Full liability of the employee to the employer

The question of what material responsibility the employee bears to the employer is a key one in many cases of employment, especially in responsible positions with a high risk of damage to the enterprise by the employee's actions. The current legislation provides for direct consideration of these issues in the context of labor law, depending on the specific situation of material damage caused by employees.

Employee liability - what is it and when does it arise

Legal regulation the concept of liability in the conduct of labor relations is widely disclosed by the provisions of the Labor Code of the Russian Federation. In particular, the sectionXI TK RF. From the point of view of the employee's liability to the employer, the main regulations for regulating this topic are indicated by articles 238-250 of the Labor Code of the Russian Federation.

Under this designation, in accordance with the provisions of Article 238 of the Labor Code of the Russian Federation, the obligation to compensate for damage caused by one's own actions or inaction to the property of the employer is implied. At the same time, such an obligation arises through the fault of the employee in the process of implementing labor relations. In addition, the liability of employees at the enterprise may include cases of causing harm to third parties who have any business relationship with the employer.

The application of the liability provisions requires three fundamental conditions to be met. In particular, the employer has the right to demand compensation from the employee if the following facts are combined:

The presence of a causal relationship between the actions of the employee and causing harm. That is, the employer needs to provide evidence that it was due to and due to the actions or non-commission of such by any employee or group of employees that material damage was caused.
The damage was caused by an unlawful act or inaction of the employee. Thus, the prosecution of workers is allowed even when, by virtue of their duties, they had to take certain actions to prevent such consequences, but did not fulfill them.
The presence of guilt in the damage caused. This should mean mandatory qualification personal attitude of the person to the action that caused the damage. This attitude is recognized as containing guilt if it was expressed in the form of negligence or intent of the employee. That is, when the worker acted in full accordance with the existing job descriptions, job duties and common sense, did not realize the consequences of his actions or inaction, and at the same time did not seek to cause damage to the employer, he can be exempted from liability.

The legislation refers exclusively to real harm to the indicated liability. This means that the worker is only responsible for the actual reduction in the amount of property of the employer or third parties, or its damage, deterioration or destruction. The benefit not received due to the actions of the employee cannot be written off and demanded by the employer from the employee.

Labor legislation implies the existence of two main varieties of material liability, which is applicable to workers. The use of the norms of this division is extremely important for the subsequent qualification of the case. So, liability can be full or limited. In the first case, the worker is responsible for all and any harm caused to him, and in case of limited liability it is supposed to establish clear legislative limits on the financial amounts that can be collected from an employee.

There is also the concept of collective or brigade liability. It provides for a certain division of harm and obligations for its compensation for all employees of a separate division of the enterprise. Members of the aforementioned collective, upon voluntary admission of guilt, have the right to determine the degree of responsibility of each of their members, and when resolving the issue in court, it is determined by the court.

In case of early termination employment contract If the employee's education at the expense of the employer was provided for by the terms of this agreement, the resigning person is obliged to reimburse him for all the funds spent on his training.

How liability is determined and its amount

By default, all employees bear exactly limited liability. It means that maximum size penalties and compensation that an employer may require are limited to certain limits. Such limits are established by the provisions of Article 241 of the Labor Code of the Russian Federation and in most situations correspond directly to the average monthly earnings of an employee.

Determination of the average monthly earnings is the responsibility of the accounting department of the enterprise. At the same time, it is calculated for the last two years of employment.

Full liability is governed by the provisions of articles 242-244 of the Labor Code of the Russian Federation and is applied only in certain cases. To those in general order, regardless of other factors, include the following:

If there is a shortage of valuables that were entrusted to the employee on the basis of a one-time document or under a written agreement.
In case of harm while intoxicated.
If there is an intent of the worker to cause harm.
When the damage was caused in connection with the commission of criminal acts by an employee, which was determined by a court decision or administrative offenses.
When causing material damage outside the time of performance of their work duties.

In addition, the legislation provides for the possibility for the employer to conclude a separate agreement on the full liability of the employee. Such an agreement is concluded in writing according to the standard established by law. It can be applied only to adult workers and only to persons who are included in the list of professions or positions specified in the provisions of Order No. 85 of the Ministry of Labor of the Russian Federation of December 31, 2002.

By decision of the court or the body of the enterprise responsible for labor disputes, the amount of funds required from the employee may be reduced.

