The employee-employer relationship is not limited only to the fulfillment of the obligations assumed by the parties under the employment contract. They are also connected by mutual financial responsibility. Cases when an employee, through his actions or through inattention, causes damage to the employer, often occur.

Most of these situations are resolved amicably. The perpetrator voluntarily, without any consequences for his further work, compensates for the harm caused. And some insignificant losses due to the fault of employees are completely forgiven by the employer: many organizations easily write off damaged office equipment or a corporate mobile phone accidentally lost in a taxi.

However, this does not apply to incidents involving significant damage, especially if it involves intentional acts or gross misconduct. In such cases, undoubtedly, the employer has the right to demand compensation for losses, and such a right is secured by law. The employee’s financial liability for damage caused to the employer is regulated by current labor legislation.

Grounds for liability

An employee is obliged to compensate the employer for damage if he has caused direct actual damage to the organization through his actions or inaction. From the point of view of the Labor Code of the Russian Federation, such cases include the actual loss of the company’s property and a significant deterioration in its condition. This also includes all costs incurred by the organization for repairs, replacement of damaged property, as well as compensation for losses to third parties related to it. In this case, the employer’s lost profits are not subject to compensation by the employee.

Thus, the grounds for the employee’s financial liability for damage are:

• lack of cash;
• loss of accountable values;
• damage to company property;
• damage to property of third parties transferred to the employer for use and storage;
• a fine imposed on an organization due to the fault of an employee.

Under what conditions does financial liability arise?

In order for the employee to fairly bear financial responsibility, the employer must comply with several conditions:

1. Document the fact of damage.
2. Prove that the employee committed illegal actions: violated work instructions, clauses of the employment contract, legislative norms, neglected his job duties, etc.
3. Identify the cause-and-effect relationship between the action of the guilty party and the resulting damage.
4. Establish the guilt of the employee, that is, the presence of intent or negligence in his actions. In the first case, the employee is fully aware of the illegality of his actions and their consequences. In the second, there is imprudence, a frivolous attitude, when a person does not fully understand the harm from his actions and hopes to avoid a negative result.

Exemption from punishment for material damage

Causing damage to the employer can occur in such circumstances that relieve the employee from financial liability for damage:

• force majeure (natural disasters, terrorism, military clashes);
• if the employee, in the process of performing his job duties, failed to preserve the property, despite all the efforts made, and it was impossible to do otherwise;
• situations of extreme necessity and necessary defense - material damage occurred in conditions that pose a danger to the property of the company, the life and health of employees, and third parties;
• the loss of accountable property occurred due to the fact that the employer did not provide employees with conditions for the safe storage of entrusted valuables (security, alarm, individual safes, etc.).

Limits of employee financial liability

The amount within which an employee undertakes to compensate for damage to the company depends on the presence or absence of an agreement on full financial liability. If such an agreement has not been signed with the employee, then his liability is limited to his average monthly earnings.

Full property liability arises for an employee upon hiring and upon transfer to a position that involves handling accountable values. The list of positions with which employers enter into an agreement on full financial responsibility is established by the Ministry of Health and Social Development of the Russian Federation. Managers and chief accountants have property obligations automatically and do not depend on the existence of an agreement.

Employees fully compensate for damage to the employer in cases clearly defined by law:

1. Shortage of entrusted property received under a one-time power of attorney or due to the nature of work activity.
2. Committing an offense with intent.
3. Damage to property while intoxicated.
4. Causing damage as a result of a crime committed by an employee, proven in court.
5. The cause of property damage is an administrative violation.
6. Disclosure of confidential information, official and commercial secrets.
7. The damage was caused when official property was used for personal purposes.

In addition to individual property liability, there is also a collective form (team), which occurs upon the conclusion of an appropriate collective agreement. This form is appropriate when, during the joint work of a group of employees, it is not possible to determine the degree of responsibility of each of them.

How to hold an employee financially liable for damage?

If it is discovered that damage has been caused, the employer is obliged to issue an order to create a commission. Its purpose is to investigate the circumstances of the incident and establish the amount of losses to the organization due to the fault of the employee. Members of the commission consider all significant facts, collect evidence of the employee’s guilt, and assess property damage.

In this case, the culprit is required to provide a written explanation on the merits of the incident within 2 days. He also has the right to monitor the progress of the investigation and participate in it: study documents, challenge facts, and involve independent experts.

The refusal of the perpetrator to testify is recorded by a special act. The commission's conclusions are also documented (inventory acts, audits, reconciliations, etc.).

Compensation for established losses not exceeding the average monthly income of the employee is collected by order of the manager, regardless of the consent of the perpetrator. They compensate for the damage from the employee’s salary, withholding no more than 20% of it, thus stretching the payment over several months.

Voluntary compensation is issued by agreement of the parties: it can be either a lump sum payment or partial payments according to an established schedule. If the employer has no objections, the employee can compensate for losses in another way, for example, by buying new property, making repairs at his own expense, etc.

In this case, the debtor has the right to resign, but his debt will continue until full repayment. In this case, the termination of the employment contract is accompanied by the signing of an obligation to compensate for damages, which is the basis for prosecution if the former employee refuses to pay compensation.

The reluctance of the culprit to voluntarily return the costs incurred to the organization often leads the parties to court - this is the only way the employer can recover the funds due to him from his employee. The judge accepts a claim for material damage in the following situations:

• the employer did not timely collect compensation from an employee with incomplete financial liability (this must be done no later than a month from the date of the audit commission’s conclusion);
• the guilty person is not ready to compensate for damages that exceed the amount of his wages;
• the resigned employee waived his obligations to cover the losses of his former employer.

Going to court does not guarantee that the injured organization will have its claim satisfied. The judge has the right to change the amount of payment, taking into account the intent of the perpetrator, taking into account his income, the financial situation of the family, etc. The employer, in turn, can appeal this decision.

How to avoid material damage and liability?

As is known, most facts of property losses are revealed as a result of audits and inventories. Employers should more carefully control the material accounting process. It may make sense to conduct more frequent checks of employees’ accountable values, including surprise audits. Such measures make it possible to timely detect cases of misuse of official property and prevent major damage. At the same time, a financially responsible employee will have a more disciplined attitude towards the values ​​entrusted to him.

In turn, employees can protect themselves from possibly unintentional damage by working with material assets. To do this, it is important to independently check the relevance of data on accountable property and control the availability of all accompanying documents:

• When receiving property, it is necessary to check not only its quantity, but also serviceability, completeness, compliance with inventory numbers and barcodes, and other characteristics;
• acts of acceptance and transfer and other documents must be properly executed and contain all mandatory details, dates, signatures, the correct name of the transferred values ​​and their identification differences;
• maintain documentation on accountable property, update inventories and store them at the workplace;
• systematically conduct an audit/inventory, inspect property for integrity and absence of damage;
• promptly inform the accounting department/manager about the need to repair property, replace it, or write it off.

These simple rules for working with valuables will help an organization solve two important problems: ensure the safety of its property and protect the material interests of the company’s employees in the event of property disputes related to damage.

Full financial liability of an employee is his obligation to compensate direct actual damage caused to the employer in full (Part 1 of Article 242 of the Labor Code of the Russian Federation). In contrast to the incomplete financial liability of the employee, otherwise referred to as, full financial liability is applied only in certain cases. We will remind you more about them in our consultation.

Cases of full financial liability

First of all, full financial responsibility for direct actual damage caused to the organization lies with its head (Part 1 of Article 277 of the Labor Code of the Russian Federation).

