Labor legislation establishes a legal remedy that ensures the protection of the interests of the employee in the event of damage to his property

Court decisions based on the application of the norm of Article 242 of the Labor Code Russian Federation.

Art. 242 of the Labor Code of the Russian Federation. Full financial responsibility of the employee

Arbitrage practice

Decision No. 2-1673/2019 2-1673/2019~M-1419/2019 M-1419/2019 dated June 28, 2019 in case No. 2-1673/2019

Soviet District Court of Samara (Samara Region) - Civil and administrative

Or excessive payments for the acquisition, restoration of property or for compensation for damage caused by the employee to third parties. As follows from the provisions of Part 1 and 2 of Art. 242 of the Labor Code of the Russian Federation, the full liability of the employee consists in his obligation to compensate the direct actual damage caused to the employer in full. Financial liability in full amount caused ...

Decision No. 2-2081/2019 2-2081/2019~M-1524/2019 M-1524/2019 dated June 28, 2019 in case No. 2-2081/2019

Pervomaisky District Court of Murmansk (Murmansk region) - Civil and administrative

Mirny S.A. It is also regulated by the norms of the Labor Code of the Russian Federation, since he was an employee of MC *** LLC, in connection with which, by virtue of Articles 232, 238, 242 of the Labor Code of the Russian Federation, he must bear full financial responsibility to the plaintiff. Plaintiff's representative LLC Medical Center"***" Quiring A.G. at the hearing supported the stated requirements. Respondent Peace...

Decision No. 2-3629/2018 2-748/2019 2-748/2019(2-3629/2018;)~M-3490/2018 M-3490/2018 dated June 28, 2019 in case No. 2-3629/2018

Leninsky district court of Irkutsk (Irkutsk region) - Civil and administrative

Code or other federal laws. The full liability of the employee consists in his obligation to compensate the direct actual damage caused to the employer in full (part 1 of article 242 of the Labor Code of the Russian Federation). Part 2 of Article 242 of the Labor Code of the Russian Federation provides that material liability in the full amount of the damage caused can be assigned to the employee only in cases provided for by this code ...

Decision No. 2-232/2019 2-232/2019~M-206/2019 M-206/2019 dated June 28, 2019 in case No. 2-232/2019

Zabaykalsky District Court Zabaykalsky Krai) - Civil and administrative

Code or other federal laws. The full liability of the employee consists in his obligation to compensate the direct actual damage caused to the employer in full (Part 1 of Article 242 of the Labor Code of the Russian Federation). Part 2 of Article 242 of the Labor Code of the Russian Federation provides that material liability in the full amount of the damage caused can be assigned to the employee only in cases provided for by this Code ...

Decision No. 2-1877/2019 2-1877/2019~M-1497/2019 M-1497/2019 dated June 28, 2019 in case No. 2-1877/2019

Ordzhonikidzevsky District Court of Perm ( Perm region) - Civil and administrative

Chapter 39 of the Labor Code of the Russian Federation defines the conditions for imposing on an employee who caused property damage to the employer, liability, including the limits of such liability (Articles 241, 242, 243 of the Labor Code of the Russian Federation). From the content of the above norms substantive law in their relationship and explanations given in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated (date) No. ..., it follows ...

Decision No. 2-164/2019 2-164/2019~M-132/2019 M-132/2019 dated June 28, 2019 in case No. 2-164/2019

Velikoluksky District Court (Pskov region) - Civil and administrative

Also, the need for the employer to make costs or excessive payments for the acquisition, restoration of property or for compensation for damage caused by the employee to third parties. In accordance with Art. 242 of the Labor Code of the Russian Federation, the full liability of the employee consists in his obligation to compensate the direct actual damage caused to the employer in full. Liability for the full amount of the damage caused can ...

Decision No. 2-5889/2018 2-605/2019 2-605/2019(2-5889/2018;)~M-4417/2018 M-4417/2018 dated June 28, 2019 in case No. 2-5889/2018

Frunzensky District Court (City of St. Petersburg) - Civil and administrative

Code or other federal laws. The full liability of the employee consists in his obligation to compensate the direct actual damage caused to the employer in full (Part One of Article 242 of the Labor Code of the Russian Federation). Part two of Article 242 of the Labor Code of the Russian Federation establishes that material liability in the full amount of the damage caused can be assigned to the employee only in cases provided for by this code ...

Decision No. 2-673/2019 2-673/2019~M-504/2019 M-504/2019 dated June 28, 2019 in case No. 2-673/2019

Shushensky District Court (Krasnoyarsk Territory) - Civil and administrative

The fault of the employee in causing damage. The full material responsibility of the employee consists in his obligation to compensate the direct actual damage caused to the employer in full (Part 1 of Article 242 of the Labor Code of the Russian Federation). Part 2 of Article 242 of the Labor Code of the Russian Federation provides that material liability in the full amount of the damage caused can be assigned to the employee only in ...

• ... case materials, the court finds the claims to be satisfied. By virtue of Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for the direct actual damage caused to him. According to Art. 242 of the Labor Code of the Russian Federation, the full liability of the employee consists in his obligation to compensate the direct actual damage caused to the employer in full. By virtue of Art. 243 of the Labor Code of the Russian Federation liability ...

For most labor disputes pre-judicial procedure for permission is provided. In contrast, cases of material liability of employees are considered directly in court. Clause 1 of the Decree of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 No. 52 “On the application by the courts of legislation governing the material liability of employees for damage caused to the employer” (hereinafter referred to as the Decree) clarifies the legal position, according to which, regardless of the value of the claim of the case on disputes about the material liability of an employee for damage caused to the employer are within the jurisdiction of justices of the peace. This rule also applies when the damage was caused by the employee during the period of the employment contract, and the employer filed a claim after its termination. Consider the main requirements and provisions that should be taken into account when considering this category of cases in court.

When applying statement of claim Employers often refer to the fact that claims arising from labor relations are not subject to payment of state duty. Meanwhile, in accordance with Art. 333.36 of the Tax Code of the Russian Federation the employer is exempted from paying state duty only when he goes to court with a claim for compensation material damage caused by the employee 's crime .

In other cases, the employer is obliged to pay the state duty, depending on the value of the claim, since, by virtue of sub. 1 p. 1 art. 333.36 of the Tax Code of the Russian Federation and art. 393 of the Labor Code of the Russian Federation, when applying to the court with a claim arising from labor relations, employees, and not the employer, are exempted from paying duties and court costs.

Deadlines for going to court

The employer has the right to apply to the court for compensation for material damage caused by the employee within one year from the date the damage was discovered (Article 392 of the Labor Code of the Russian Federation).

When checking the observance of the deadlines stipulated by law for applying to the court, it should be taken into account that the start of the specified deadlines is the day following the day when it became known about the occurrence of damage. If these deadlines are missed and the defendant initiates a dispute on the application of the limitation periods, the employer has the right to file a petition for their restoration. In case of missing the specified deadlines for a good reason, the justice of the peace restores them. Missing the deadline for applying to the court can be recognized as valid, for example, when it is caused by the need to conduct inspections, audits, investigations, etc., on the fact of causing damage, which took a long time. Missing the statute of limitations is not grounds for refusing to accept a claim.

The amount of damage

In accordance with Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for the direct actual damage caused to him (clause 2 of article 238 of the Labor Code of the Russian Federation).

Previously, employees were obligated to compensate for damages incurred by the employer as a result of compensation for damages to other persons. This provision has now ceased to be valid.

Direct actual damage is understood as a real decrease in the employer’s cash property or deterioration of the said property, including the property of third parties held by the employer, if the employer is responsible for the safety of this property, as well as the employer’s need to incur costs (or excessive payments) for the acquisition, restoration of property or compensation for damage caused by the employee to third parties.

The Labor Code of the Russian Federation gives the employer the right, taking into account the specific circumstances of causing damage, to refuse to recover it from the employee in whole or in part (Article 240 of the Labor Code of the Russian Federation). Article 240 of the Labor Code of the Russian Federation contains a provision that the owner of the property of the organization may restrict the specified 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, founding documents organizations.

Article 241 of the Labor Code of the Russian Federation establishes the limits of liability. For the damage caused general rule the employee is liable within the limits of his average monthly earnings.

Article 243 of the Labor Code of the Russian Federation establishes cases of full liability, which consists in the obligation of the employee to compensate for the damage caused in full.

The procedure for determining the amount of damage is established by Art. 246 of the Labor Code of the Russian Federation, according to which 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 operating in the area on the day of damage, but not less than the cost property according to accounting taking into account the degree of wear and tear of this property. The federal law may establish a special procedure for determining the amount of damages subject to compensation caused to the employer by theft, deliberate damage, shortage or loss. certain types property and other valuables, as well as in cases where the actual amount of damage caused exceeds its nominal amount.

