfulness of the action (inaction) that caused the damage;
causal relationship between the illegal act and property damage;
guilty of committing an unlawful action (inaction), unless otherwise expressly provided for by the Labor Code or other federal law.

Chapter 38 of the Labor Code considers four grounds for the occurrence of the liability of the employer:

unlawful deprivation of an employee of the opportunity to work,
damage to his property,
delayed salary and other payments,
causing moral harm to an employee.

Read more about the obligations and consequences for the employer caused by such circumstances in the articles "", "".

Another form of legal liability aimed at restoring the violated rights of an employee is civil liability. This type of employer's responsibility to the employee takes place in cases where he is responsible for the specified violation according to the norms of not labor, but civil legislation.

In this case, the mechanisms for protecting the rights of an employee are reflected in Articles 15 and 151 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) and consists in the following rules:

An employee whose right has been violated may demand full compensation for the losses caused to him, unless the law or the contract provides for compensation for losses in a smaller amount.
If moral harm (physical or moral suffering) is caused to a citizen by actions that violate his personal non-property rights or encroach on non-material benefits belonging to the citizen, as well as in other cases provided for by law, the court may impose on the violator the obligation of monetary compensation for the specified harm.

As we can see, the civil liability of the employer, as well as material, consists mainly in the imposition of property sanctions on him. In this regard, these two types of responsibility are often confused and even combined. According to some legal scholars, material liability is, in fact, civil law (S.S. Alekseev, S.N. Bratus, R.O. Khalfina, etc.).

You can read more about the distinctive features of the material and civil liability of the employer to the employee in.

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In addition to the workers themselves and trade union bodies, the observance of labor legislation and the rights of workers is also monitored by supervisory authorities. In this regard, employers sometimes have to answer for the committed offenses not only to employees, but also to the state.

Well, if you manage to get off with only one administrative punishment, for example, a fine. But there are cases when the violations of the employer are so great that the guilty person can even be held criminally liable.

The administrative responsibility of employers is established by the Code of the Russian Federation on Administrative Offenses (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation). An obligatory element of the occurrence of such liability is the presence of guilt.

Article 2.2 of the Code of Administrative Offenses of the Russian Federation distinguishes two forms of guilt:

Intention - an administrative offense is recognized as committed intentionally if the person who committed it was aware of the unlawful nature of his action (inaction), foresaw its harmful consequences and desired the onset of such consequences or knowingly allowed them or treated them indifferently;
Negligence - an administrative offense is recognized as committed through negligence if the person who committed it foresaw the possibility of harmful consequences of his action (inaction), but without sufficient grounds, presumptuously counted on preventing such consequences or did not foresee the possibility of such consequences, although he should have could have foreseen them.

You can read more about the main violations of employers in the field of administrative law, as well as the sanctions provided for such offenses, in the article "".

Criminal liability of the employer may occur in case of violation of the constitutional rights of citizens, prescribed in Art. 37 of the Constitution of the Russian Federation: “Labor is free. ... Forced labor is prohibited. ... Everyone has the right to work in conditions that meet the requirements of safety and hygiene, to remuneration for work without any discrimination ... Everyone has the right to rest. A person working under an employment contract is guaranteed the length of working hours established by federal law, weekends and holidays, paid annual leave ... ".

It should be remembered that the basis of criminal liability is the commission of an act containing all the elements of a crime under the Criminal Code:

the object is a public relation that is protected by the Criminal Code;
the objective side is a set of signs that characterize the external manifestation of a crime (in particular, action / inaction, causation; time, place, situation and other detailed data);
subject - an individual who commits a crime (medical worker);
the subjective side is the mental attitude of a person to the socially dangerous act committed by him (guilt, motive and purpose). The guilt of a person can be in the form of intent (direct or indirect) or negligence (criminal frivolity or criminal negligence).

Unlike administrative offenses, the types of violations in criminal liability are more socially dangerous, therefore, in criminal liability, the sanctions against the employer are more stringent.

You can find a visual table showing the offenses of the employer and the articles of the Criminal Code of the Russian Federation, according to which criminal liability is provided for such violations, in the article "".