Other main cases when the employee is charged with financial liability in the full amount of damage caused are provided for in Art. 243 Labor Code of the Russian Federation. This is possible when the damage is caused:

• when performing his or her job duties by an employee who, in accordance with the Labor Code of the Russian Federation or other federal laws, is entrusted with full financial responsibility;
• as a result of a shortage of valuables transferred to the employee on the basis of a special written agreement or received by him under a one-time document;
• intentionally;
• in a state of alcohol, drug or other toxic intoxication;
• as a result of the employee’s criminal actions established by a court verdict;
• as a result of an administrative violation established by the relevant government body;
• as a result of disclosure of information constituting a secret protected by law (state, official, commercial or other);
• not while the employee is performing his job duties.

In addition, full financial responsibility can be established by an employment contract, which is concluded with the deputy head of the organization, as well as with the chief accountant.

The most typical cases in organizations are cases of full financial liability, which are based on agreements concluded with employees on individual or collective financial liability. We talked about such agreements in a separate article. Let us remind you that the list of persons bearing full financial responsibility is generally limited. This means that the employer does not have the right to enter into an agreement on full financial responsibility with any employee he wants. He must necessarily check the list of positions with full financial responsibility, which is provided

The state, its structural and economic entities, and citizens in property relations bound by the principles of non-violation.

If a citizen or enterprise violates these principles, the judiciary will restore justice.

Enforcement measures are used if one of the parties caused damage to the other party by their guilty actions.

1. Damage- loss of property (part of it) in the form of loss or damage. The broader concept of “loss” includes lost profits and indirect costs of restoring damage; the concept of “harm” also includes moral consequences.
2. The following are considered guilty actions intentional acts(inaction) due to which the other party lost property or part of it.
3. Intent- actions in which a person is aware of a violation of the rules, anticipates the negative result of such actions and does not prevent it.
4. Material liability the employer to the employee under the Labor Code of the Russian Federation or vice versa - this is the obligation to compensate for the damage caused.

The state legal system regulates reimbursement issues. So material liability in labor law can be carried out:

• between legal entities in the Civil Code;
• between employers and employees in the Labor Code;
• between legal entities and individuals not bound by employment contracts: in the Civil and Criminal Codes.

Types of financial liability

The following types of liability in labor law are considered:

According to Articles 234-237 of the Labor Code of the Russian Federation, the employer’s financial liability to the employee is associated with the following possible violations:

Labor Code of the Russian Federation, Article 234. The employer’s obligation to compensate the employee for material damage caused as a result of illegal deprivation of his opportunity to work

The employer is obliged to compensate the employee for the earnings 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 to his previous job;
• delay by the employer in issuing a work book to an employee, or entering into the work book an incorrect or non-compliant wording of the reason for the employee’s dismissal.

Labor Code of the Russian Federation, Article 235. Material liability of the employer for damage caused to the employee’s property

An employer who causes damage to an employee's property shall compensate 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.

1. If the employee agrees, damages may be compensated in kind.
2. The employee's application for compensation for damage 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 employer’s decision or does not receive a response within the prescribed period, the employee has the right to go to court.

Labor Code of the Russian Federation, Article 236. Financial liability of the employer for delay in payment of wages and other payments due to the employee

If the employer violates the established deadline for payment of wages, vacation pay, dismissal payments and (or) other payments due to the employee, the employer is obliged to pay them with interest (monetary compensation) in the amount of not less than one three hundredth of the Central Bank refinancing rate in force at that time. Bank of the Russian Federation from unpaid amounts on time for each day of delay starting from the next day after the established payment deadline until the day of actual settlement inclusive. The amount of monetary compensation paid to an employee may be increased by a collective agreement, local regulation or employment contract. The obligation to pay the specified monetary compensation arises regardless of the employer’s fault.

Labor Code of the Russian Federation, Article 237. Compensation for moral damage caused to an employee

Moral damage caused to an employee by unlawful actions or inaction of the employer is compensated to the employee in cash in amounts determined by agreement of the parties to the employment contract.

In the event of a dispute, the fact of causing moral damage to the employee and the amount of compensation for it are determined by the court, regardless of the property damage subject to compensation.

Chapter 39 of the Labor Code of the Russian Federation “Financial responsibility of the employee” to the employer is covered more widely.

According to the articles that the labor code describes, material liability employee It happens:

1. financial liability (according to labor law, article 241) - an employee is liable for damage caused to the extent of his average salary.

   In this case, the employee is not considered financially responsible, this norm applies to everyone employed at the enterprise full-time and temporary employees equally.

   Labor Code of the Russian Federation, Article 241. Limits of employee’s financial liability

   For damage caused, the employee bears financial liability within the limits of his average monthly earnings, unless otherwise provided by this Code or other federal laws

2. financial liability (labor law, article 242): when damage to the enterprise must be fully compensated.

Applies to all employees without exception and to persons with whom it is concluded, if the damage was caused intentionally, by criminal acts or while intoxicated.

Labor Code of the Russian Federation, Article 242. Full financial liability of the employee

1. The employee’s full financial liability consists of his obligation to compensate the direct actual damage caused to the employer in full.
2. Financial liability in the full amount of damage caused may be assigned to the employee only in cases provided for by this Code or other federal laws.
3. Employees under the age of eighteen bear full financial liability only for intentional damage, for damage caused while under the influence of alcohol, drugs or other toxic substances, as well as for damage caused as a result of a crime or administrative offense.

Some deviations from these rules provided for by other(industry or specialized) acts of legislation.

According to separation characteristics The concept of material liability in labor law is distinguished by:

• , all facets of which are specified and comply with legal norms;
• financial liability (Article 243 of the Labor Code of the Russian Federation), when other persons have access to the property and inventory items entrusted to the employee.

Civil Code: financial liability

The norms of the Civil Code of the Russian Federation contain the following key positions in relation to the issue under consideration:

Federal Law

Paragraph 2 of the Labor Code of the Russian Federation talks about other federal laws regulating legal relations on issues of material liability. These laws relate, rather, to the state’s obligations to comply with the principle of legal equality:

1. Federal Law on the Financial Responsibility of Military Personnel No. 76 of May 27, 1998 (current edition, 2016). and the Charter of the Armed Forces of the Russian Federation: to be specified responsibility of military personnel for damage caused during military service.

   Detailed circumstances of the implementation are regulated by the Federal Law “On the Financial Responsibility of Military Personnel” dated July 12, 1999.

   Financial liability of military personnel distributed by also for citizens who undergo military training. Material and labor responsibility replaced administrative-legal and service-material.

2. Law “On Postal Services” No. 176-FZ dated July 17, 1999 No. 176-FZ: defines responsibility of postal employees for damage and shortages of postal items in attachments.
3. Law “On Accounting” No. 402-FZ dated December 6, 2011: sets participation in inventory and inspections of financially responsible persons.
4. Law No. 307-FZ “On Auditing Activities” dated December 30, 2008, regulates auditors' responsibility.
5. Law “On Police”. No. 3-ФЗ dated 02/07/2011 notes: if, in the course of performing his official duties, a police officer caused damage to citizens or organizations, such damage is compensated according to the provisions of Articles 1069 and 1070 of the Civil Code, from the budget of the state, a constituent entity of the Russian Federation or various levels of municipal formation.

Of the legislative acts of a lower level, only the key and exhaustive one should be noted list of positions and works for which full financial responsibility is required. This issue is considered by the Ministry of Labor Resolution 85 on the financial liability of an employee dated December 31, 2002.

Legal exceptions

Material liability employee (Labor Code of the Russian Federation, Article 239) does not occur in the following cases:

Labor Code of the Russian Federation, Article 239. Circumstances excluding the financial liability of an employee

The employee's financial liability is excluded in cases of damage arising due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer's failure to fulfill the obligation to provide adequate conditions for storing property entrusted to the employee.

Full responsibility according to the contract it is prohibited to impose on employees whose age has not reached 18 years.

Besides, business leaders should remember that documents executed improperly or not executed at all can hinder compensation for harm.