The amount of damage is determined on the basis of market prices, the concept of which is given in Art. 3 Federal Law No. 135-FZ dated July 29, 1998 "On valuation activities in the Russian Federation" .

burden of proof

It is very important for the court to properly distribute the burden of proving the circumstances essential to the case. These, in particular, include: the absence of circumstances excluding the liability of the employee; unlawfulness of the behavior (action or inaction) of the tortfeasor; fault of the employee (of any form) in causing damage; causal relationship between the employee's behavior and the resulting damage; the presence of direct actual damage; the amount of damage caused; compliance with the rules for establishing individual, collective (team) responsibility.

If damage is discovered, the employer is recommended to conduct an internal audit.

To conduct an audit, the employer may create a commission with the participation of accounting workers (st. storekeepers, foremen, etc.). In accordance with Regulations on accounting dated 29.07.98 No. 34n, when facts of theft, abuse or damage to property are revealed, it must be an inventory has been made.

The procedure for conducting an inventory is established Guidelines oninventory of property and financial obligations, approved by the Order of the Ministry of Finance of Russia dated June 13, 1995 No. 49. Inventory is carried out, as a rule, audit commission, which includes representatives of the administration, accounting, other specialists (engineers, economists, technicians, etc.). After it has been carried out, it is necessary to draw up a collation statement (its form was approved by the Decree of the State Statistics Committee of Russia dated 18.08.98 No. 88). The collation statement is drawn up in two copies: one remains in the accounting department, the second is transferred to the employee responsible for the safety of valuables. It reflects the results of the inventory, i.e. discrepancies between accounting data and inventory records. Inventory materials are attached to the documents of the official investigation.

Requesting a written explanation from the employee to establish the causedamage is mandatory. In case of refusal or evasion of the employee from providing the specified explanation, an appropriate act is drawn up (Article 247 of the Labor Code of the Russian Federation).

The employee and (or) his representative have the right to get acquainted with all the materials of the audit and appeal them in the prescribed manner (Articles 386, 391 of the Labor Code of the Russian Federation). All of the circumstances listed above must be proven by the employer in court. If he proved in court the legitimacy of concluding an agreement with the employee on full liability and the fact that this employee has a shortage, the defendant bears the burden of proving that he is not guilty of causing damage.

Clause 5 of the Decree contains circumstances that exclude the possibility of bringing an employee to liability (Article 239 of the Labor Code of the Russian Federation). For example, actions of an employee that correspond to modern knowledge and experience, when the set goal could not be achieved otherwise, while the employee duly fulfilled the tasks assigned to him, can be attributed to normal economic risk. official duties, showed a certain degree of care and discretion, took measures to prevent damage. It is essential that the object of risk in this case was material values, and not the life and health of people.

Failure by the employer to fulfill the obligation to ensure proper conditions for the storage of property entrusted to the employee may serve as a basis for refusing to satisfy the requirements of the employer if this caused damage.

Manager's responsibility

In accordance with paragraph 2 of Art. 278 of the Labor Code of the Russian Federation, an employment contract with the head of an organization may be terminated at any time by the owner of the property or an authorized body of the organization. Managers seek the inclusion in the contract of conditions that allow them to protect themselves from the arbitrariness of the employer. Some judges have encountered the fact that employment contracts with heads of organizations include conditions that are clearly contrary to the law.

Full liability can be established employment contract concluded with deputy heads, chief accountant. In the previous version of the Labor Code of the Russian Federation, it was allowed to conclude an agreement on full liability with the head of the organization. However, as a result of the changes made to the Labor Code of the Russian Federation by Federal Law No. 90-FZ, Art. 243 of the Code there is no mention of the head of the organization as a subject of full liability. At the same time, there is Art. 277 of the Labor Code of the Russian Federation, according to which the head of the organization bears full liability for direct actual damage caused to the organization, regardless of whether an agreement on liability was concluded.

Paragraph 9 of the Resolution clarifies that the full liability of the head of the organization for damage caused to the organization comes by force of law (for example, on the basis of Article 277 of the Labor Code of the Russian Federation or paragraph 2 of Article 71 of the Federal Law of December 26, 1995 No. 208-FZ “On joint-stock companies”, or paragraph 2 of Article 44 of the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies”). A manager who is guilty of causing damage to an organization cannot be released from compensation for material damage only on the grounds that the limits of his liability are limited by an employment contract.

Crimes and misdemeanors

When considering cases of full compensation for harm by employees who have committed crimes or administrative offenses, difficulties arise. This is due to the fact that in order to be held liable on this basis, a court verdict in a criminal case or a decision of the relevant state body in a case of an administrative offense is required.

In paragraph 11 of the Resolution, it is explained that the only basis for bringing an employee to full liability under paragraph 5 of part 1 of Art. 243 of the Labor Code of the Russian Federation is the infliction of damage as a result of criminal acts, confirmed by a sentence that has entered into legal force (including when the employee was fully or partially released from punishment, since the criminal nature of his actions was confirmed in the manner prescribed by law).

It is more difficult to resolve the issue of liability in the case when the employee was released from administrative responsibility for committing an offense due to its insignificance. There is an opinion that with little administrative offense there is no offence.

On the other hand, in paragraph 6 of Part 1 of Art. 243 of the Labor Code of the Russian Federation does not refer to punishment for an administrative offense, but to the establishment by an authorized state body of the fact of an administrative offense. Clause 12 of the Resolution clarifies that in this case the employee may also be held liable in full.

Full liability agreement

When considering cases on the recovery of direct actual damage from an employee in the presence of an agreement on full individual or collective (team) liability, it is necessary to check the presence of the following conditions simultaneously:

1) the work or position of the employee with whom the contract is concluded must be indicated in the relevant list;

2) the employee has reached the age of 18;

3) the employee directly serves or uses monetary, commodity values ​​or other property (Article 244 of the Labor Code of the Russian Federation).

Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85 approved a new The list of positions and works in the performance of which full liability is introduced, as well as standard forms of agreements on full individual or collective (team) liability were approved. Standard forms are advisory and can be changed or supplemented by provisions that do not contradict the Labor Code of the Russian Federation, in relation to the specific conditions and characteristics of the enterprise.

Compared to the previous one, the new list of persons with whom it is possible to conclude agreements on full liability has become wider. It additionally includes:

1) specialists involved in servicing ATMs;

2) specialists who issue, store and destroy bank, credit and discount cards;

3) heads of construction and installation shops and foremen engaged in construction and installation works;

4) laboratory assistants, methodologists of departments (deans), heads of library sectors, etc.

When concluding an agreement on liability, it is not the title of the position that matters, but the work actually performed by the employee. When deciding on the choice of the form of liability (individual or collective), the employer must take into account that full individual liability can be established if the following mandatory conditions are met:

1) material assets are transferred under the report to a specific employee, and it is he who is obliged to fully ensure their safety;

2) for the storage (processing, holiday, sale, etc.) of valuables, the employee, as a rule, is provided with a separate isolated room or place for storing valuables;

3) the employee independently reports to the accounting department of the organization for the values ​​​​accepted by him under the report.

All of the above follows from the content of the Standard form of an agreement on full individual liability. However, these requirements are not always met in practice, which in essence leads to the invalidity of liability agreements concluded with employees.

The imposition of liability is possible in respect of not all employees serving inventory and monetary values, but only in relation to those who hold positions or perform work related to the storage, processing, release (sale), transportation or use of these values ​​in the production process . In practice, there are cases (especially in commercial organizations), when individual financial responsibility is assigned to employees holding positions or performing work not specified in the List. For example, car drivers, engineers, mechanics, etc.

The invalidity of such contracts is obvious. However, in all cases, any condition of the employment contract that worsens the position of the employee in comparison with labor legislation is recognized as invalid.

brigade responsibility

Questions also arise when considering cases of collective (brigade) liability, the legitimacy of which is often in doubt. It is not uncommon for an employer to bring claims against not all members of the team (team) who worked during the period of damage.

In such a situation, the court is faced with the need to resolve the issue of involving all stakeholders and determine their procedural position. In paragraph 14 of the Resolution, it is explained that in accordance with Art. 43 Code of Civil Procedure of the Russian Federation, the court has the right, on its own initiative, to involve in the case on the side of the defendant as third parties against whom claims are not brought, persons who do not declare independent claims regarding the subject of the dispute, since the correct determination of the individual responsibility of each member of the team depends on this ( brigades).

Since the persons with whom an agreement on collective (team) liability has been concluded bear it in a shared, and not in a subsidiary manner, when determining the amount of damage to be compensated by each of the defendants, the court must take into account the degree of guilt of each member of the collective (team), the amount the monthly tariff rate (official salary) of each person, the time that he actually worked as part of a team (team) for the period from the last inventory to the day the damage was discovered.