In order to understand in more detail the issue of the responsibility of the employer to the employee, we recommend that you familiarize yourself with other articles of this section.

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 in the condition 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 financial responsibility only for intentional infliction of 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 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 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, 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.

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 depreciation 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 case of dismissal of an employee who gave a written obligation 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.

The legislation of Russia strictly enshrined the obligation of the employer to pay wages to employees in a timely and complete manner. If the employer decides on violations in this area, then he will face serious checks and fines for the damage caused. The Labor Code approached the material liability of an employee to the owners and management of enterprises less strictly. However, an employee should not completely neglect the nomes of Chapter 39 of the Labor Code.

Basic regulations

Despite the fact that the employee, in fact, has more opportunities to harm the employer, the code does not contain a detailed list of the types of such damage. Article 238 of the Labor Code of the Russian Federation implies that the material liability of the employee occurs only for direct actual damage. This means that the employer can only claim compensation for damaged or lost material or financial assets. In order for the management not to try to lay responsibility on employees for hypothetical costs, in the form of lost profits, the same article clearly prohibits demanding such things from team members.

The material damage caused by the employee must be tangible, and expressed in a physical decrease in the number of valuables or deterioration in their condition, Art. 238 of the Labor Code of the Russian Federation.

In recent years, the authorities have been happy to use such a method of moral influence on the minds of employees as a promise to bring them to financial responsibility for disclosing trade secrets. To increase the vigilance of employees and prevent the spread of inside information, the employer often classifies things that are not at all related to such information as secret. For example, the amount of salary or bonuses, the composition of the founders or registration data. It should be understood that only internal reporting data, tender offers or proposed promotional activities, data on technologies, models and designs, and the like are subject to non-disclosure. But, even if this information became known to a hired person, this is not a reason to try to punish him financially. A necessary condition for prosecution will be the obligation to prove several facts:

the employee was in possession of the information, was aware of its special status and gave a signature on its safety;
transferred it to unauthorized persons (accidentally or intentionally);
the data used caused the company real material losses.

But even in this case, the court will analyze the degree of guilt and qualify the severity of the employee’s misconduct, until its decision is made, only disciplinary liability can be applied.

If, nevertheless, the illegal use of commercial information is proven, and even with signs of personal gain, then the employee risks falling under Art. 183 of the Criminal Code of the Russian Federation, which states not only the application of impressive fines, but also real imprisonment.

Collect all, or cases of full liability

Learned - work or compensate

Today, it is not uncommon to find an employer who cares about improving the skills of their employees. Investing in the training of specialists has become a common practice, but since modern education costs decent money, the management also needed means of protection against the dishonesty of trainees. Article 249 of the Labor Code is intended to regulate this moment of labor relations, which allows an employer who has spent financial resources and time on training personnel to demand their compensation if the employee fails to fulfill obligations for mandatory work.

If an employee violated the contract on obtaining a specialty at the expense of the company and quit before graduation without good reason, then the entire amount spent during the years of study is subject to recovery. If the term of working off is violated, then the amount calculated in proportion to the unworked time is reimbursed.

There is damage, but no liability

But even the established actual damage and its culprit do not always mean that the employee will be held liable. In the event of a force majeure or risk of life for the employee himself or several, especially if the person has done everything possible to preserve property, such damage cannot be recovered, art. 239 TK.

The same article also implies one more reason for the employer to refuse attempts to collect the cost of stolen or damaged materials from the employee. If the management neglects its obligations to ensure the conditions for storing valuables, then even the specialist who signed the documents on their preservation will not be financially responsible for their loss. For example, if the employer discloses information about security methods, admits strangers to the territory of the warehouse, or refuses to repair locks and install bars in a timely manner, the storekeeper will be able to prove in court his innocence in the discovered shortage and avoid paying their cost.

Blame the employee, but the employer will answer

In addition to direct damage in the form of theft or equipment breakdown, an employee can also harm indirectly: damage property owned by the counterparty, but transferred to the preservation of his company. In this case, the employer of the negligent specialist will have to pay the full cost of the damaged materials (Articles 402 and 1068 of the Civil Code of the Russian Federation), and then decide how to get the costs incurred from the offender (Chapter 39 of the Labor Code). So, if the atelier spoiled the fabric or made a mistake with the size, the customer will rightfully demand a refund from the management of the sewing enterprise. All attempts by the employer to remove responsibility from the organization and step aside will be illegal, since the court will consider the studio as the executor, and not a specific seamstress. How relations between the authorities and the person hired to perform the work will develop in the future, the customer will not be affected.