The presumption of innocence obliges the employer to document the fact of guilt or intent, comply with deadlines, and correctly determine the amount of damage. In case of disagreement, the issue can be resolved judicially.

To achieve the economic well-being of the entire society, it is important to preserve and increase the well-being of each of its subjects. Responsibility, including - a concrete manifestation of the goals of the rule of law.

Everything you need to know about the financial responsibility of employees is described in the following video.

Full financial responsibility of the employee (nuances)

Full financial liability of an employee implies the obligation to compensate the employer for damage caused by the employee’s guilty actions. Cases of occurrence of full financial liability and its specific features are disclosed below.

Full financial responsibility of employees. Basic provisions

In situations regulated by law, an employee may be held fully financially liable. This means that the named person has an obligation to compensate for the damage caused by the employee’s unlawful guilty act in full (Article 242 of the Labor Code of the Russian Federation of December 30, 2001 No. 197-FZ).

The following employees may be held liable for full financial liability:

• with whom an agreement on full financial responsibility was lawfully signed - by virtue of such an agreement (Article 244 of the Labor Code of the Russian Federation);
• who are heads of organizations - by force of law (Article 277 of the Labor Code of the Russian Federation);
• who are chief accountants or deputy heads of organizations, provided that their employment contracts include a clause on full financial responsibility - by virtue of such an agreement (paragraph 10 of article 243 of the Labor Code of the Russian Federation);
• in respect of which the fact of a shortage of valuables entrusted to them on the basis of a special written agreement or transferred to them under one-time documentation was revealed - by force of law (Article 243 of the Labor Code of the Russian Federation - hereinafter to the end of the list);
• intentionally causing damage;
• caused damage while under the influence of alcohol, drugs or other types of toxic substances;
• caused damage as a result of the commission of a crime (with the obligatory presence of a conviction by a judicial authority);
• causing damage as a result of an administrative offense (with the mandatory establishment of the fact of such an offense by the appropriate government agency);
• who have published information classified as a secret protected by law in cases regulated at the legislative level;
• who caused damage to the employer not while performing their own job functions (for example, during non-working hours, etc.).

Full liability agreement

A full financial liability agreement can be signed:

• with a specific employee (full individual financial responsibility);
• with a group of persons - a brigade, a collective - when employees jointly perform established types of work (full collective [team] financial responsibility).

According to the law, such an agreement must be concluded only with employees filling positions or performing work included in the “List of Positions and Works...”, approved. Resolution of the Ministry of Labor of the Russian Federation dated December 31, 2002 No. 85 (hereinafter referred to as List No. 85). Only in this case will the said agreement have legal consequences (paragraph 2 of Article 244 of the Labor Code of the Russian Federation). In addition, offering to sign such a document in situations established by law is a right, not an obligation of the employer.

If an agreement on full financial liability was concluded with a person whose age is less than 18 years, it will be considered invalid (Article 244 of the Labor Code of the Russian Federation).

In addition to the list of positions and types of work, the aforementioned resolution of the Ministry of Labor of the Russian Federation also defines standard forms of agreements on full financial responsibility. The courts indicate that it is mandatory to use the standard form of the contract as a condition for the employee’s full financial responsibility (for example, the appeal ruling of the Krasnoyarsk Regional Court dated January 30, 2013 in case No. 33-814).

When considering disputes regarding the invalidation of collective agreements on financial liability, the courts proceed from the fact that the collective (team) is a single entity. Accordingly, the impossibility of concluding this type of agreement with at least one member of a team (team) entails the recognition of such an agreement as invalid in relation to all members of the team (team) - for example, the ruling of the Chelyabinsk Regional Court dated July 4, 2011 in case No. 33-7148/2011.

Is it possible to refuse to sign an employee’s full financial liability agreement?

Employers quite often oblige their employees to enter into full financial responsibility agreements, threatening to recognize disagreement with signing it as failure to comply with management’s orders with all the ensuing consequences. Regarding this situation, the law enforcer gives the following explanations (clause 36 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2):

• if the functionality for servicing material assets is the main job responsibility, which was announced to the employee when he was hired, and this employee knew that, according to the law, the employer has the right to offer him to enter into an agreement on full financial responsibility, then if all of the above facts are present, refusal concluding the said agreement should be qualified as failure to fulfill labor duties with all the ensuing consequences (i.e., subject to disciplinary action);

• if the position of a person already hired or the functionality performed by him was eventually included by the legislator in List No. 85, then the employee who refused to enter into an agreement on full financial responsibility should be offered another job (see paragraph 3 of Article 74 of the Labor Code of the Russian Federation), and if the employee refuses it or there is no such work, then the employment contract with the named person is terminated on the basis of clause 7 of Art. 77 Labor Code of the Russian Federation.

Thus, the employer has the right to demand the signing of an agreement on full financial responsibility if, upon employment, the employee was notified of the possibility of receiving an offer to conclude this agreement in the future. It is better to immediately record the fact of such notification on paper (as a clause in an employment contract, job description or other document) in case the said dispute with an employee needs to be resolved in court and, accordingly, evidence of the employer’s compliance with this condition will be needed.

Conditions for bringing an employee to full financial liability

When considering the issue of the possibility of involvement, it is necessary to evaluate the totality of the facts listed below (clause 4 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 16, 2006 No. 52 (hereinafter referred to as PVS No. 52):

• the absence of circumstances that make it possible to exclude the employee’s financial liability (for example, full financial liability arose only by virtue of the relevant agreement, but the employee was not yet 18 years old or the damage was caused due to force majeure circumstances, etc.);
• the illegality of the actions of the entity that caused the damage;
• degree of guilt of the causer of damage;

• the presence of a cause-and-effect relationship between the employee’s act and the damage caused;
• the fact of the existence of direct actual damage (can be proven by the results of an inventory or confirmed by an act of a government agency);
• limits of damage caused;
• compliance with the requirements of the law regarding the conclusion of an agreement on full financial liability.

The employer must prove all the above circumstances.

Presumption of employee guilt

However, if the occurrence full financial responsibility of the employee must happen by virtue of the contract and the employer has proven the following facts (paragraph 2, paragraph 4 of PBC No. 52):

• the existence of legal grounds for signing an agreement on full financial responsibility with this employee;
• the fact that the named employee has a shortage of the materiel entrusted to him,

the obligation to prove the absence of guilt in one’s actions is transferred to the employee, i.e. the presumption of guilt of the employee comes into force.

As evidence of his innocence, the employee may refer, among other things, to those provided for in Art. 239 of the Labor Code of the Russian Federation, circumstances excluding financial liability. When assessing the employee’s arguments, the court also takes into account witness testimony (ruling of the Leningrad Regional Court of St. Petersburg dated February 25, 2016 in case No. 33-987/2016).

Determining the amount of damage to be compensated

Calculation of damage caused to the employer by the guilty actions of his employee is, as a general rule, made on the basis of the amounts of actual losses (Article 246 of the Labor Code of the Russian Federation). It is taken into account that the following amounts:

• are calculated on the basis of current market prices at the time of damage, characteristic of the given territory. If it is not possible to establish a specific date of harm, the employer has the right to determine its volume as of the day of discovery (paragraph 2, clause 13 of PBC No. 52);
• cannot be lower than the value of the property according to accounting information, adjusted for the percentage of depreciation of the said property.

Also, taking into account the definition of the content of the employee’s financial responsibility (see Article 238 of the Labor Code of the Russian Federation), it is necessary to understand that lost income (lost profits) cannot be included in this calculation.

Thus, the employer initially establishes the amount of damage after checking the amount of such damage and the reasons for its occurrence. In turn, if a dispute arises that cannot be resolved through negotiations between the employer and the employee who caused the harm, the court may make adjustments to the calculation submitted by the employer.