Clause 16 of the Decree contains an important clarification based on the shared nature of collective material liability: reducing the amount of damage in case of collective (team) liability is permissible, but only after determining the amounts to be recovered from each member of the collective (team), since the degree of guilt, specific circumstances for each member of the team (team) may be different (for example, the effective or indifferent attitude of the employee to the prevention or reduction of damage, etc.). At the same time, a reduction in the size of the penalty from one or more members of the team (team) cannot serve as a basis for a corresponding increase in the size of the penalty from other members of the team (team).

This is due to the fact that it is impossible to distinguish between the responsibility of each employee for causing damage. A written agreement on collective (brigade) liability for the damage caused is concluded between the employer and all members of the collective (brigade). When recovering damages in court, the degree of guilt of each member of the team (team) is determined by the court. Labor legislation provides for the liability of the employer for damage caused to the property of the employee. According to Art. 235 of the Labor Code of the Russian Federation, the employer who caused damage to the property of the employee compensates for this damage in full. The amount of damage is calculated at market prices in force in the given area on the day of compensation for damage. With the consent of the employee, the damage can be compensated in kind. The employee's claim for damages is sent to the employer.

1.5.3. individual labor disputes about disciplinary

At the same time, the degree of error of the employee regarding his right to self-defense must be taken into account by the employer when choosing a disciplinary measure. Taking into account the provisions of the Labor Code of the Russian Federation, an approximate list of labor misconduct is as follows: a) the absence of an employee without good reasons at work or in the workplace. It should be borne in mind that if the employment contract concluded with the employee, or the local act of the employer (order, schedule, etc.) does not specify a specific workplace this employee, then in the event of a dispute over the question of where the employee should be in the performance of his job duties, it is necessary to proceed from the fact that, by virtue of Art.
6 art.

Disputes related to bringing an employee to disciplinary liability

Info

What and how should an employee do, what should he know and be able to do, what results should he achieve in his labor activity and by what means, how he should act in this or that case connected with work. All this data can be obtained by analyzing the content of a written employment contract, job descriptions and regulations developed and in force in the organization, technical rules, qualification reference books. The content of specific actions of an employee can naturally change depending on the time, conditions and circumstances that he may encounter while performing their job duties.

But, as a rule, in all cases, the employer does not have the right to require the employee to perform certain actions that go beyond the scope of the function stipulated by the employment contract. According to Art.

An error occurred.

If the need to conclude an agreement on full liability arose after the conclusion of an employment contract with an employee and is due to the fact that in connection with a change in the current legislation, the position held by him or the work performed is included in the list of positions and works replaced or performed by employees with whom the employer can conclude written agreements on full liability, however, the employee refused to conclude such an agreement, the employer, by virtue of Part 3 of Art. 73 of the Labor Code of the Russian Federation is obliged to offer him another job, and in the absence of it or the employee’s refusal from the proposed job, the employment contract is terminated with him in accordance with paragraph 7 of Art. 77 of the Labor Code of the Russian Federation, i.e. for refusing to continue work due to a change essential conditions labor. The law does not provide for the right of the employer without the consent of the employee to prematurely recall him from leave to work.

Individual labor disputes related to employee liability

It should be remembered that Labor Code The Russian Federation provides for a rule according to which an employment contract or concluded in writing the agreement attached to it may specify the liability of the parties to the employment contract. The student must carefully study the regulations and jurisprudence related to the procedure for attracting an employee and various types disciplinary and financial responsibility.
Special literature 1. Gusov KN, Poletaev Yu.N. Responsibility under Russian labor law. M., 2008. 2. Gusov K.N., Fedin V.V. Responsibility of an employee according to the norms of the Labor Code: material and disciplinary responsibility // Reference book of the personnel officer.

2003. No. 2. 3. Dolinskaya V.V. Compensation for harm caused to human life and health during the reorganization of the tortfeasor // Labor Law. 2006. No. 9. 4. Dubrovan A.
The employer has the right, on his own initiative, at the request of the employee or the representative body of employees, to withdraw the penalty before the expiration of one year from the date of its application. About early withdrawal disciplinary action an order (instruction) is issued official who imposed this penalty.
An employee from whom a disciplinary sanction is removed ahead of schedule is considered not to have been sanctioned. Liability of the parties to the employment contract.
Liability is one of the types of legal liability and is an independent institution labor law Therefore, compensation for damage is made regardless of bringing the employee to disciplinary, administrative or criminal liability for actions or inaction that caused damage.
Judgment is announced publicly, but the press and the public may be excluded from all or part of the trial for reasons of morality, public order, or national security in a democratic society, or when the interests of minors so require or for the protection of privacy parties or, to the extent strictly necessary in the opinion of the court, in special circumstances where publicity would prejudice the interests of justice. 2. The specificity of labor law is the presence of a special source, a special form - local act regulating organizational relations and establishing working conditions: a system wages, work schedule, etc.

There is a question of the quality of local acts that establish certain norms of behavior.

Litigation related to disciplinary and material liability

Attention

Disciplinary liability is the obligation of the employee to be punished under the labor law for guilty, unlawful failure to perform or improper performance of their labor duties. It is important to understand that the basis of disciplinary responsibility is always a specific disciplinary offense.

If there is no disciplinary offense, then the employee cannot be brought to disciplinary responsibility, since bringing an employee to disciplinary responsibility always involves the use of a disciplinary procedure defined by law, then it is necessary to study in detail Art. 193 of the Labor Code of the Russian Federation.

Important

Code of Administrative Offenses of the Russian Federation government inspectors labor in the exercise of their activities of supervision and control over compliance with labor legislation have the right to bring to administrative responsibility in the manner prescribed by the legislation of the Russian Federation, persons guilty of violating laws and other normative legal acts containing labor law norms. Bringing to administrative responsibility does not exclude the disciplinary liability of an employee for committing the same misconduct.

It does not apply to disciplinary liability and the deduction of bonuses to an employee for poor-quality work, since in this case It is about the application of the system of remuneration. Since the disciplinary and material liability of an employee relate to different types of liability, it is possible to apply them simultaneously.

If the employee refused to certify in writing the disclosure of the contents of the order to him, an appropriate act is drawn up confirming this circumstance. In Part 7 of Art. 193 of the Labor Code of the Russian Federation states that an employee has the right to appeal a disciplinary sanction to the State Labor Inspectorate or to the bodies for the consideration of individual labor disputes. However, this provision of the law does not mean that applying to the State Labor Inspectorate excludes the possibility of subsequently applying to the court to resolve the dispute on the legality of the applied disciplinary sanction. The right to judicial protection remains in this case as well.

One of the most frequent types of individual legal disputes is challenging disciplinary sanctions imposed on an employee by an employer. In the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2, it is explained that the employer, within the framework of the action proceedings, is obliged to prove that he has established that the employee has committed a disciplinary offense (guilty failure to perform or improper performance of the assigned labor duties), and also that the penalty applied is commensurate with the committed misconduct and adequately to the personality of the employee, that is, it is taken into account general attitude employee to their duties.

In other words, the employer is obliged to prove compliance with the procedure for bringing the employee to disciplinary responsibility. In cases of contesting a disciplinary sanction, there are the following features: 1.
An employee whose level of knowledge does not correspond to the one required for the position is recognized as guilty, but only if the employee's specialty requires such knowledge. Otherwise, there is no fault. Such a strict order of involvement is a manifestation of the presumption of innocence, the wording of which is absent in the text of the Labor Code of the Russian Federation. However, in accordance with Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Concluded in Rome on 04.11.1950) (hereinafter referred to as the Convention) everyone, in the event of a dispute about his civil rights and obligations or in the event of any criminal charge being brought against him, has the right to a fair and public hearing of the case within a reasonable time by an independent and impartial tribunal established by law.

The employer is obliged to compensate the employee for material damage caused to him by illegal deprivation of his opportunity to work (Article 234 of the Labor Code of the Russian Federation). Such liability of the employer occurs if the employee does not receive earnings as a result of:

illegal suspension an employee from work, dismissal or transfer to another job;

the employer's refusal to execute or untimely execution of the decision of the labor dispute settlement body or the state legal labor inspector to reinstate the employee in his previous job;

delays by the employer of the issuance to the employee work book, introducing into the non-correct or non-compliant wording of the reason for dismissal.

According to the legislator, this is an exhaustive list. Until 2006 Art. 234 of the Labor Code of the Russian Federation contained an indication of other cases provided for by federal laws and the collective agreement.