The duty of the employer is to prove the amount of damage and establish the guilt of the employee

The fact of causing material damage can be established both situationally (appeal of a counterparty, emergency, report of a materially responsible person), and during planned activities (inventory). But fixing this state of affairs is not enough to present financial claims to the employee. First, you need to conduct an audit and comply with the established Art. 247 TC procedures:

Create a new or convene an existing commission at the enterprise, designed to establish the amount of damage, its causes and perpetrators.
Determine the quantitative composition of the missing property and its value (based on accounting registers or according to the current market valuation).
Find out the circumstances of the damage and the circle of those involved.
Demand written explanations from all those potentially responsible for causing harm. If the employees refused to write them, then this should be recorded in a separate act.
Assess the degree of guilt of the employee or the participation of each member of the team, taking into account extenuating circumstances that allow waiving the claim for compensation payments, art. 240 TK. As a rule, the salaries of all the perpetrators are also taken into account.
Based on the results of the check, draw up an inventory list or a defective act.
Familiarize the guilty employee with the materials of the audit and take into account his objections.
Issue an order (instruction) to bring the employee to liability.

It should be noted that the inspection is the direct responsibility of the employer. If he evades it, but does not give up his intention to financially punish the employee for damaged property, the indiscriminately accused person can not only ignore the demands of his superiors, but also apply to the court to protect his interests.

In the process of checking and determining the amount of losses, the employer has the right to refuse claims against the employee, or partially reduce them, based on the employee's explanations or the specific circumstances of the incident, Art. 240 of the Labor Code of the Russian Federation.

Procedure for payment of material damage

If all the formalities for establishing the amount of financial losses of the enterprise and the circle of persons responsible for them are observed, there comes a time when the funds must be legally withheld from the income of employees and documented their withdrawal.

The amount of the established damage	Deadline for submitting a claim from an employer	Reimbursement method	Documenting
Small damage, not exceeding the average salary	Within a calendar month from the date of determining the damage	From the employee's salary, if he continues to work, from settlement and compensation payments upon dismissal	The order of the head, after receiving a written explanation from the employee and familiarizing him with the calculations of costs.
Minor damage, not exceeding the average salary, which the employee refused to compensate, or damage, the amount of which exceeds the average salary of the guilty employee	Within a year from the date of discovery of the fact of damage or loss of property, Art. 392 of the Labor Code of the Russian Federation.	From the salary of an employee who continues to work in the amounts provided for in Art. 138 of the Labor Code of the Russian Federation. From other incomes of laid-off workers in the same amounts.	Deductions are possible only by a court decision and on the basis of a writ of execution.
Damage in excess of the average salary, for the recovery of which the voluntary consent of the employee has been obtained	Within a year from the date of discovery of the fact of damage and loss of property, art. 392 TK.	From the employee's salary or in the form of providing an equivalent replacement for damaged property. There are also frequent cases of reaching an agreement between the parties on restoring the working capacity or qualitative characteristics of damaged valuables, Art. 248 of the Labor Code of the Russian Federation.	The order of the head and a written agreement on the method and procedure for compensation for harm. It also specifies the amount or amount of damage caused, the timing of debt repayment or repair work, the technical characteristics of the equipment provided in exchange for the lost one.

Voluntary payment for damages

In rare cases, an agreement is reached between the employee and the employer on voluntary reimbursement of costs incurred by the company to restore material assets or settle relations with counterparties, it will be necessary to conclude a written agreement. The guilty employee is obliged to pay the amount of damages. Moreover, there will not be a restriction established by Art. 138 TK. The contract may imply a full one-time deposit of money into the cash desk or to the current account of the enterprise, and the repayment of debt in installments, and even a separately agreed amount that does not correspond to either accounting data or market information. The validity of the signed contract does not terminate with the termination of the employment relationship and will continue even after dismissal.

