Employees of organizations in the process of their work use various property and material values of the employer. For some reason, they may be lost, damaged, or worn out prior to use. In situations where this has occurred due to a careless attitude to property, employee negligence, or other biased reasons, the employer has the right to demand compensation from the worker and bring him to liability.
General concepts of liability
The Labor Code of Russia in a separate section establishes the concept, features and conditions for the occurrence of liability (MO) of the parties to an employment contract. According to this source of law, the employer or employee is obliged to compensate the damage caused to the other party to the labor agreement. In this case, liability occurs only with the simultaneous presence of several conditions:
- the existence of property loss;
- the presence of unlawful inaction or action on the part of the causer;
- the presence of guilt;
- the existence of a causal relationship between the actions of the causer and the resulting damage.
The size and characteristics of liability can be specified by an employment contract with the condition that the employee’s MO to the employer cannot be higher than that established by law, and the MO to the employee of the organization is lower. It should also be noted that each of the parties must prove the amount of loss caused to it.
Termination of the employment agreement after causing damage does not relieve the parties from liability.
MO in the labor law of the Russian Federation is divided into the following types:
- Depending on the person in charge: the employee’s MO and the employer's MO.
- Depending on the number of subjects: individual MO and collective MO.
- Depending on the scope of obligations: MO as a general rule for the worker, full MO, lower MO for the employee and increased MO for the employer in exceptional cases.
MO of the employer in front of its employee
In the event that the materially responsible person-employer illegally takes away the employee’s ability to work, he is obliged to reimburse the employee for unearned income. Such an obligation arises in situations where earnings are not received due to:
- unlawful removal of a person from work, his dismissal or transfer to another position;
- untimely issuance of a work book, incorrectly entered information in it;
- untimely executed or not completely implemented decision of the labor dispute resolution body or the state labor inspector on the reinstatement of the worker at his former place of work.
The employer as a financially responsible person is obliged to compensate for the damage caused to the property of the employee in full. Moreover, the amount of such damage is calculated through market prices that are valid in the given territory at the time of compensation. In the event that a worker suffers property damage, he sends a corresponding application to his employer, who must consider it within 10 days and make any decision. In case of disagreement with the verdict of the employer or in the absence of a response to the application within the prescribed time, the employee has the right to file a lawsuit with the court.
If the employer violates the deadline for the payment of salaries (vacation pay, payments due upon dismissal or reduction), then he must pay them along with interest. Interest in this case should be at least 1/300 of the refinancing rate of the Central Bank of the Russian Federation, which was in effect at that time, from the sums not issued on time. They are charged for each calendar day of delay in payment (the countdown is conducted from the next day after the due payment deadline to the day of actual issuance inclusive). Such compensation may be increased by a collective agreement and / or employment agreement. The obligation to pay interest to an employee arises regardless of the presence of the employer's fault.
There is also an employer MoE for the moral damage caused to the worker. Its size is determined by the court or by agreement of the parties.
MO worker in front of his employer
The material liability of an employee of an enterprise to his employer is the obligation of the first to compensate the second for direct actual damage. This kind of loss means the actual reduction of the property of the organization or the deterioration of its condition (including the property of third parties held by the employer, if he bears responsibility for its safety), as well as the need for the company to incur costs or extra payments for the purchase or restoration of property or to compensate for the loss that was caused to workers by third parties.
In what situations does the employee act as a financially responsible person? Lack of valuables, damage to office equipment, tools, materials, transport, as well as expenses for repairing damaged property, monetary fines, amounts paid over time downtime or absenteeism, are direct real damage, which means that in these cases, MO occurs. Non-received income is not subject to collection (lost profit).
Cases in which MO worker does not occur
The employee’s MO is excluded if the damage occurs as a result of:
- insurmountable circumstances (natural factors - floods, hurricanes, etc., technogenic factors - fires, accidents, etc., factors of public life - war, epidemics, etc.);
- natural (normal) economic risk;
- necessary defense;
- extreme necessity (causing harm in order to avoid a danger that directly threatens the person and the rights of the causer, the interests of society and the state, which are protected by law, in cases where this danger could not be eliminated by other means);
- non-fulfillment by the employer of obligations to organize appropriate conditions for the storage of property that is entrusted to the employee.
Normal economic risk includes situations when:
- duly fulfilled the duties of the employee, with the adoption of measures to prevent damage, with the manifestation of care and discretion;
- the tasks set could not be achieved otherwise;
- actions were in line with modern experience and knowledge;
- the object of risk was material wealth, and not human health and life.
A financially responsible person-worker can avoid the MO in the event that his employer has completely refused to recover the damage caused to him. And also the Labor Code of the Russian Federation provides for the right of the employer to demand only partial indemnification with a worker.
Limited and full MO
The employee is liable for the damage incurred within his own average monthly earnings. Such a worker’s income is calculated for the last 12 months of work according to the general rules of the Labor Code of the Russian Federation. The amount exceeding the average salary of the worker is not payable, except in situations where the person is fully financially responsible. In this case, we are not talking about a limited MO, but about a complete MO.