Currently, the most common grounds for bringing an employer to liability is illegal suspension from work, dismissal or transfer to another job. Suspension from work, dismissal and transfer to another job are regulated by the current labor legislation. In the cases provided for by Art. 76 of the Labor Code of the Russian Federation, the employer is obliged to remove, not allow the employee to work. Therefore, most often it is not the very fact of suspending an employee from work that is illegal, but the procedure for applying such suspension is violated, which makes the corresponding order (instruction) of the employer illegal. So, when dismissing an employee who appeared at work in a state of alcohol, drugs or other toxic intoxication, his medical examination is not carried out or an act is not drawn up on his appearance in this form at the workplace.

There are frequent cases of transferring an employee at the initiative of the employer to another job without his consent, prompting the employee instead of an employment contract concluded for an indefinite period, to agree to fixed-term contract, or under the threat of dismissal, switch to part-time, work week.

In small businesses, when hiring, employers often do not draw up a work book despite the requirements of the employee.

The employer is liable for damage caused to the property of the employee. Such liability arises in case of damage, damage, loss of outer clothing, headgear, other things belonging to the employee, even if he did not transfer them to the cloakroom for safekeeping. They can be stored at the workplace, on the territory of the organization in specially designated places.

The property of the employee includes monetary values. Local regulatory legal acts may provide for the obligation of the employer, in the event of postponement of the vacation, to compensate the employee for the unreimbursable costs incurred by him for the purchase of tickets, hotel reservations, etc.

The legislator pays special attention to the timely payment of wages and other payments due to the employee in market economic conditions.

Ensuring the right of every employee to the timely and full payment of a fair wage, which ensures a worthy existence for him and his family, is enshrined in the Labor Code of the Russian Federation as a basic principle of labor law (Article 2). A similar obligation of the employer is contained in Art. 22 of the Labor Code of the Russian Federation: “To pay in full the wages due to employees within the time limits established in accordance with this Code, the collective agreement, the rules of the internal work schedule, labor contracts.

In market conditions of managing the delay by the employer of wages is widespread. It has become commonplace. The responsibility of the employer in such cases occurs regardless of his fault.

The legislator has provided a number of guarantees for the employee, encouraging the employer to pay him in a timely manner. So, if the payment of wages is delayed for more than 15 days, the employee has the right, by notifying the employer in writing, to suspend work for the entire period until the payment of the delayed amount (part 2 of article 142 of the Labor Code of the Russian Federation). In case of untimely payment to the employee of annual paid leave, the employer, upon the written application of the employee, is obliged to postpone such leave for another period agreed with him (part 2 of article 124 of the Labor Code of the Russian Federation).

In case of violation by the employer of the established deadline for paying wages, vacation pay and other payments due to the employee, the employer is obliged to additionally pay him monetary compensation in the amount of not less than 1/300 of the refinancing rate of the Central Bank of the Russian Federation in force at that time from the delayed amounts for each day, starting from the next day after the due date up to and including the day of actual settlement. The size monetary compensation employee may be established by a collective or labor contract. At the same time, it cannot be lower than it is provided for by law (Article 236 of the Labor Code of the Russian Federation).

In cases where the financial situation of the organization does not allow the employer to pay off the employees within the prescribed period, a debt repayment schedule is drawn up, and in extreme cases, the organization, the employer - an individual, is declared bankrupt.

The employer is also liable in case of damage to the life and health of the employee. Such liability is regulated mainly by the norms of civil law.

Violation by an employer of applicable labor laws usually causes an employee mental or physical suffering. Concept definition moral damage in case of violation of the labor rights of workers, it was given in the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 20, 1994 No. 10 “Some questions of the application of legislation on compensation for moral damage”. According to the Supreme Court of the Russian Federation. moral or physical suffering can be caused by the action or inaction of the employer, infringing on material goods belonging to the citizen from birth or by virtue of the law (life, health, dignity, business reputation, privacy, personal and family secrets, etc.) or violating his personal non-property rights (the right to use his name, the right of authorship and other non-property rights in accordance with the law on the protection of rights to the results of intellectual activity) or violating property rights citizens.

From the above definition it follows that compensation for moral damage is possible in case of a guilty offense by the employer, firstly, the natural rights of the employee, belonging to him from birth or by virtue of the law, both property and non-property; secondly, his personal non-property rights; thirdly, the property rights of the employee.

An employer’s offense can be expressed in certain actions: it can be discrimination in the field of work, dismissal without a legal basis or in violation of the established procedure, illegal transfer to another job, unreasonable disciplinary action, etc.

Guilty inaction of the employer, violating the rights of the employee, is manifested, for example, in violation of the rules for conducting the technical process (failure to eliminate the malfunction in the equipment, failure to take the necessary measures to provide the employee with raw materials, materials, semi-finished products of proper quality, failure to familiarize him with new or updated technological instructions, labor protection rules, which led to the release of defective products, and, accordingly, a decrease in the employee's earnings).

Guilty inaction of the employer may take place in case of non-execution of decisions of the judicial authorities on the reinstatement of an illegally dismissed employee in his previous job, etc.

Moral damage caused to an employee in the course of work is compensated in cash. Its size is determined by agreement of the parties. If the employee, in negotiations with the employer, could not agree on the need for compensation for non-pecuniary damage, or the parties did not reach an agreement on its size, then the employee can go to court. The court has the right to satisfy the requirements of the employee if the fact of the guilty infliction of moral harm by the employer on him is proved. In this case, the amount of compensation to the employee is determined by the court, regardless of the property damage subject to compensation (part 2 of article 237 of the Labor Code of the Russian Federation).

According to the Supreme Court of the Russian Federation, the amount of compensation for non-pecuniary damage is determined by the court based on the specific circumstances of each case, taking into account the scope and nature of the moral or physical suffering inflicted on the employee, the degree of guilt of the employer, other noteworthy circumstances, as well as the requirements of reasonableness and justice.

Liability of the parties to labor relations: the responsibility of the employer to the employee

Home > Consultations > legal support > Liability of the parties to labor relations: the responsibility 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 Chapter 38 of the Labor Code of the Russian Federation. The liability of the employer is possible in the following cases:

• compensation to an employee for material damage caused as a result of illegal deprivation of his opportunity to work: illegal suspension from work (Article 76 of the Labor Code of the Russian Federation), illegal transfer (Articles 72, 73), illegal dismissal (Articles 77-84), the employer's refusal to execute or untimely and 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), delay in issuing a work book (Article 84.1), inclusion in the labor a book of incorrect or non-compliant wording of the reason for dismissal of an employee (Article 66), failure to comply with the statutory deadlines for warning an employee about an upcoming dismissal (clause 7, Article 77, subparagraphs 1, 2, Article 81, Article 180) and more;
• 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, 140-142 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. Damage will be reimbursed 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, he has the right to go to court.

The employer is obliged to compensate in cash the moral damage caused to the employee by illegal actions (for example, in the case of an illegal transfer, illegal dismissal, in case of employment discrimination). 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.

Violation by the employer of the current labor legislation usually causes moral or physical suffering to the employee. The definition of the concept of non-pecuniary damage in case of violation of the labor rights of workers was given in the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 20, 1994 No. 10 “Some questions of the application of legislation on compensation for moral damage”. According to the Supreme Court of the Russian Federation, moral or physical suffering can be caused by the action or inaction of the employer, infringing on the material benefits belonging to the citizen from birth or by virtue of the law (life, health, personal dignity, business reputation, privacy, personal and family secrets and etc.) or violating his personal non-property rights (the right to use his name, the right of authorship and other non-property rights in accordance with the law on the protection of rights to the results of intellectual activity) or violating the property rights of citizens.

In the Labor Code of the Russian Federation in Art. 236 establishes the rules for the liability of the employer to the employee - for the delay in the payment of wages. In these cases, the employer is obliged to pay all the amounts 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 of the Central Bank of the Russian Federation from the amounts not paid on time for each day of delay, starting from the next day after the due date of payment up to and including the day of actual settlement. By Directive of the Bank of Russia No. 2873-U dated September 13, 2012, effective September 14, 2012, the Bank of Russia refinancing rate is set at 8.25% per annum. The amount of compensation may be increased by a collective or labor agreement.

Interest accrual in connection with late payment 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.

An employee may be harmed by injury, occupational disease or other damage to health in the performance of his job duties. Such relations are regulated by the Federal Law of July 24, 1998 "On Mandatory social insurance from accidents at work and occupational diseases” (as amended on September 30, 2015). 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.

Accident at work - an event as a result of which the insured received an injury or other damage to health in the performance of duties under an employment contract and in other cases established by this Federal Law both on the territory of the insured and outside it or while traveling to the place of work or return from the place of work on the transport provided by the insured, and which entailed the need to transfer the insured to another job, temporary or permanent loss of his professional ability to work or his death

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.

At present, these types of compensation for harm to an employee (except for moral damage) are made not by employers from their own funds, but by the Social Insurance Fund of the Russian Federation (insurer), to which employers (insureds) contribute insurance premiums for the workers. These relations go beyond the scope of labor law, therefore, compensation for harm is regulated by another branch of law - social security law.