The procedure for collecting compensation from the employee for the damage caused

To recover funds from an employee in the manner of an agreement in the pre-trial resolution of the aforementioned issue, the employer can use several different tools. In particular, labor standards provide for the possibility of deducting funds from an employee's monthly earnings, subject to certain restrictions. So, the amount of the penalty can be:

Up to 70% of monthly wages in cases where there was evidence of the employee's criminal actions in causing it.
Up to 20% of the monthly salary in situations where the employee caused damage by his actions unintentionally or accidentally.

Determining the amount of material damage is an extremely important component of this issue. The amount of possible compensation for the harm caused by the employee is calculated from the actual market value goods and property subject to depreciation. The accounting documents of the enterprise, including those containing information on its acquisition by the enterprise, can serve as confirmation of the value of the goods.

Any situation in which material damage is recovered from an employee can be resolved in a judicial or pre-trial order. Regardless of the mechanism for resolving the aforementioned issue, the employer must act in such a case as follows:

In what cases the employee is not held liable

The current legislation assumes that bringing a worker to liability of a material nature is by no means permissible in every case of causing damage to workers. So, the provisions of Art. 239 of the Labor Code of the Russian Federation directly relate the following situations to cases that exclude this responsibility of employees:

When causing harm within the limits of normal economic risk. This risk is determined by internal documents organizations and job descriptions employees and, if necessary, final decision on this issue is taken by the court on the basis of common sense. Normal economic risks include accidental breakdowns of equipment during their operation, partial breakdown of goods during loading or unloading operations, and other types of damage.
If the damage was caused due to force majeure circumstances. These circumstances include natural disasters, unlawful actions of third parties with which the employee was not associated, and other events that he could not influence in any way.
When there was harm in the presence of extreme necessity. Such situations may include an attack by third parties on an employee, the use of equipment and material assets of the enterprise to save the life and health of third parties or the employee himself, and other similar circumstances.
In case of damage due to the fault of the employer, which did not bother to provide appropriate conditions for the storage or use of the property entrusted to the employee. Such situations include, for example, the lack of proper locks or fencing at the protected facility, restrictive systems in production, or additional confirmation fields in the software.

The employer has the exclusive right to release his employees from liability. That is, if they apply damage to him, he always has the full right not to recover compensation from them and to refuse any claims against them in connection with such property damage.

In progress labor relations and in the exercise of the rights and obligations of the employee and the employer between them arise different kinds responsibility.

The most common and significant of these is, which, by the nature of work, is assigned to some employees of the company. Depending on the various characteristics and characteristics, this responsibility can be divided into many types, which are worth considering in more detail.

Liability in the field of labor relations is the obligation of one of the participants in these relations to compensate the other party for all the damage caused by them in the amount and in the manner prescribed by law. This type liability may apply to both the employee and the employer.

In the labor legislation of the Russian Federation (namely, in the Labor Code of the Russian Federation), more attention is paid to the material responsibility of the employee. The Labor Code contains its various types, which can be classified according to the following criteria:

Depending on the subject, it can be established in relation to:
- employee;
- employer.
- By the number of perpetrators:
- individual (established by article 244 of the Labor Code of the Russian Federation);
- collective (Article 245 of the Labor Code of the Russian Federation).
According to the method of compensation for material damage:
- voluntary;
- by order (order) of the employer;
- judicially.
In terms of rights and obligations:
- full (Article 242 of the Labor Code of the Russian Federation);
- limited (Article 241 of the Labor Code of the Russian Federation).
According to the method of distribution of responsibility between the guilty parties:
- share;
- solidarity;
- subsidiary;
- collective (brigade).

Each of these species should be considered in more detail, taking into account all their features and characteristics.

Classification by subject

Depending on who is the subject (that is, is the guilty person), liability can be assigned to both the employee and the employer.

In the first case, it is established as a state regulations, and internal documentation of the enterprise (for example, labor or, internal labor regulations, etc.). In more detail, all types of material liability of the employee will be discussed below.

As for the responsibility of the employer, it occurs in relation to his subordinate when performing such actions:

Depriving an employee of the opportunity to work illegally

An example would be the following situations:

suspension from work without good reason;
delay in or entering erroneous information into it;
refusal to comply with the order issued to him regarding;
refusal to allow to work an employee accepted into the company in the order of transfer from another employer, etc.

An important condition is the presence on the part of the subordinate of weighty evidence that the employer committed these guilty acts.

More often than not, this has to be proven in court.

Causing damage to any property of a subordinate, resulting from the guilty actions of the employer

An example of such property would be:

cloth;
technical devices;
other personal items.

The claim for damages applies to all types of property, even to those that have not been properly deposited (for example, in a wardrobe).