The full liability of the worker is to compensate the direct actual damage caused to the employer in full. This kind of MO occurs in cases:
- when an employee of the Labor Code of the Russian Federation or other federal law is entrusted with the obligation to fully compensate the damage incurred in the performance of his duties;
- the occurrence of a shortage of things, values that were entrusted to the employee on the basis of a written contract or transferred to him under a one-time document;
- causing damage intentionally;
- causing losses while intoxicated with drugs, alcohol or other toxic substances;
- damage caused by a criminal offense or an administrative offense;
- when the financially responsible person has disclosed information that is a state, commercial, official or other secret;
- damages not at the time of fulfillment of labor duties by an employee (for example, damage to a company car when it was used outside of working hours).
Full liability for persons under the age of 18 occurs only in the event of intentional harm to them, as well as for damage caused by them in a state of intoxication caused by drugs, alcohol or toxic substances, or as a result of a crime or administrative offense.
Full MO Treaty
Written agreements on full liability can be concluded only with persons who have reached the age of majority and directly use or maintain the material assets that are the subject of the contract.
The positions of financially responsible persons who can carry a full MO are provided for in a special list of jobs and categories of workers with whom agreements on a full MO can and should be concluded (Decree of the Ministry of Labor of the Russian Federation of December 31, 2002, No. 85). According to this document, these include, for example:
- cashiers and controllers, sellers and merchants;
- managers and their deputies in the field of trade, public catering organizations, consumer services, hotels;
- managers and their deputies, specialists whose work is connected with the depository, examination, authentication, destruction of money, securities;
- specialists involved in the sale or purchase of banknotes, precious metals, securities, coins;
- other posts listed in this list.
Employment of a financially responsible person
Admission of a financially responsible person to the workplace is necessarily accompanied by an explanation of this person's job functions. Also, the employee starting work related to the maintenance of inventory and monetary values, the employer must ensure their correct transfer.
After the conclusion of the contract on a complete individual MO, the head issues an order to appoint a financially responsible person, if such an obligation is assigned to him by a regulatory act of local significance, an employment agreement or a collective agreement.
Collective MO
In the Labor Law of the Russian Federation, there are two types of civil defense depending on the number of its subjects: individual liability and collective responsibility.
The brigade (collective) liability is established when the workers jointly carry out any kind of activity related to the storage, sale, processing, transportation or other use of the values transferred to their jurisdiction and provided that it is not possible to differentiate the responsibility of each worker for damage and conclude with him an agreement on damages in full. In order to avoid the Moscow Region, materially responsible persons must privately prove their innocence.The list of works during which a brigade municipal defense may be introduced, as well as the form of an agreement with a collective full military defense, are established by a resolution of the Ministry of Labor of the Russian Federation of December 31, 2002, number 85.
With this type of liability, a written contract is concluded between the employer and all members of the brigade. Material values are given for storage to a predetermined group of people, on which full MO is assigned for their shortage. The agreement may state the degree of guilt of each participant.
After concluding an agreement on a collective defense organization, the leader must issue an order to appoint a financially responsible person.
Damage determination and inventory
Damage to the employer in case of damage or loss of property should be determined on the basis of actual losses. To identify it, the company conducts an annual audit of property and unscheduled inspections, if necessary, and also uses the report of the financially responsible person.
An employer has the right to convene a commission to conduct a special inventory, the composition of which is approved by a special order of the organization’s management. The result of such an audit may be a revealed fact of shortage (an act of shortage is being drawn up) or damage to property (a defective statement is drawn up), for which the financially responsible person is responsible. The company's warehouse, all its assets are checked in accordance with the Methodological guidelines for accounting of inventories number 119н. This document was approved on December 28, 2001.
A similar and one of the mandatory procedures (along with planned audits and checks for suspected theft) is an inventory when a materially responsible person changes. A change of a person’s MO can occur, for example, as a result of his dismissal or due to the death of an employee.
In the event that loss is detected, the damage is calculated through market prices that are valid in the area at the time of the damage. At the same time, the value of the property cannot be lower than that indicated in the accounting documentation, taking into account its depreciation.
The worker has the right to be present in person during the annual inventory or at the moment when there is a change in the person financially responsible for the assets of the enterprise, their transfer. In case of disagreement with the results of the audit, the financially responsible person may appeal this decision. Based on the results of the audit, the employee is obliged to provide the employer with a written explanation of the damage identified, and in case of refusal of the worker, an act must be drawn up with an appropriate mark in it.
Indemnification
If the MO is limited in the amount of the average wage, the recovery of damage from the causer is carried out on the basis of a management order. Such an order may be issued no later than a month from the date of the final determination of the amount of damage caused.
If the term for issuing the order by the employer has expired or the worker refuses to pay damages, and the amount to be paid is more than one average earnings of the employee, the collection can only be done through a court.
By agreement of the parties, compensation for damage may occur in installments. In this case, the employee writes a written commitment containing the terms of payment. With the consent of the employer, the damage can be compensated by transferring to him by the employee the property equivalent to the missing or corrected after the damage.
In situations where the worker is dismissed without good reason before the expiration of the period established by the labor agreement or training contract at the expense of the organization, the employee must return the costs incurred by the enterprise for his training. Such reimbursement is calculated in proportion to the time after graduation.
It follows from the foregoing that the rule of law guarantees the safety of the employer's property as much as possible by compensating for the damage caused to him, and also helps to protect the employee from illegal actions of the employer regarding material payments.