§ 2. Liability of the employer to the employee

In the legal literature, there are three groups of cases of the employer's liability to the employee, depending on the violation of the employee's labor rights245.

The first group includes compensation for property damage resulting from a violation by the employer of the employee's right to work.

The second group combines cases of compensation for harm resulting from a violation of the employee's right to health protection, to healthy and safe working conditions in connection with causing him an industrial injury or occupational disease.

The third group includes cases of compensation to the employee for damage caused by the violation by the employer of other rights of the employee in labor relations, for example, the right to protect his personal property, in connection with the failure to ensure the safety of the employee's personal belongings during work.

Among the violations of the rights of workers in labor relations, the most common is the violation of the right to work. In accordance with Article 234 of the Labor Code of the Russian Federation, the employer is obliged to reimburse the employee for earnings that he did not receive in all cases of illegal deprivation of his opportunity to work. Such an obligation, in particular, arises if earnings are not received as a result of: illegal removal of an employee from work, his dismissal or transfer to another job; 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; 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; in other cases stipulated by federal laws and the collective agreement.

Compensation to an employee for an unrealized opportunity to work and receive, as a result of labor, a specific wage, established in accordance with an employment contract, from this or another employer is provided for by Article 165 of the Labor Code of the Russian Federation. In this case, all earnings not received for the period of time during which the employee is deprived of the opportunity to work in accordance with the terms of the employment contract are subject to compensation. this employer or conclude an employment contract with another employer in connection with the non-issuance of a work book to him or the presence of an incorrect wording of the reason for dismissal.

Earnings for the entire period of time until the employee is reinstated in his previous job or the employer provides the opportunity to start it, as well as earnings for the period of time before the actual issuance of the work book or the correct formulation of the reason for dismissal, will be considered not received. In the latter case, both earnings from this employer for the period from dismissal to the issuance of the work book or the correct wording of it, and earnings from another employer that could have been received by the employee during this period and actually not received by him due to the absence of a work book or an incorrect formulation of the reason for dismissal.

In particular, if it is proved that the date of employment could be the date of issue of the work book or the date closest to it, the wording of the reason for dismissal affected the terms of the concluded employment contract or its conclusion, then the employee, in accordance with Article 394 of the Labor Code of the Russian Federation, can prove the amount damages based on earnings not received from another employer for the entire time of forced absenteeism or based on the presence of a difference in earnings for the entire time of performance underpaid work or trials until corrections are made to the work book246.

If the court recognizes the refusal to hire as illegal, the employee who has been discriminated against or unreasonably refused to conclude an employment contract has the right, if the employer is at fault, to receive compensation for the unrealized opportunity to work in the amount of unrealized earnings from him for the entire period of time until the restoration of his labor rights .

In cases of unlawful suspension from work, transfer of an employee to another job with this employer, only that part of the earnings that the employee did not receive as a result of such suspension or transfer is subject to compensation (the amount of receivable earnings minus that received over the same period of time from this employer) . Other payments received from this employer for the same period of time ( severance pay, temporary disability allowance), are subject to offset when collecting earnings.

The amount of material damage to be compensated by the employer (lost earnings) is proved by the employee. At the same time, information on the size of the average salary of the employee for the previous period of time, the existence of conditions in the employment contract, and other evidence are taken into account. The employer has the right to prove the legality of his actions or inaction, the absence of his fault, including in the event of a delay in issuing a work book. The guilt of the employer is assumed in case of refusal to comply with the decision of the body for the consideration of labor disputes or the state legal labor inspector on the reinstatement of the employee in his previous job and the delay in issuing a work book to the employee.

The second group combines cases of compensation to an employee for harm resulting from a violation of the employee's right to health protection, to healthy and safe working conditions in connection with causing him an industrial injury or occupational disease. These issues are discussed in those sections of this manual that are devoted to guarantees and compensations to employees in case of temporary disability, as well as in case of an accident at work and occupational disease (Articles 183, 184 of the Labor Code of the Russian Federation).

The liability of the employer for damage caused to the property of the employee is provided for by Article 235 of the Labor Code of the Russian Federation, according to which the employer, who caused damage to the property of the employee, compensates for this damage in full.

In the course of the employee's performance of his labor function or due to the impact of production factors, the occurrence of emergency or emergency circumstances (fire, collapse of a building) or as a result of the actions of the employer, the employee's property may be damaged. If the damage arose through the fault of the employer, then it is subject to compensation to the employee in full.

The fault of the employer is assumed in cases of failure by him to fulfill his obligation to ensure safe conditions and labor protection, non-compliance of production facilities and products with labor protection requirements, as well as in cases of damage at the workplace or other place under the control of the employer, by any unknown persons who find themselves there due to improper provision by the employer of their exclusion from these places. Any property entrusted to the employer for safekeeping must be returned to the employee in the same quantity and condition. The employer is obliged to take measures to preserve and prevent the possibility of causing damage to property, to stop the actions of other employees and other persons that harm him.

The employer is not liable for damage to the employee's property caused as a result of illegal actions of other (known) persons, including other employees. In this case, the harm is compensated by these persons in a civil law manner. The employer is not liable for damage to the property of the employee that occurred in the course of the performance of his labor duties, as a result of an accident or other circumstances that exclude the fault of the employer (force majeure, the fault of the injured employee).

If damage is caused to personal property used by the employee with the consent or knowledge of the employer and in his interests, for which the employee is paid compensation for use, wear and tear and expenses associated with its use, then the employer is liable only for damage in excess of the normal (planned or permissible ) decrease in the value of this property as a result of this use (depreciation established by agreement of the parties). The amount and procedure for compensation for such damage are determined in a written agreement providing for the reimbursement of expenses resulting from the use of the employee's personal property.

The amount of damage is calculated at market prices in force in the area at the time of its compensation.

The employee's claim for damages is sent 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. 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 go to court.

In order to put into practice the principles legal regulation labor relations, consisting in the prohibition of forced labor, ensuring the right of each employee to the timely and full payment of a fair wage that ensures a decent existence for the employee and his family, the Labor Code of the Russian Federation for the first time defined the liability of the employer for delayed payment of wages.

According to Article 236 of the Labor Code of the Russian Federation, liability arises 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 in full the wages due to employees within the time limits established by the Labor Code of the Russian Federation, the collective agreement, the internal labor regulations of the organization, labor contracts. Violation of the established deadlines for the payment of wages or payment of wages not in full are referred to as forced labor. The employer and (or) his representatives, duly authorized by him, who have delayed the payment of wages to employees, are liable in accordance with the Labor Code and other federal laws. Representatives of the employer may be the heads of branches, representative offices and structural divisions of organizations and other employees, endowed (by proxy, constituent documents or regulatory act, act of the governing body) with the right to issue wages to employees.

A delay in the payment of wages is considered to be its non-payment on the day established by the internal labor regulations of the organization, a collective agreement, an employment contract, and if the day of payment coincides with a day off or non-working holiday, its non-payment on the eve of this day. Payment days must be established at least within each half of the month, with the exception of certain categories of employees for whom federal laws establish other terms for paying wages. A delay in payment for a vacation is the payment made later than three days before the start of the vacation.

The delay in payments to the employee upon dismissal, if he worked on the day of dismissal, will be the failure to pay him on that day all the amounts due from the employer. If the employee did not work on the day of dismissal, then the non-payment of the corresponding amounts during the day when the dismissed employee presented the demand for payment, or the day following it, is considered a delay in payments. In this case, the following business day may be recognized as the next day, since the employee’s claim presented in the afternoon on the eve of a weekend or non-working day holiday may be practically impossible through no fault of the employer.

Other payments due to the employee are also subject to monetary compensation in cases of delay in their payment due to the fault of the employer. Other payments are: downtime payment, reimbursement of expenses related to business trip, when moving to work in another area, reimbursement of expenses in case of use of the employee's personal property, payment of temporary disability benefits, payment of other compensations.

When establishing guilt, the employer, in accordance with Article 236 of the Labor Code of the Russian Federation, is obliged to pay all the amounts due to the employee with the payment of interest (monetary compensation) in the amount of not less than one three hundredth of the refinancing rate of the Central Bank of the Russian Federation in force at that time from the amounts not paid on time for each day of delay, starting from the next day after the due date of payment up to and including the day of actual settlement.

Thus, the Labor Code of the Russian Federation established an increased (compared to Article 395 of the Civil Code of the Russian Federation) liability of the employer for the use of the employee's funds. This is due to the stronger position of the employer as a party to labor relations. In the event of a delay in the payment of wages for more than fifteen days, the employee has the right, by notifying the employer in writing, to suspend work for the entire period of time until the payment of the delayed amount, except in special cases247.