Unfortunately, often such agreements are not fully implemented or they are abandoned without starting payments on them. In this case, the employer has only one way to bring the employee to liability - going to court for the truth.

Arbitrage practice

Lawyer of the Board of Legal Protection. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and other regulatory documents to regulatory authorities.

17.04.2016

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. Liability of employees for damage caused to the employer in the performance of labor duties is one of the means of protecting the employer's property rights.

Liability of employees according to labor law

Careful attitude to the property of the employer is one of the main duties of the employee under an employment contract (Article 21 of the Labor Code of the Russian Federation). In cases where he violated the requirement of the law to take care of the property of the employer, as a result of which the employer suffered property damage, the employee is obliged to compensate for this damage. In other words, employees are subject to material liability according to the norms of labor law, which is defined as a measure of state coercion, which consists in imposing on the employee the obligation to compensate, in the manner and amount established by law, the damage caused through his fault to the organization with which he is in labor relations.

The legal basis for the institution of material liability of workers is formed mainly by constitutional norms, for example, Art. 8 of the Constitution of the Russian Federation, which establishes the forms of ownership and their inviolability, as well as the Labor Code of the Russian Federation (Ch. 37, 39).

The material liability of employees according to the norms of labor law must be distinguished from other measures of material influence, namely:

Deprivation or reduction of the amount of the bonus provided for by the system of remuneration and remuneration based on the results of the annual work of the organization (where such remuneration is provided for by local regulations containing labor law norms).
Reducing the coefficient of labor participation in the collective form of organization and stimulation of labor.
Deductions from wages made on the basis of the law (Article 137 of the Labor Code of the Russian Federation).

Regulatory legal acts regulating compensation for material damage caused to the employer are designed to:

First, to ensure the safety of the property of the employer and employee, to prevent the facts of waste and mismanagement.
Secondly, to promote the strengthening of labor discipline.
Third, to ensure the protection of workers' wages from excessive and illegal deductions.

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 accounting reports and postscripts. Such phenomena not only bring significant harm to the normal activities of the organization, but also cause material damage, which, as practice shows, is expressed to a greater extent in the theft of unaccounted for or unused material values.

The subjects of material liability in labor law, as mentioned, can be both an employee and an employer (organization), regardless of the form of ownership on the basis of which this organization was created. As economic and judicial practice shows, nevertheless, the subject of legal relations for material liability in the sphere of labor is primarily an employee who caused material (property) damage to the employer by his unlawful guilty actions (inaction).

Conditions for holding an employee liable

An analysis of the norms of the Labor Code of the Russian Federation, in particular Articles 233, 238 of the Labor Code of the Russian Federation, leads to the conclusion that the employee’s liability arises for damage caused to the employer only if a combination of the following conditions is established:

Existence of direct actual damage.
Wrongful behavior of an employee.
Causal relationship between the employee's unlawful behavior and the existence of damage.
The fault of the employee in causing damage.

These conditions are mandatory and in the absence of at least one of them, it is impossible to hold the employee liable under labor law.

1. Existence of direct actual damage must be proven. Evidence of the occurrence of damage is the statement of the party to the employment contract, confirmed by documents and other evidence, including testimonies.

In paragraph 2 of Art. 55 of the Civil Procedure Code of the Russian Federation, it is established that evidence obtained in violation of the law has no legal force and cannot be used as the basis for a court decision. Evidence is characterized by the fact that it represents factual data, i.e. information that correctly and sufficiently reflects the circumstances that are important for determining the existence of material damage caused to one or another party to the employment contract.

Unlike civil law, only real damage (also called direct or actual damage) that the employer or employee actually caused is subject to proof. In civil law, in addition to real damage, lost income is recovered that a person (natural or legal) would have received under normal conditions of civil circulation if his right had not been violated (lost profit or lost income). The norms of labor legislation do not provide for the recovery of lost income (profit that the employer could have received, but did not receive as a result of illegal actions (inaction) of his employees) is not provided.