Limitation of the powers of the judicial authority when changing the amount of damage to be compensated

The judicial body is not authorized in its decision on the amount of damage to be recovered to go beyond the upper limit of the amount of the stated claims, even if during the consideration it turns out:

• that there are all grounds for bringing to full financial liability an employee in respect of whom the employer has made demands only within the limits of his average monthly earnings (clause 7 of the PBC No. 52);
• that the market prices on the basis of which the damage was calculated have increased, and the employer demands in this regard to increase the amount of damage calculated on the day of infliction (discovery) (paragraph 3, clause 13 of PVA No. 52).

On the other hand, the court cannot satisfy the employee’s petition containing a request to reduce the amount of compensation for damage due to a fall in market prices relative to those prices that were relevant on the day the damage was caused (discovered) and on the basis of which the amount of compensation was calculated by the injured party .

Reducing the amount of damages recovered in court

Provisions of Art. 250 of the Labor Code of the Russian Federation also applies to situations where full financial responsibility of the employee.

The following are subject to the court's assessment:

• the degree and form of guilt of the harm-doer. For example, the amount of damage to be compensated was reduced by the court taking into account the reckless form of the defendant’s guilt (see the decision of the Olonetsky District Court of the Republic of Karelia dated February 25, 2016 in case No. 2-133/2016);
• financial situation of the guilty employee (amount of income, number of family members, presence of dependent persons, obligation to make payments according to writs of execution, etc. - see paragraph 16 of PBC No. 52). So, for example, in the event of full financial responsibility of the employee by virtue of the agreement, the court reduced the amount of damage to be compensated due to the defendant being on maternity leave and the need to pay rent (see the decision of the Supreme Court of the Republic of Tatarstan dated March 10, 2016 in case No. 33-4094/2016);
• other circumstances that make it possible to reduce the amount of the penalty (for example, the presence of the employer’s fault in the occurrence of a situation that resulted in damage to his property - for example, the decision of the Kanashsky District Court of the Chuvash Republic dated February 18, 2016 in case No. 2-20/2016).

In this case, a complete exemption from compensation for damage is not allowed (clause 16 of the PVS No. 52). In addition, if the damage was caused by a crime committed for personal gain, then reducing its size by the judicial authority is not allowed (paragraph 2 of Article 250 of the Labor Code of the Russian Federation). In particular, the court did not take into account the promise of the employee who committed the theft of property to return the stolen property and made a decision to recover damages from the defendant in full. The defendant’s arguments about his own costs for maintaining the stolen property were also not accepted (see the decision of the Novokuznetsk District Court of the Saratov Region dated 03/09/2016 in case No. 2-114/2016).

Is the employer obliged to recover damages from the employee in the event of a case of full financial liability of the person?

An employer who has suffered damage due to the fault of his employee has the right to refuse appropriate penalties from the tortfeasor in full or in part, taking into account the circumstances of the current situation (Article 240 of the Labor Code of the Russian Federation). This right can be used by the employer, including in relation to an employee whose full financial liability has arisen by force of law or by virtue of a contract (paragraph 2, paragraph 6 of PBC No. 52).

The employer can refuse to collect before the dispute is referred to the court, as well as after the statement of claim has already been sent (see Article 39 of the Civil Procedure Code of the Russian Federation of November 14, 2002 No. 138-FZ).

At the same time, the owner of the employer’s property can limit this right of the employer in situations regulated by law.

This right of the employer cannot be freely interpreted in favor of the interested party and used in violation of the rights of others. So, for example, the employer distributed the total amount of the shortage among currently working employees who entered into an agreement with him on full collective financial responsibility, without taking into account in this distribution the same financially responsible persons who quit before the unscheduled inventory was carried out, during which such a shortage arose. The court recognized such calculations as unlawful and indicated that, provided for in Art. 240 of the Labor Code of the Russian Federation, the law does not yet relieve the employer from the need to take into account previously resigned employees when distributing responsibility (see the appeal ruling of the Perm Regional Court dated January 27, 2016 in case No. 33-386/2016). Simply put, you don’t have to make demands on them, according to Art. 240 of the Labor Code of the Russian Federation, but this should not infringe on the rights of other employees.

Entrusted and provided property - what is the difference?

Conclusion of an agreement on full financial responsibility of the employee is permissible only in relation to property entrusted to a person.

Often, concepts such as entrusted property and property provided by the employer to the employee for the latter to perform his job functions are identified by the parties to the employment contract when it comes to holding the employee financially liable for damage or destruction of the provided property.

Entrusted property is considered to be property in respect of which an employee, by virtue of official duties or a special assignment, exercises certain powers to dispose, manage, store, etc. (see “Methodological recommendations...”, approved by the FSSP of Russia dated April 15, 2013 No. 04-4 ).

In practice, cases are common when an employer tries to attract his employee - a driver with whom a contract has been concluded full financial responsibility of the employee, - to compensation for damage or loss of the car provided to the latter. However, the maximum that an employer can count on in this situation (if the occurrence of financial liability is excluded by law) is compensation for damage in an amount not exceeding the average monthly earnings of such an employee. The law enforcer explains: since the vehicle is not entrusted to the employee for transportation or delivery by the employer’s property, but represents a material and technical means that is necessary to perform the driver’s labor functions, then the validity of the agreement on full financial responsibility of the employee it does not apply (for example, the resolution of the Presidium of the St. Petersburg City Court dated March 12, 2014 in case No. 44g-38/14).

So, full financial responsibility of the employee can be established both by law and by agreement of the parties. An agreement on full financial liability gives rise to legal consequences only if it is concluded with the appropriate person.

The employer has the right to refuse, in full or in part, to recover damages caused to him by his own employee.

The law enforcement officer, taking into account the specific circumstances of the case, is entitled to reduce the amount of the employer’s claims to recover damages from the employee.

The financial liability of an employee is regulated by the norms of Chapter 39 of the Labor Code of the Russian Federation, the Regulations on the financial liability of workers and employees for damage caused to an enterprise, institution, organization, approved by Decree of the Presidium of the USSR Armed Forces of July 13, 1976 No. 4204-IX (applied to the extent that does not contradict the Labor Code of the Russian Federation and etc.

According to Article 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for direct actual damage caused to him. Direct actual damage is understood as a real decrease in the employer’s available property or deterioration in the condition of said property (including property of third parties located at the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to make costs or excessive payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties.

According to Article 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for direct actual damage caused to him. The employee’s obligation to compensate for the damage caused also arises if the employee causes harm to third parties in the case where the employer compensated for this damage for his employee.

The Labor Code of the Russian Federation limits the liability of the employee: lost income (lost profits) cannot be recovered from the employee.

The Labor Code of the Russian Federation also establishes full financial liability for certain categories of workers. There is a distinction between individual and collective (team) financial responsibility.

The head of the organization and, as a rule, bear full individual responsibility for damage caused to the organization.

Example 1. From the consulting practice of JSC " BKR -Intercom-Audit".

Having considered your question on the merits, we report the following:

Question:

Is it necessary to conclude agreements on full financial responsibility for buildings, structures, machines and communications. If necessary, then with whom (who should be responsible for buildings, communications, machines).

1. Full financial responsibility of employees.

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

The employee's financial liability may be full or limited to the employee's average earnings. The full financial responsibility of the employee consists of his obligation to compensate for the damage caused in full and can be assigned to the employee only in cases provided for by the Labor Code or other federal laws.