The employer is obliged to independently accrue monetary compensation in case of delay in payments to the employee and issue it without any special request from the employee.

In cases where the employer refuses to pay the employee or fails to pay interest, the employee has the right to apply to the labor dispute resolution body (CCC or court) within three months from the date set for payment or from the date of receipt of payment without interest payable. The employee's monetary claims for the payment of interest, if they are recognized as justified, are satisfied in full

The specific amount of monetary compensation for delayed payments due to the employee (not lower than that established by the Labor Code) is determined by the collective or labor contract, and in the absence of a condition for this in them, it is taken equal to that established by the Labor Code of the Russian Federation.

An employee may suffer not only property, in connection with the performance of his labor duties, but also moral harm. In accordance with Article 237 of the Labor Code of the Russian Federation, moral damage caused to an employee by unlawful actions or inaction of the employer is compensated to the employee in cash in the amount determined by agreement of the parties to the employment contract. According to Article 151 of the Civil Code of the Russian Federation, moral harm is understood as physical or moral suffering caused by the actions or inaction of the employer, violating the personal non-property rights of the employee or encroaching on other intangible benefits belonging to him.

Thus, the condition for compensation for non-pecuniary damage is the unlawfulness of the actions or omissions of the employer. The Labor Code established monetary form compensation and the procedure for determining its amount. The amount of compensation for moral damage to an employee is established in each specific case by an agreement between the employee and the employer, and in the event of a dispute between them, it is determined by the court. Regardless of the amount of property damage subject to compensation, the court has the right to satisfy the employee's claim for compensation for moral damage, establishing the fact of its infliction to the employee.

The Labor Code of the Russian Federation and federal laws establish a number of cases in which an employee may be compensated for moral harm. These include cases of dismissal of an employee without a legal basis or in violation of the established procedure for dismissal, illegal transfer to another job, cases of discrimination in the field of work. Moral damage may be subject to compensation in other cases, in particular, in case of violation of the rules governing the processing and protection of the employee's personal data. In accordance with the Federal Law “On Compulsory Social Insurance Against Accidents at Work and Occupational Diseases”248 compensation to the insured person for moral damage caused in connection with an accident at work or occupational disease is carried out by its causer, which primarily means the relevant employer.

The fact of the presence of moral damage, a causal relationship with the unlawful actions or inaction of the employer and the latter's guilt in causing it must be proven by the employee.

The degree of moral or physical suffering is assessed by the court, taking into account the actual circumstances of the infliction of moral harm, the individual characteristics of the victim and other specific circumstances indicating the severity of the suffering suffered by him. The court has the right to consider a claim filed for compensation for moral or physical suffering caused to a person, regardless of the consideration of any property claims, since, under the law, liability for moral harm can be applied both along with property liability and independently249.

In case of causing property damage to the employer, the employee may be held liable. When determining the amount of damage, only direct actual damage is taken into account; lost income (lost profit) is not taken into account. Under direct actual damage according to Art. 238 of the Labor Code of the Russian Federation is understood as a real decrease in the employer’s cash property or deterioration of the said property (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs or excessive payments for the acquisition, restoration property or to compensate for damage caused by the employee to third parties.

Damage may include shortage and damage to valuables, the cost of repairing damaged property, penalties for non-fulfillment of economic obligations.

Whereas, in accordance with Art. 393 of the Labor Code of the Russian Federation, when applying to the court with a claim for claims arising from labor relations, only employees are exempted from paying duties and court costs, the employer, when filing a claim for compensation for damage caused by an employee, is obliged to pay a state fee in the amount provided for in subpara. 1 p. 1 art. 333.19 of the second part of the Tax Code of the Russian Federation.

As you know, the liability of an employee occurs when the following conditions are present simultaneously:

• 1) direct actual damage to the cash, real property of the employer;
• 2) the unlawful nature of the behavior of the employee (the damage was caused due to non-performance or improper performance of labor duties);
• 3) a causal relationship between the illegal action (inaction) and the resulting damage;
• 4) the fault of the employee who caused the damage in the form of intent or negligence.

All of these conditions are mandatory, and in the absence of at least one of them, employees cannot be held liable.

So, disputes about bringing an employee to liability arise at the initiative of the employer, in connection with which it is the latter who is obliged to prove the existence of all four conditions for the onset of liability, as well as facts indicating that the deadlines for bringing the employee to liability have been met and that there are no grounds, according to by which the employee can be relieved of such liability.

In this regard, paragraph 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52 emphasizes that the circumstances that are essential for the correct resolution of the case on compensation for damage by the employee, the obligation to prove which is assigned to the employer, in particular, include : the absence of circumstances excluding the liability of the employee; unlawfulness of the behavior (action or inaction) of the tortfeasor; fault of the employee in causing damage; causal relationship between the employee's behavior and the resulting damage; the presence of direct actual damage; the amount of damage caused; compliance with the rules for concluding an agreement on full liability.

In the event of a dispute regarding compensation for material damage caused to the employer, the employee also cannot evade the process of proving. He must provide evidence confirming his arguments about the impossibility of presenting claims against him from the employer regarding compensation for damage.

If the employer proves the legitimacy of the employee to conclude an agreement on full liability and the employee has a shortage, the latter is obliged to prove that he is not guilty of causing damage.

As noted in sub. "c" paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of April 14, 1988 No. 2 "On the preparation of civil cases for trial", in cases of the category under consideration, job descriptions defining labor functions of the defendant, evidence confirming the fact of causing and the amount of damage, certificates of wages, family and financial status of the defendant, and in a claim for full compensation for the damage caused, in addition, a copy of the agreement on full individual liability, collation statements, an audit report, invoices , copies of the verdict, etc.

According to Art. 239 of the Labor Code of the Russian Federation, an employee cannot be held liable if the damage arose as a result of 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 entrusted to the employee.

Normal economic risk may include the actions of an employee that correspond to modern knowledge and experience, when the set goal could not be achieved otherwise, the employee duly performed the duties assigned to him, showed a certain degree of care and discretion, took measures to prevent damage, and the object risks were material values, and not the life and health of people (paragraph 5 of the decision of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 No. 52).

The employer is obliged to create for employees the conditions necessary for normal work and ensuring the complete safety of the property entrusted to them. Failure by the employer to fulfill the obligation to ensure proper conditions for the storage of property entrusted to the employee may serve as a basis for refusing to satisfy the requirements of the employer if this caused damage.

By virtue of h. 1 Article. 238 of the Labor Code of the Russian Federation, it is not allowed to recover from employees those incomes that the employer could have received, but did not receive due to incorrect actions (inaction) of the employee.

As economic and judicial practice shows, significant material damage is caused to the employer by the use by employees for personal purposes of vehicles, equipment, mechanisms, etc., owned by the employer on the right of ownership. As a result, in addition to other losses, employers incur losses arising from the inability to operate the specified technical means for a certain period of time.

At one time, the Plenum of the Supreme Court of the USSR explained that when determining the amount of material damage caused by workers unauthorized use for personal purposes technical means(cars, tractors, truck cranes, etc.) owned by enterprises with which they have labor relations, it should be assumed that such damage, as caused not in the performance of labor (official) duties, is subject to compensation using the norms of civil law . In these cases, the damage is compensated in full, including income not received by the employer from the use of these technical means.

The legal literature provides an example of the correct resolution of such disputes in judicial practice. AT non-working time tractor driver of the Beloretsk Repair and Construction Department (RCD) B. arbitrarily used a tractor assigned to him with a trailer to transport goods of citizens. As a result of the accident that occurred due to the fault of the tractor driver, the tractor, trailer and private house were damaged. RSU, as the owner of a source of increased danger, incurred the costs of repairing a residential building, a tractor and a trailer. In addition, DCS suffered losses in the form of lost revenues, as the tractor and trailer were not used for their intended purpose for nine days due to repairs. Under such circumstances, the Burzansky district, on the basis of the norms of the Civil Code of the Russian Federation, satisfied the claim of the RSU against the defendant B. for compensation for the material damage caused by him in full, including the cost of repairing a residential building and the income not received by the employer due to the downtime of the tractor and trailer (in connection with the repair).

The above clarification and at the present time should be fully applied in practice as consistent with the provisions of the Constitution of the Russian Federation on equal protection by the state of all forms of ownership.

In accordance with Art. 240 of the Labor Code of the Russian Federation, 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.

At the same time, it should be borne in mind that the owner of the property of the organization may limit the right of the employer to refuse compensation for damage (in whole or in part) to the guilty employee 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.

Labor legislation, depending on the amount of damages to be compensated, distinguishes two types of employee liability: limited and complete. Limited Liability named due to the fact that compensation for damages is limited in relation to the employee's wages, and with full liability, the employee compensates for damages in full without restrictions.