2. Wrongful behavior of an employee is a legally significant circumstance when bringing him to liability. Behavior (action or inaction) is recognized as illegal if it violates certain obligations assigned to the party to the employment contract by the relevant labor standards. The main duties of the employee are provided for in Art. 21 of the Labor Code of the Russian Federation. In addition, the duties of the employee arise from the content of the employment contract, as well as the internal labor regulations.

Illegal is the behavior of an employee in which he does not perform his labor duties or performs them improperly, but only those duties that are directly or indirectly related to careful attitude to material values (property of the employer and other employees) in accordance with Art. 21 of the Labor Code of the Russian Federation. These obligations are usually specified in special acts that determine the procedure for saving, storing and using property and other material assets. These acts, in addition to laws, decrees of the President of the Russian Federation, resolutions, orders of the Government of the Russian Federation, include internal labor regulations, job descriptions, various rules, instructions and orders of the employer.

Inaction is recognized as unlawful if the above acts impose on the parties to the employment contract (or on one of them) the obligation to perform certain actions that one or another party has not fulfilled. If this applies, in particular, to an employee, he must be familiarized with such an act.

3. causationbetween the unlawful behavior of the employee and the existence of damage is one of the mandatory conditions for bringing him to liability. Proving this circumstance involves the presentation of evidence confirming the connection between non-fulfillment or improper fulfillment of the duties assigned to the employee in compliance with the law with the occurrence of damage. Of course, there is no liability for accidental consequences.

4. The fault of the employee in causing damage should be taken into account when deciding whether to bring him to liability. In labor law, guilt is understood as the mental (internal) 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, imprudence). Direct intent takes place when the employee is aware of the illegal nature of his action (behavior), foresees the possibility of harmful consequences (damage) and wishes them to occur. With indirect intent, the employee, aware of the unlawfulness of his behavior and understanding the possibility of material damage, does not want this, but allows the onset of harmful consequences or is indifferent to their occurrence.

Negligence in the form of arrogance consists in the fact that the employee, realizing the illegal nature of his action (inaction) and the possibility of material damage as a result of this, frivolously hopes to prevent the latter.

Negligence, imprudence is evident where the employee was not aware of the unlawful nature of his behavior and did not foresee the possibility of causing damage, however, due to the circumstances of the case, he should have and could foresee.

Any form of guilt can serve as a basis for bringing an employee to liability under labor law (of course, if there are other conditions of liability provided for by law).

When deciding whether to bring an employee to liability, the division of intent into direct or indirect intent has no practical significance. At the same time, the difference between intent and negligence plays a certain role, since in some cases the limits of liability (limited or full) depend on the form of guilt. If the damage is caused by the intentional actions of the employee, including when the employee did not want, but deliberately allowed the possibility of damage, then liability arises in the full amount of the damage caused (clause 3, part 1, article 243 of the Labor Code of the Russian Federation).

Circumstances excluding material liability of the employee

In some cases, the law provides for a rule according to which the material liability of the employee to the employer is excluded. In particular, in accordance with Art. 239 of the Labor Code of the Russian Federation, such cases include: the occurrence of damage due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer’s failure to fulfill obligations to ensure proper conditions for storing property entrusted to the employee.

Force majeure (force majeure) is an event or circumstance that is extraordinary and unavoidable under the given conditions (natural disaster, for example, flood, earthquake, some social phenomena, for example, military operations, man-made accidents).

It is not allowed to impose material liability on employees for such damage that arose as a result of normal economic risk.

The resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52 (clause 5) states that the actions of an employee that correspond to modern knowledge and experience can be attributed to normal economic risk, when the goal set could not be achieved otherwise, the employee properly fulfilled the official duties assigned to him, showed a certain degree of care and discretion, took measures to prevent damage, and the object of risk was material values, and not the life and health of people.

As a circumstance relieving the employee from liability due to the absence of unlawful behavior, the fulfillment of the requirement (order, order) of the employer (his representative) to commit actions that led to material damage may act.

Article 240 of the Labor Code of the Russian Federation gives the employer the right to refuse to recover damages caused by the employee, in whole or in part. The employer can use this right taking into account the circumstances in which the damage was caused, the financial situation of the employee and other circumstances. Such a refusal is permissible regardless of whether the employee bears limited liability or liability in full, and also regardless of the form of ownership of the organization.

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