Article 243 of the Labor Code of the Russian Federation provides for cases when an employee bears full financial responsibility. Such cases include:

1. When, in accordance with the Labor Code of the Russian Federation or other federal laws, the employee is held financially liable for damage caused to the employer while the employee is performing his job duties;

2. Shortages of valuables entrusted to him on the basis of a special written agreement

(Article 244 of the Labor Code of the Russian Federation - written agreements on full financial liability; Article 245 of the Labor Code of the Russian Federation - collective (team) financial liability for causing damage) or received by him under a one-time document. According to one-time documents, the employer’s property can be entrusted to forwarders, couriers, heads of branches, departments, etc. In all these cases, the employee must account for the property entrusted to him in accordance with the established procedure, and in the event of its death, damage or other deterioration in condition, he must fully compensate for the damage caused;

3. Intentional causing of damage.

Intentional damage means thatthe guilty employee realizes that he is acting unlawfully, foresees that as a result, for example, damage will be caused to the employer by the fact that the machine will be disabled, communications will be damaged, etc., and wants these consequences to occur (direct intent) or although directly does not want this, but consciously allows such consequences or treats them indifferently (indirect intent), for example, when an employee operates a machine with unacceptable overloads (to reveal its maximum capabilities), although he does not directly want the machine to break down. In addition, the damage must be real (for example, a damaged machine), i.e. unlawful behavior in itself is not a sufficient basis for bringing to liability;

4. Causing damage while under the influence of alcohol, drugs or toxic substances

Intoxication. When analyzing this legal norm, it is necessary to pay attention to the following: drunkenness, as well as toxic and narcotic intoxication of an employee can be confirmed by a medical report (see Temporary Instruction of the USSR Ministry of Health (still in force) “On the procedure for medical examination to establish the fact of alcohol consumption and intoxication” dated 01.09.1988), as well as other types of evidence (for example, testimony, this norm is confirmed by paragraph 3 of paragraph 37 of the Resolution of the Supreme Court of the Russian Federation No. 16). The fact that the employee is in this state at work must be documented by the employer in a protocol drawn up by the administration, the organization’s security workers (if any), police officers, etc.;

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

6. Causing damage as a result of an administrative violation, if established by the relevant government body;

7. Disclosure of information constituting a secret protected by law (official, commercial or other), in cases provided for by federal laws.

According to Art. 39 of the Civil Code of the Russian Federation, information constitutes an official or commercial secret in the case when the information has actual or potential commercial value due to its unknownness to third parties, there is no free access to it on a legal basis and the owner of the information takes measures to protect its confidentiality. Information that cannot constitute an official or commercial secret is determined by law and other legal acts;

8. Causing damage not in the performance of work duties.

When the damage is donean employee who, at the time of causing the damage, was not performing his job duties, for example, during a lunch break, when the employee, passing by an expensive vessel, carelessly touched and broke it and it broke. However, damage can also occur outside the organization. For example, the driver of a car owned by an organization decided to take a car ride around the city after work and, as a result of an accident, crashed the car, etc. However, in any case, the organization must prove that the damage was caused by the employee not in the performance of his job duties.

In addition, financial liability in the full amount of damage caused to the employer can be established by an employment contract concluded with the head of the organization. Deputy managers, chief accountant.

2. Written agreements on full financial responsibility

In accordance with Art. 244 of the Labor Code of the Russian Federation, written agreements on full individual or collective (team) financial liability, that is, on compensation to the employer for damage caused in full for the shortage of property entrusted to employees, are concluded with employees who have reached the age of eighteen and directly service or use cash, commodity values ​​or other property.

Lists of works and categories of workers with whom these contracts can be concluded, as well as standard forms of these contracts, are approved in the manner established by the Government of the Russian Federation.

Resolution of the Ministry of Labor and Social Development of the Russian Federation dated December 31, 200. No. 85, approved the List of positions and works filled or performed by employees with whom the employer can enter into written agreements on full individual financial responsibility for the shortage of entrusted property.

This list includes:

1. Cashiers, controllers, cashier-controllers (including senior ones), as well as other employees performing the duties of cashiers (controllers).

Managers, their deputies, specialists and other employees engaged in: depository activities; examination, authentication and other verification, as well as destruction in the prescribed manner of banknotes, securities issued by a credit or other financial organization and / or the Ministry of Finance of Russia; transactions for the purchase, sale, permission to pay and other forms and types of circulation of banknotes, securities, precious metals, coins made of precious metals and other currency values; cash transactions when servicing ATMs and servicing clients who have individual safes in the vault, accounting and storage of valuables and other property of clients in the vault; operations for the issue, accounting, storage, issuance and destruction of bank, credit, discount cards, cash and other financial services to clients, for counting, recalculating or generating cash and currency values; collection functions and transportation (transportation) of cash and other valuables (including collection drivers), as well as other employees performing similar functions.

Directors, managers, administrators (including senior, chief), other heads of organizations and departments (including sections, reception areas, points, departments, halls) of trade, catering, consumer services, hotels (camping sites, motels), their deputies , assistants, sellers, commodity experts of all specializations (including senior, chief), as well as other employees performing similar functions; heads (managers) of construction and installation shops, sites and other construction and installation departments, work producers and foremen (including senior, chief) of construction and installation work.

Managers, other managers of warehouses, storerooms (points, departments), pawnshops, storage rooms, other organizations and divisions for the procurement, transportation, storage, accounting and issuance of material assets, their deputies; managers of households, commandants of buildings and other structures, storekeepers, wardrobe maids; senior nurses of healthcare organizations; procurement and/or supply agents, freight forwarders and other workers who receive, procure, store, record, issue and transport material assets.

Managers and other managers of pharmacy and other pharmaceutical organizations, departments, points and other divisions, their deputies, pharmacists, technologists, pharmacists.

Laboratory assistants, methodologists of departments, dean's offices, heads of library sectors.

2. Work: on receiving and paying all types of payments; for settlements during the sale (sale) of goods, products and services (including not through a cash register, through a cash register, without a cash register through a seller, through a waiter or other person responsible for making payments); servicing vending and cash machines; for the production and storage of all types of tickets, coupons, subscriptions (including subscriptions and food vouchers) and other signs (documents) intended for payments for services.

Work related to the implementation of: depository activities; examination, authentication and other verification, as well as destruction in the prescribed manner of banknotes, securities, issued by a credit or other financial organization and / or the Ministry of Finance of Russia forms; transactions for the purchase, sale, permission to pay and other forms and types of circulation of banknotes, securities, precious metals, coins made of precious metals and other currency values; cash transactions when servicing ATMs and servicing clients who have individual safes in the vault, recording and storing valuables and other property of clients in the vault; operations for the issue, accounting, storage, issuance and destruction of bank, credit, discount cards, cash and other financial services to customers, for counting, recalculating or generating cash and currency values; collection functions and transportation (transportation) of cash and other valuables.

Work: on the purchase (reception), sale (trade, release, sale) of services, goods (products), preparing them for sale (trade, release, sale).

Work: on acceptance for storage, processing (manufacturing), storage, accounting, release (issuance) of material assets in warehouses, bases, storerooms, points, departments, sites, in other organizations and divisions; for the issuance (reception) of material assets to persons staying in sanatorium-resort and other medical and preventive organizations, boarding houses, campsites, motels, holiday homes, hotels, hostels, rest rooms on transport, children's organizations, sports and recreational and tourist organizations, in educational organizations, as well as passengers of all types of transport; for equipping passenger ships, carriages and aircraft.

Work: to receive cultural and household items and other material assets from the population for storage, repair and to perform other operations related to the manufacture, restoration or improvement of the quality of these items (valuables), their storage and the performance of other operations with them; for the rental of cultural and household items and other material assets to the population.

Work: receiving and processing for delivery (escort) of cargo, luggage, postal items and other material assets, their delivery (escort), delivery (handover).

Work: purchase, sale, exchange, transportation, delivery, forwarding, storage, processing and use in the production process of precious and semi-precious metals, stones, synthetic corundum and other materials, as well as products made from them.

Work: raising, fattening, keeping and breeding farm and other animals.

Work: on the production, processing, transportation, storage, accounting and control, sale (purchase, sale, supply) of nuclear materials, radioactive substances and waste, other chemicals, bacteriological materials, weapons, ammunition, components for them, explosives and other products (goods) prohibited or restricted for free circulation.