Due to the fact that in the process of performing duties, the employee uses the means and objects of labor and thereby runs the risk of causing property damage to the employer through negligence or lack of care, the Labor Code of the Russian Federation establishes limited liability as the main type of material liability of employees.

Limited Liability consists in the obligation of the employee to compensate for direct actual damage, but not more than the limit (part) of his salary provided for by law.

The Labor Code of the Russian Federation does not contain a list of cases of damage, for which liability is established within the limits of the average monthly earnings of an employee. As practice shows, the most typical cases in which this type of liability occurs are:

• - negligent damage or destruction of the employer's property, materials, semi-finished products, products (products), as well as tools, measuring instruments, overalls and other items issued for use by the employee;
• - shortage of funds, loss of documents, complete or partial depreciation of documents, payment of a fine by the employer due to the fault of the employee or the need for the employer to make excessive payments, etc.

If the employer has filed a claim for compensation by the employee for damages within the limits of his average monthly earnings (Article 241 of the Labor Code of the Russian Federation), however, during the trial, circumstances will be established with which the law associates the onset of the employee’s full liability, the court is obliged to decide on the claims stated by the plaintiff and cannot go beyond them, because by virtue of h. 3 Article. 196 Code of Civil Procedure of the Russian Federation, such a right is granted to the court only in cases provided for by federal law.

According to Art. 242 of the Labor Code of the Russian Federation, the full liability of the employee consists in his obligation to compensate the direct actual damage caused to the employer in full. Liability in the full amount of the damage caused can be imposed only in cases provided for by the Labor Code of the Russian Federation or other federal laws.

When considering a case on compensation for direct actual damage caused to the employer in full, the employer is obliged to provide evidence showing that in accordance with the Labor Code of the Russian Federation or other federal laws, the employee can be held liable in full for the damage caused and at the time of its infliction reached the age of eighteen age, except in cases of intentional damage or damage in a state of alcoholic, narcotic or other toxic intoxication, or if the damage was caused as a result of a crime or

administrative misconduct, when an employee can be held fully liable before reaching the age of eighteen (Article 242 of the Labor Code of the Russian Federation).

Article 243 of the Labor Code of the Russian Federation contains an exhaustive list of grounds when full material liability of employees may occur. It takes place in the following cases:

• 1) when, in accordance with the Labor Code of the Russian Federation or other federal laws, the employee is held liable in full for damage caused to the employer in the performance of labor duties by the employee;
• 2) shortage of valuables entrusted to the employee on the basis of a special written agreement or received by him under a one-time document;
• 3) intentional infliction of damage;
• 4) 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 state body;
• 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.

In connection with the foregoing, the following case on a claim for full compensation for damage is of interest.

On May 20, 2003, the decision of the justice of the peace dated May 7, 2003 came into force on the recovery from the GU-UPF of the Russian Federation for the city of Moscow and the Moscow Region in favor of R. in compensation for damage caused by a road accident, 48 thousand 559 rubles. 14 kop. This decision states that on March 21, 2003, the accident occurred due to the fact that a VAZ 21213 car belonging to the Pension Fund of the Russian Federation, driven by K., drove into the oncoming traffic lane, where a collision occurred with a Volkswagen car. Passat, owned by R. The driver K. lost control of the car, which caused the accident. On May 20, 2003, the Pension Fund, as the owner of a source of increased danger, compensated R. for the damage in full, in connection with which a recourse claim was brought against driver K. for the entire amount of damage.

Satisfying the recourse claim in full, the court, when making a decision, was guided by the provisions of Art. 1081 of the Civil Code of the Russian Federation, which states that the person who compensated for the harm caused by another person (an employee in the performance of his official, official or other labor duties, a person who managed vehicle, etc.), has the right to claim back (recourse) against this person in the amount of the compensation paid.

However, in paragraph 1 of Art. 1081 of the Civil Code of the Russian Federation there is an indication that the amount of the compensation paid is collected in a recourse order, unless a different amount is established by law.

In this case, the court did not apply the proper law - the norms of Sec. XI Labor Code of the Russian Federation on the liability of the parties to the employment contract.

On October 8, 2001, K. was hired as a driver in the department for the delivery of pensions in the Main Directorate of the UPF of the Russian Federation No. 32 for Moscow and the Moscow Region. The car on which he worked and caused the traffic accident was assigned to him on July 12, 2002 in accordance with the order of the employer No. 57. His average earnings before filing a claim was 7 thousand 792 rubles.

By virtue of Art. 241 of the Labor Code of the Russian Federation for the damage caused, the employee is liable within the limits of his average monthly earnings, unless otherwise provided by the Labor Code of the Russian Federation or other federal laws. Articles 242 and 243 of the Labor Code of the Russian Federation establish the conditions for full liability. The available materials of the case do not support such conditions. The court did not cite in its decision the norms of labor law, on the basis of which a recourse claim for compensation for damage caused in the performance of labor duties should be compensated in full. Thus, imposing on K. the obligation to compensate for the damage caused by a car accident in the performance of his labor duties in full is not based on the law.

Justice of the Peace Decision of the 269th judicial district Shatura Judicial District of the Moscow Region dated June 9, 2003 was canceled, the case was sent for a new trial to the same court.

Certain features have labor disputes on collective (brigade) liability for damage.

Issues of collective (brigade) liability are regulated primarily by Art. 245 of the Labor Code of the Russian Federation. Plenum

The Supreme Court of the Russian Federation in its decision of November 16, 2006 No. 52 (p. 14) explains that the court considering the claim for damages under Art. 245 of the Labor Code of the Russian Federation, it is necessary to check whether the employer complies with statutory rules for establishing collective (team) liability. Article 245 of the Labor Code of the Russian Federation allows us to formulate the following rules and conditions for the legitimacy of establishing collective (team) liability:

• - joint performance by employees of certain types of work related to the storage, processing, sale (vacation), transportation, use or other use of the values ​​transferred to them;
• - the impossibility of delimiting the responsibility of each employee for causing damage and concluding an agreement with him on compensation for damage in full;
• - the conclusion of a written agreement on collective liability between the employer and all members of the team (team).

Under an agreement on collective (brigade) material liability, valuables are entrusted to a predetermined group of persons who are fully liable for their shortage.

Currently the only existing methodology calculation of the amount of damages to be compensated by each member of the brigade is contained in the order of the Ministry of Trade of the USSR dated August 19, 1982 No. 169 "Instructions on the procedure for applying in state trade the legislation governing the liability of workers and employees for damage caused to an enterprise, institution, organization." The damage subject to compensation caused by the collective (team) to the employer is distributed among its members in proportion to the monthly tariff rate ( official salary) and actually worked time for the period from the last inventory to the day the damage was discovered (clause 7.3 of the order).

The amount of compensation for damage by each member of the team (team) can be represented as the following formula:

where P1 is the amount of compensation for damage by a member of the team (team); C - the amount of damage caused by the team (team); Z1, 32, ..., W n - wages of members of the team (team) for the inter-inventory period according to salaries, taking into account the time worked.

On a specific example, it is possible to show how the amount of compensation for damage is calculated for each member of the team (team).

So, in CJSC "Stroymontazh" a shortage of 50,000 rubles was revealed. A team of four people, with which an agreement on collective liability was concluded, was found guilty of the damage. The last inventory was carried out two months ago.

The calculation of the amount of damages to be compensated by each member of the team is given in the table.

Name of team members	Wages for the three-month post-inventory period, rub.	Calculation of the amount of damages to be compensated, rub.	The amount of reimbursable damage, rub.
Ivanov A. N.		(50,000 × 60,000) : :(60,000 + 45,000 + +80,000 + 65,000)
Krasnov I.V.		(50,000 × 45,000) : :(60,000 + 45,000 + +80,000 + 65,000)
Prokhorov O.S.		(50,000 × 80,000) : :(60,000 + 45,000 + +80,000 + 65,000)
Tomin V. M.		(50,000 × 65,000): :(60,000 + 45,000 + +80,000 + 65,000)

Thus, collective (team) liability is a shared form of compensation for damage.

When resolving a labor dispute on compensation for damage caused by the team (team), the court has the right to reduce the amount of debt for individual members of the team (team). At the same time, it should be taken into account that a reduction in the amount of the penalty from one or more members of the team (team) cannot serve as a basis for a corresponding increase in the amount of the penalty from other members of the team (team) (paragraph 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52).

The court needs to check whether all members of the team (team) who worked during the period of the damage were sued. If the claim is not brought against all members of the team (team), the court, based on Art. 43 of the Code of Civil Procedure of the Russian Federation, has the right, on its own initiative, to involve them in the case as third parties who do not make independent claims regarding the subject of the dispute, on the side of the defendant, since the correct determination of the individual responsibility of each member of the team (team) depends on this.

In case of voluntary compensation for damage, the degree of guilt of each employee of the team is determined by agreement between all members of the specified unit and the employer.

The procedure for determining the amount of damage caused to the employer is established by Art. 246 of the Labor Code of the Russian Federation. The amount of damage caused to the employer in the event of loss and damage to property is determined by actual losses calculated on the basis of market prices in force in the area on the day the damage was caused, but not lower than the value of the property according to accounting data, taking into account the degree of wear and tear of this property. Thus, the amount of damage must be documented by the employer's credentials.

Regarding the application of Art. 246 of the Labor Code of the Russian Federation, the Plenum of the Supreme Court of the Russian Federation in its resolution of November 16, 2006 No. 52 (p. 13) gave the following explanations.

As a general rule, the amount of damage caused is determined by actual losses calculated on the basis of market prices in force in the area on the day the damage was caused. In cases where it is impossible to establish the day of damage, the employer has the right to calculate the amount of damage on the day of its discovery.

If during the time the case is being considered in court, the amount of damage caused to the employer by the loss or damage to property changes due to an increase or decrease in market prices, the court is not entitled to satisfy the employer’s claim for compensation by the employee for damage in a larger amount or the employee’s claim for damages in a smaller amount, than it was determined on the day of its infliction (discovery), since the Labor Code of the Russian Federation does not provide for such a possibility.

The federal law may establish a special procedure for determining the amount of damage subject to compensation caused to the employer by theft, deliberate damage, shortage or loss of certain types of property and other valuables, as well as in other cases when the actual amount of damage caused exceeds its nominal amount.

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 audit, the employer has the right to create a commission with the participation of specialists.

Requesting a written explanation from the employee to establish the cause of the damage is mandatory.

The audit materials must without fail contain:

• - receipt documents Money under the report on each fact of shortage, waste, etc.;
• - copies of the employment contract and the contract on full liability, if any;
• - copies of the order on hiring the employee and his job description;
• - documents confirming the expenditure of funds;
• - report on the expenditure of funds;
• - certificate of accounting on the average monthly earnings of the employee;
• – documents on the basis of which a conclusion is made about the presence of a shortage, damage, theft, fraud, abuse, etc.;
• - an act of inventory, financial and accounting check, audit report or audit, if any;
• - an explanatory note of the accountable person describing the fact of waste (shortage, unreasonable spending of money and other funds) indicating the place, time, dates, witnesses, guilty persons;
• - explanatory notes of other persons involved in this episode;
• - official (report) notes of the person who issued the valuables, about the amounts or material values ​​​​issued under the report and their shortage;
• – certificate-calculation of the shortage, signed by the chief accountant and the head of the structural unit;
• – the final act on the results of the investigation of the person who conducted the investigation, signed, dated and the relevant management resolution.

The employee and (or) his representative has the right to get acquainted with all the materials of the audit and appeal them in the manner prescribed by the Labor Code of the Russian Federation.

The procedure for recovering damages from an employee by an employer depends on a number of factors, including primarily the amount of damage.

Employees who are guilty of causing damage will be explained the procedure for its compensation and are invited to compensate the damage in whole or in part voluntarily.

Voluntary compensation for damage is applied in cases convenient for both the employee and the employer, and can be carried out in various ways: by transferring property of equal value, repairing damaged property, depositing appropriate amounts of money into the employer’s cash desk, etc. As indicated in paragraph 17 of the resolution of the Plenum of the Supreme of the Court of the Russian Federation dated November 16, 2006 No. 52, the question of the method of compensation for damage caused in cases where an employee wishes to transfer equivalent property to the plaintiff or repair damaged property as compensation for damage, is decided by the court based on the circumstances of the case and taking into account the observance of the rights and interests of both sides.

In the event that an employee refuses to voluntarily compensate for damage caused through his fault, this damage is forcibly recovered by the employer or the court.

Compensation for damage in an amount not exceeding the average monthly earnings of an employee is made by order of the employer by deduction from the salary of the person causing the damage. The employer must make such an order no later than one month from the date of the final determination of the amount of damage caused by the employee (part 1 of article 248 of the Labor Code of the Russian Federation). If the employer has not made the appropriate order within the specified period, then he can recover from the employee the damage caused only in court.

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 earnings, then recovery can only be carried out by the court.

Compensation for damage is made regardless of bringing the employee to disciplinary, administrative or criminal liability for actions or inaction that caused damage to the employer.

When the employer makes deductions from the employee's wages to compensate for the damage caused, it should be borne in mind that these deductions should not exceed the limits established by Art. 138 of the Labor Code of the Russian Federation. Thus, the total amount of all deductions for each payment of wages cannot exceed 20%, and in cases provided for by federal laws, 50% of the wages due to the employee. In the case of deductions from wages under several executive documents, the employee must in any case be retained 50% of wages.

In accordance with Art. 250 of the Labor Code of the Russian Federation, a labor dispute resolution body may, taking into account the degree and form of guilt, financial situation employee and other circumstances to reduce the amount of damage to be recovered from the employee.

Article 249 of the Labor Code of the Russian Federation provides for the possibility of bringing an employee to liability in the event of his 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. In this case, the employee will be 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 training, unless otherwise provided by the employment contract or training agreement.

So, from Art. 249 of the Labor Code of the Russian Federation it follows that the right of the employer to recover from the employee the costs of his training arises only if the following conditions are met:

• 1) the employee is sent for training by the employer;
• 2) training was carried out at the expense of the employer;
• 3) the employee quit his job before the expiration of the period stipulated by the parties;
• 4) the reason for dismissal is not valid;
• 5) the condition on the obligation of the employer to pay for training, and the employee to work after training for a certain period of time is provided for by the employment contract or agreement on training.

Judicial practice confirms that an employee who quit without good reason before the expiration of the period stipulated by the agreement on targeted training of the employee at the expense of the employer is obliged to reimburse the costs incurred by the employer when sending him to training, in proportion to the time not worked.

So, CJSC "Kemerovo mobile connection" filed a lawsuit against citizen F. for the recovery of costs associated with the training of an employee, motivating his claim by the fact that on September 3, 2001 F. was hired by CJSC Kemerovo Mobile Communications as a maintenance engineer technological systems. On January 23, 2003, a training agreement was concluded with him, according to which CJSC undertook to pay for F.'s education (3,211 euros and travel expenses in the amount of 11,232 rubles), and F., after completing the training, had to work at CJSC Kemerovo mobile communication" for at least three years, in case of dismissal before the expiration of this period - to reimburse the costs associated with training. Since F. did not fulfill the terms of the contract and quit, joint-stock company asked to recover from him 93,793 rubles. 31 kop. for training, 11,232 rubles. travel expenses and the amount of stamp duty.

By the decision of the Zavodskoy District Court of the city of Kemerovo of January 27, 2005, the claim was satisfied. The decision of the court was not challenged on cassation.

In the supervisory appeal, F. requested that this decision be annulled and that the case be sent for a new trial to the court of first instance.

By the decision of the judge of the Supreme Court of the Russian Federation of October 11, 2005, the case was requested to the Supreme Court of the Russian Federation.

The judge of the Supreme Court of the Russian Federation, having considered on November 28, 2005 the case demanded on the basis of F.'s supervisory complaint, refused to transfer it for consideration on the merits to the supervisory court, stating the following.

In accordance with Art. 387 of the Code of Civil Procedure of the Russian Federation, the grounds for canceling or changing judicial decisions of lower courts in the exercise of supervision are significant violations of the norms of substantive or procedural law.

There were no such violations in the decision of the district court.

It was established that on January 23, 2003, Kemerovo Mobile Communications CJSC (Enterprise) and citizen F. (Employee) concluded an agreement on targeted training and mutual obligations, according to which the Enterprise undertook to pay for the training of the Employee, and the Employee had to undergo training on a paid basis. basis on the job at the expense of the Enterprise in accordance with the terms of the contract.

By virtue of clause 4.3 of the said agreement, after the end training course F. undertook to work at CJSC Kemerovo Mobile Communications for at least three years, and in case of dismissal before the expiration of this period, to reimburse all the costs of the company for his education.

The defendant did not comply with the terms of the contract, according to which he had to work for the plaintiff for at least three years after training, and resigned of his own free will.

According to Art. 249 of the Labor Code of the Russian Federation, the employee is obliged to reimburse the costs incurred by the employer when sending him for training at the expense of the employer, in the event of dismissal without good reason before the expiration of the period stipulated by the employment contract or agreement on training the employee at the expense of the employer.

On the basis of this provision, the court correctly satisfied the claim.

The amount of expenses incurred by the plaintiff for the training of the defendant is due to the said contract, which has not been contested or invalidated by anyone.