3. Collective (team) financial liability for damage

According to Art. 245 of the Labor Code of the Russian Federation, when employees jointly perform certain types of work related to the storage, processing, sale (vacation), transportation, use or other use of valuables transferred to them, when it is impossible to differentiate the responsibility of each employee for causing damage and to conclude a compensation agreement with him damage in full, collective (team) financial liability may be introduced.

A written agreement on collective (team) financial liability for damage is concluded between the employer and all members of the team (team).

Under an agreement on collective (team) liability, valuables are entrusted to a predetermined group of persons, who are assigned full financial responsibility for their shortage. To be released from financial liability, a member of a team (team) must prove the absence of his guilt.

In case of voluntary compensation for damage, the degree of guilt of each member of the team (team) is determined by agreement between all members of the team (team) and the employer. When recovering damages in court, the degree of guilt of each member of the team (team) is determined by the court.

Based on the above, I would like to draw your attention to the following:

The legislation clearly defines the list of persons with whom the legislator allows the conclusion of agreements on full financial liability. The above list is exhaustive and does not allow for broad interpretation. Thus, concluding an agreement on full financial liability with a person not included in this list is illegal. Such an agreement is invalidated those. It is impossible to hold the employee financially liable, as well as to recover damages from him on the basis of such an agreement.

At the same time, Art. 238 of the Labor Code of the Russian Federation provides that the employee is obliged to compensate the employer for direct actual damage caused to him. The amount of such damage is limited to the employee’s average earnings.

In addition, I would like to draw your attention to the fact that Only persons who have entered into a contract with the employer are held liable.. Persons performing work for an employer under civil contracts (for example, contract agreements, assignments, transport expeditions, etc.) bear not material, but property liability according to the norms of the Civil Legislation of the Russian Federation.

Taking a literal interpretation of the question you posed, I essentially report the following: concluding agreements with employees of an organization on full financial responsibility for buildings, structures, machines and communications is unlawful. Such an agreement has no legal force, because does not comply with the norms of the current labor legislation of the Russian Federation.

End of the example.

In addition, if a civil contract is concluded with an employee (for example, for the provision of services or a contract), then the damage is compensated in the manner established by civil law. Article 15 of the Civil Code of the Russian Federation provides for full compensation for damage, including lost income (lost profits).

Full individual financial responsibility of the employee.

According to Article 242 of the Labor Code of the Russian Federation, the full financial liability of an employee consists of his obligation to compensate for direct actual damage caused to the employer in full.

Full financial liability of workers under 18 years of age is provided for in Article 242 of the Labor Code of the Russian Federation only in the following cases:

Intentional causing of damage;

Causing damage while under the influence of alcohol, drugs or other toxic substances;

Causing damage as a result of committing a crime or administrative violation.

According to Part 1 of Article 244, written agreements on full individual financial liability, that is, on compensation to the employer for damage caused in full for the shortage of property entrusted to employees, can be concluded with employees who have reached the age of eighteen and directly service or use monetary, commodity valuables or other property .

Example 2.

According to the Ruling of the Supreme Court of the Russian Federation dated April 18, 2006 No. 5-G06-38, the case of recovery of damage caused as a result of the unlawful actions of the harm-doer was sent for a new trial due to an incomplete study of the circumstances of the case during the trial.

End of the example.

Example 3.

According to the Resolution of the Federal Antimonopoly Service of the East Siberian District dated May 19, 2005 in case No. A33-21565/04-С2-Ф02-2156/05-С2, the case on the claim for debt collection under the sales contract was sent for a new trial, since the court of first instance the rules of substantive law were incorrectly applied, and the question of who used the received goods was used by the defendant’s officials or by himself.

End of the example.

Note!

In accordance with the new edition of Article 244 of the Labor Code of the Russian Federation, written agreements on full individual or collective (team) material liability (clause 2 of part 1 of Article 243 of the Labor Code of the Russian Federation) with employees directly servicing material assets, that is, on compensation to the employer for damage caused in full for shortages property entrusted to employees may or may not be concluded. In the absence of such an agreement or the absence of a corresponding entry in the employment contract, it will be much more difficult to prove the employee’s guilt and hold him responsible for the loss of entrusted property.

The Labor Code of the Russian Federation in Article 244 provides for the conditions under which an agreement on full financial liability can be concluded:

· the person must be an employee of this organization; concluding agreements on full financial liability with persons working under civil contracts is not allowed;

· the employee reaches the age of 18;

· with an employee who directly services material assets;

· the position or work of this employee is provided for in the list of works and categories of employees established by the Government of the Russian Federation.

The lists of works and categories of workers with whom this agreement can be concluded, as well as the form of the agreement, are approved by Resolution of the Ministry of Labor of the Russian Federation of December 31, 2002 No. 85 “On approval of lists of positions and works replaced or performed by employees with whom the employer can conclude written agreements on full individual or collective (team) financial liability, as well as standard forms of agreements on full financial liability” (hereinafter referred to as Resolution of the Ministry of Labor No. 85).

The list of positions and work replaced or performed by employees with whom the employer can enter into written agreements on full individual financial responsibility for shortages of entrusted property is approved in Appendix No. 1 to Resolution of the Ministry of Labor No. 85.

The standard form of an agreement on full individual liability is approved in Appendix No. 2 to Resolution of the Ministry of Labor No. 85:

Appendix No. 2 to the Resolution of the Ministry of Labor and Social Development of the Russian Federation of December 31, 2002 No. 85

STANDARD FORM OF AGREEMENT ON FULL INDIVIDUAL MATERIAL LIABILITY

(surname,

Or his deputy ________________________,

first name, patronymic) (last name, first name,

surname)

acting on the basis _______________________________________,

(charter, regulations, power of attorney)

on the one hand, and ________________________________________________

(Job title)

__________________________________________________________________

_________________________________________________________________,

(Full Name)

hereinafter referred to as the “Employee”, on the other hand, have entered into this Agreement as follows.

1. The Employee assumes full financial responsibility for the shortage of property entrusted to him by the Employer, as well as for damage incurred by the Employer as a result of compensation for damage to other persons, and in connection with the above undertakes:

a) treat with care the property of the Employer transferred to him for the implementation of the functions (responsibilities) assigned to him and take measures to prevent damage;

b) promptly inform the Employer or immediate supervisor about all circumstances that threaten the safety of the property entrusted to him;

c) keep records, draw up and submit in the prescribed manner commodity-money and other reports on the movement and balances of the property entrusted to him;

d) participate in the inventory, audit, and other verification of the safety and condition of the property entrusted to him.

2. The employer undertakes:

a) create for the Employee the conditions necessary for normal work and ensuring the complete safety of the property entrusted to him;

b) familiarize the Employee with the current legislation on the financial liability of employees for damage caused to the employer, as well as other regulatory legal acts (including local ones) on the procedure for storage, reception, processing, sale (release), transportation, use in the production process and carrying out other transactions with the property transferred to him;

c) carry out inventory, audits and other checks of the safety and condition of property in the prescribed manner.

3. Determination of the amount of damage caused by the Employee to the Employer, as well as damage incurred by the Employer as a result of compensation for damage to other persons, and the procedure for their compensation are made in accordance with current legislation.

4. The employee does not bear financial responsibility if the damage is caused through no fault of his own.

5. This Agreement comes into force from the moment of its signing. This Agreement applies to the entire period of work with the Employer’s property entrusted to the Employee.

6. This Agreement is drawn up in two copies of equal legal force, one of which is kept by the Employer, and the second by the Employee.

7. Changes in the terms of this Agreement, addition, termination or termination of its validity are carried out by written agreement of the parties, which is an integral part of this Agreement.

Addresses of the parties to the Agreement: Signatures of the parties to the Agreement:

Employer ______________ ___________________________

Worker __________________ ___________________________

Date of conclusion of the Agreement Place of printing

Regardless of whether full financial responsibility is fixed in the employment contract (additional agreement on full financial liability) or not, financial responsibility in the full amount of damage caused is assigned to the employee in accordance with Article 243 of the Labor Code of the Russian Federation in the following cases:

1) when, in accordance with the Labor Code of the Russian Federation or other federal laws, the employee is financially responsible in full for damage caused to the employer during the performance of the employee’s job duties;

Full financial liability for this category of employees occurs regardless of whether an agreement on full financial liability is concluded with them or not.

So, for example, the head of an organization, in accordance with Article 277 of the Labor Code of the Russian Federation, is entrusted with full financial responsibility.

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

Full financial liability may be borne by an employee with whom an agreement on full individual financial responsibility has been concluded, or by a group of employees with whom an agreement on full team financial responsibility has been concluded. One-time documents for receiving material assets can be issued to an employee with whom an agreement on full individual responsibility has not been concluded only if the employee with whom such an agreement has been concluded does not have the opportunity to perform this work. Such a document is issued to the immaterially responsible person only with his consent.

3) intentional infliction of damage;

In order to bring the employee who caused the damage to full financial liability on this basis, the employer must prove that the shortage, loss, damage and other damage to property occurred as a result of the employee’s intentional actions. If the employee’s actions did not involve intent to cause damage to the employer’s property, then he will be liable within the limits of his average monthly earnings.

4) causing damage while under the influence of alcohol, drugs or other toxic substances;

Full financial liability for an employee who causes damage while under the influence of alcohol, drugs or other toxic substances occurs regardless of the intent to cause damage, because being at work in such a state is in itself a gross violation of labor discipline. In this case, in order for the employer to be brought to full financial liability on this basis, it is necessary to prove that the damage caused by the fault of this employee occurred when he was in a state of alcohol, narcotic or other toxic intoxication.

5) damage caused as a result of the employee’s criminal actions established by a court verdict;

On this basis, an employee against whom a criminal case has been initiated or any investigative actions are being carried out cannot be brought to full financial liability. In this case, we are talking about bringing to full financial liability an employee whose guilt in causing damage to the employer will be proven by a court verdict.

6) damage caused as a result of an administrative violation, if established by the relevant government body;

Example 4.

According to the Resolution of the Federal Antimonopoly Service of the North-Western District dated May 22, 2006 No. A56-28918/2005, the case regarding the claim for recovery from the Company of damage caused as a result of an accident was sent for a new consideration, since the driver of the defendant was not involved in the case, the amount, whose liability to the employer was actually predetermined by the courts of first and appellate instances.

End of the example.

In this case, the basis for bringing to full financial liability is the fact of causing damage to this employer, established by the state body authorized to consider cases of administrative offenses. It does not matter what type of punishment was imposed on the employee for this offense. Article 22.1 of the Code of Administrative Offenses of the Russian Federation provides a list of bodies authorized to consider cases of administrative offenses.

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

This rule is practically not applied, since laws have not yet been adopted regulating the holding of an employee to full financial liability on this basis.

8) damage was caused while the employee was not performing his job duties.

To bring an employee to full financial liability on this basis, it does not matter when such damage was caused during the employee’s working hours, when he was not directly engaged in the performance of his duties (conducted personal long-distance negotiations by telephone) or during his non-working hours, for example,

using the employer's vehicle for personal purposes, committed an accident. In both cases, the employee will be held fully financially liable, since the damage to the employer was caused during non-working hours.

Example 5.

According to the Resolution of the Federal Antimonopoly Service of the North-Western District dated July 28, 2006 in case No. A52-469/2006/1, the complaint that the proper defendant in the case of recovery of damage caused by an accident is not the Company, but its driver, was left without satisfaction.

End of the example.

As follows from question No. 21 of the Review of judicial practice of the Supreme Court of the Russian Federation dated February 9, 2005 “Review of the judicial practice of the Supreme Court of the Russian Federation for the fourth quarter of 2004”:

“….In the event that damage is caused to third parties by an employee who, at the time of the traffic accident, was in the performance of his official duties, these legal relations must be subject to the requirements of Art. Art. 238, 241 of the Labor Code of the Russian Federation, since the specified dispute arises from labor relations.

Accordingly, if the employer brings a recourse claim against the employee for compensation for damage caused by the employee to third parties, then this category of cases in accordance with paragraph 6 of Part 1 of Art. 23 of the Code of Civil Procedure of the Russian Federation is subject to consideration by a magistrate, as are cases arising from labor relations.”

The above grounds for holding an employee to full individual responsibility are common to all employees. We consider it necessary to consider separately the grounds for holding officials of an organization to individual financial liability.

Grounds for holding officials of an organization liable.

The essence of civil liability of the chief accountant and head of the organization is compensation for damage by the employee who caused damage to the organization.

The legal basis for holding these persons accountable is Article 1064 of the Civil Code of the Russian Federation, according to which damage caused to the property of a legal entity is subject to compensation in full by the person who caused the damage. Since the civil (or financial) liability of the chief accountant and the head of the organization is closely related to labor relations, this rule does not apply. However, the Labor Code of the Russian Federation also enshrines the rule on liability. According to Article 243 of the Labor Code of the Russian Federation, in an employment contract concluded with the chief accountant and deputy managers, it is possible to establish a condition on the full financial responsibility of the manager.

At the same time, as mentioned earlier, in accordance with Article 277 of the Labor Code of the Russian Federation, the head of the organization bears full financial responsibility for direct actual damage caused to the organization, regardless of whether an agreement on full financial liability was concluded with him or not.

In cases provided for by federal laws, the head of the organization compensates the organization for losses caused by his guilty actions. In this case, the calculation of losses is carried out in accordance with the norms provided for by civil law. According to Article 15 of the Civil Code of the Russian Federation, losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (real damage), as well as lost income that this person would have received under normal conditions civil turnover, if his right had not been violated (lost profit).

If the person who violated the right received income as a result, the person whose right was violated has the right to demand compensation, along with other damages, for lost profits in an amount not less than such income.

According to Article 44 of Law No. 14-FZ, as well as Article 71 of Law No. 208-FZ, members of the board of directors of the company, the sole executive body of the company, members of the collegial executive body of the company, as well as the manager are liable to the company for losses caused to the company by their guilty actions ( inaction), unless other grounds and amount of liability are established by federal laws.

Example 6.

According to the Resolution of the Federal Antimonopoly Service of the Ural District dated July 13, 2006 No. Ф09-5998/06-С5, the case on the claim for the exclusion of the deputy director of the company from the company's participants in connection with his illegal actions and actions that significantly impede the activities of the company, was sent for a new consideration.

End of example

Example 7.

According to the Ruling of the Supreme Court of the Russian Federation dated May 30, 2002 in case No. 14-B01-31, the Company’s claims against the defendant, who acted as the general director, for recovery of damage caused to the Company were satisfied legally, since the sole executive body of the company (director) and (or) members of the collegial executive body of the company (board, directorate), are liable to the company for losses caused to the company by their guilty actions (inaction), unless other grounds and the amount of liability are established by federal laws.

End of the example.

In this case, members of the board of directors of the company, members of the collegial executive body of the company who voted against the decision that caused losses to the company, or who did not take part in the voting, are not liable.

In accordance with Article 25 of Law No. 161-FZ, the head of a unitary enterprise bears responsibility in the manner prescribed by law for losses caused to the unitary enterprise by his guilty actions (inaction), including in the event of loss of property of the unitary enterprise.

In the context of labor legislation, speaking about financial liability for damage resulting from a violation by an employee of labor relations of his duties (Article 21 of the Labor Code of the Russian Federation), the following conditions must be present:

Illegality of actions (inaction) of the harm-doer

Guilt (in the form of intent or negligence) of the party in causing damage;

Causality between action (inaction) and consequences in the form of damage caused.

As you can see, a necessary element in holding a manager accountable is guilt. Guilt can be either in the form of intent, that is, the leader wanted or foresaw the possibility of adverse consequences, or in the form of negligence, that is, the leader did not want, but could foresee the adverse consequences of his actions.

Thus, we note that the head of the organization bears increased responsibility compared to other employees. The legislation of the Russian Federation does not provide for mitigation of liability by an employment contract or other act.

In addition, an agreement on full financial liability can be concluded with the head of the organization if it refers to the list approved by Resolution of the Ministry of Labor No. 85):

heads of organizations engaged in depository activities; examination, authentication and other verification, as well as destruction in the prescribed manner of banknotes, securities, forms issued by a credit or other financial organization and/or the Ministry of Finance of Russia; transactions for the purchase, sale, permission to pay and other forms and types of circulation of banknotes, securities, precious metals, coins made of precious metals and other currency values; cash transactions when servicing ATMs and servicing clients who have individual safes in the vault, accounting and storage of valuables and other property of clients in the vault; operations for the issue, accounting, storage, issuance and destruction of bank, credit, discount cards, cash and other financial services to clients, for counting, recalculating or generating cash and currency values; collection functions and transportation (transportation) of cash and other valuables (including collection drivers), as well as other employees performing similar functions;

heads of trade, catering, consumer services, hotels (campsites, motels);

managers of warehouses, storerooms (points, branches), pawnshops, storage rooms, and other organizations for the procurement, transportation, storage, accounting and issuance of material assets;

heads of pharmacy and other pharmaceutical organizations.

Let's consider the most common situations of bringing the head of an organization to financial liability.

As already mentioned, the manager is responsible for causing losses to the organization. Often such losses arise when making transactions (for example, interested party transactions). Shareholders, members of the company or the owner of the property of a unitary enterprise have the right to appeal the actions of the manager in making transactions. In addition, if there is guilt, damages caused to the organization may be recovered from the manager. In this case, a situation arises when it is necessary to prove a causal relationship between the actions of the manager and the consequences that occur. The responsibility to prove a causal connection (its absence) rests with the manager. The absence of such a connection means the leader is innocent.

Example 8.

According to the Resolution of the Federal Antimonopoly Service of the Moscow District dated May 31, 2005 in case No. KG-A40/4395-05, the case on the recovery of losses caused to the company as a result of the dishonest actions of the defendant in the post of general director was sent for new consideration due to the fact that the type of recovery was not specified losses and the position of the closed joint-stock company in the case is not procedurally determined, and the range of circumstances included in the subject of proof is incorrectly defined.

End of the example.

It is also necessary to determine the degree of guilt of the manager - as a result of which the harm was caused: as a result of force majeure (force majeure), as a result of the incompetent decision of the manager (business risk), as a result of the deliberate action of the manager, etc. The lack of guilt of the leader indicates his innocence.

In proving the presence or absence of a causal relationship between the actions of the manager and the adverse consequences that have occurred, conducting independent audit.

One of the ways to prevent liability or mitigate it is management liability insurance, which is carried out at the expense of the organization.

According to Article 11 of the Federal Law of July 29, 2004 No. 98-FZ “On Trade Secrets” (hereinafter referred to as Law No. 98-FZ), an employment contract with the head of an organization, among other things, must provide for his obligations to ensure the protection of the confidentiality of information owned by the organization and its counterparties, and responsibility for ensuring the protection of its confidentiality.

In case of violation of the legislation on trade secrets (for example, disclosure of secrets or failure to ensure conditions for maintaining secrets), the head of the organization compensates the organization for losses caused by such actions. In this case, losses are determined in accordance with civil legislation (Article 15 of the Civil Code of the Russian Federation).

Again, in each case it is necessary to establish a causal relationship between the actions of the leader and the consequences that occurred, as well as the degree of guilt of the leader.

It should be noted that if the actions of the manager contain elements of a crime or an administrative offense, the head of the organization may be brought to criminal or administrative liability. In addition, such actions usually entail disciplinary liability in the form of dismissal.

The head of the organization is responsible for bringing the organization to bankruptcy. In accordance with Article 56 of the Civil Code of the Russian Federation, if the insolvency of an organization is caused by the actions of a person who has the right to give instructions mandatory for this legal entity (this includes the manager), such person, in the event of insufficient property of the legal entity, may be assigned subsidiary liability for the obligations of this legal entity (in practice, as a rule, such cases occur in relations between subsidiaries or dependent organizations and the main ones).

Please note that in cases established by law, the manager may be brought to criminal or administrative liability.

In addition, according to Article 10 of the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)” (hereinafter referred to as the Bankruptcy Law), in the event of a violation by the head of the debtor of the provisions of this Law, the head is obliged to compensate for losses caused as a result of such violations.

In particular, the failure of the debtor to submit an application to the arbitration court in the cases and within the time period established by Article 9 of the Bankruptcy Law entails subsidiary liability of the head of the organization for the debtor’s obligations arising after the expiration of the month period during which the application for bankruptcy should have been filed. declaring a legal entity insolvent. Other violations of bankruptcy legislation are also possible, but in any case, the head of the debtor, if a violation is committed, bears subsidiary liability.

Laws may establish other grounds for the responsibility of the head of an organization. Thus, according to paragraph 4 of Article 5 of the Federal Law of March 5, 1999 No. 46-FZ “On the Protection of the Rights and Legitimate Interests of Investors in the Securities Market,” persons who signed the securities prospectus bear joint and several subsidiary liability for damage caused by the issuer to the investor due to the information contained in the said prospectus is unreliable and (or) misleading to the investor. According to paragraph 2 of Article 22.1 of the Federal Law of April 22, 1996 No. 39-FZ “On the Securities Market,” the securities prospectus must be signed by the head of the organization, as well as the chief accountant. Thus, in this case, the manager and chief accountant of the organization will be responsible.

As noted earlier, the Labor Code of the Russian Federation limits the liability of the employee: lost income (lost profits) cannot be recovered from the employee.

As a general rule, the amount of responsibility of an employee cannot exceed the average monthly salary.

According to Article 243 of the Labor Code of the Russian Federation, in an employment contract concluded with the chief accountant, it is possible to establish a condition on the full financial responsibility of the chief accountant. When hiring a chief accountant, the law does not prohibit entering into an additional agreement on the latter’s full financial responsibility. Moreover, Article 244 of the Labor Code of the Russian Federation states that agreements on full financial liability, that is, on compensation to the employer for damage caused in full for the shortage of property entrusted to employees, can be concluded with employees who have reached the age of eighteen and directly service or use money, commodity valuables or other property (the chief accountant, of course, belongs to this category).

If the employment contract does not provide for a condition on full financial liability and an agreement on full financial liability has not been concluded, the maximum amount of liability for damage is the average monthly salary of the employee (Article 241 of the Labor Code of the Russian Federation).

Based on paragraph 9 of Article 81 of the Labor Code of the Russian Federation, the employer has the right to terminate the contract with the manager and chief accountant if they make an unfounded decision that entails a violation of the safety of property, its unlawful use or other damage to the organization’s property.

In conclusion, we note that according to Article 1068 of the Civil Code of the Russian Federation, a legal entity is responsible for damage caused by its employee (including the manager and chief accountant) during the performance of his labor duties. In this case, the organization has the right to subsequently recover from the employee the costs incurred when holding the organization accountable for its employee (recourse claims).

More detailed questions regarding the grounds for holding the organization's employees, including the director and officers of the organization, liable, the procedure for bringing such liability, as well as the procedure for collecting damages caused, can be found in the book of JSC "BKR-INTERCOM-AUDIT" "Financial Liability" "