Delay in the transfer of wages and other types of payments that are due to the employee in accordance with applicable law

This violation implies the possibility of bringing the employer to such liability:

administrative (most often in the form of a fine);
civil law (in the form of compensation to the subordinate for funds that were not received by him, as well as the possible amount of the penalty);
criminal (including imprisonment).

The choice between administrative or criminal liability is applied depending on the severity of the violation committed.

The criteria for assessing the severity may be the amount of unpaid funds, the number of employees in respect of whom the violation was committed, as well as the duration. As for civil liability, it can be applied simultaneously with each of these types.

It is worth noting that, unlike an employee, for whom the law provides for both full and full responsibility, only the latter type is acceptable for an employer. That is, if there are good reasons, he will have to compensate his subordinates for all the damage caused to them in full size.

Classification by the number of perpetrators

This classification applies only to the responsibility of the employee. Depending on how many subordinates are accused of causing damage, it can be set:

individually, that is, in relation to only one person;
, that is, distributed among a group of employees.

For the possibility of applying one or another type of responsibility, the specific nature of the work must be taken into account, first of all. For example, for individual liability to apply, the following conditions must be met:

the type of activity allows you to select one specific employee from a group;
inventory items are transferred for storage to him, which is fixed in the relevant documentation;
for all operations with these valuables (for their storage, processing, issuance), the employee is provided with a separate room or place, access to which is closed to third parties;
the employee independently reports to the accounting department of the enterprise about the inventory items transferred to him.

Examples of positions of this kind are:

cashiers and controllers;
directors, managers and other managers;
laboratory assistants and methodologists of departments, etc.

As for collective responsibility, it arises in relation to a group of employees when certain values are transferred to them for storage. At the same time, they bear responsibility for their safety together - in equal or different shares. In this case, an appropriate written contract is concluded between a group of workers (team) and the employer.

This form of responsibility is more effective than individual responsibility, since it ensures control by the members of the team over each other.

However, its use also requires certain legal requirements.

Classification according to the method of distribution of responsibility between the perpetrators

In case of group material liability, the perpetrators may bear it in different volumes. In this case, it can be divided into the following types:

Equity

In this case, each employee to the employer only in the share that is established for him in the legislation or the damage that was caused to him personally.

In some cases, the entire amount is divided between the group in equal parts. The employee is obliged to pay only his part, without being responsible for other participants. It is this type of responsibility in labor relations that is used most often.

Solidarity

It applies in a smaller number of cases and only in the presence of aggravating circumstances that accompanied the damage. Such circumstances may be the presence of intent to cause harm, as well as the commission of these actions by a group of persons or in a state of intoxication (alcohol, drugs, etc.).

Its essence lies in the fact that claims for damages are made to all members of the group. Their value may depend on the fault of a particular employee or be set in equal shares for all. However, in case of refusal or inability of one of the members of the collective to compensate for the damage, his share will be divided among the rest of the persons until the entire amount is paid.

Subsidiary

This type is even rarer and is most often used only in relation to the head of the group of people who is guilty of causing damage (for example, the head structural unit). At the same time, in the event of the inability of the main debtor (that is, the team) to fulfill its obligations, this need is transferred to the manager.

Collective (brigade)

It is used in cases where it is impossible to assign responsibility to one employee, so it is distributed among all members of the team. Most often, it is expressed in the form of shared responsibility and is distributed equally among employees.

In each of these cases, the parties to the employment contract (that is, the members of the team and the employer) must conclude a documented agreement on the form of responsibility and the conditions for its application.

Classification according to the method of compensation for the damage caused

After the fact of causing damage to the property of the employer has been proven, the employee has an obligation to compensate for it. This can happen in the following ways:

On a voluntary basis. In this case, an agreement is concluded between the parties, in which the employee confirms his consent to indemnify the damage and indicates the real conditions for this. That is, it gives an obligation to pay cash or provide similar property, specifying specific terms and amounts.
Based on the order of the head. In this case, the employer has the right to pay the employee even without his consent, but only within the limits of his average monthly salary. To do this, he issues an order indicating the grounds for the recovery and a reference to legislative acts(including internal ones).
By the tribunal's decision. It makes sense to go to court in situations where the employee does not want to voluntarily compensate for the damage, and its amount is much higher than the average monthly wage. In this case, the employer needs to prepare evidence of the employee's guilt and file a lawsuit in court. Based on the positive court decision, he will have grounds for receiving all compensation from the employee.

An important role in determining the method of compensation is played by the scope of rights and obligations that was established in relation to the employee when imposing liability on him.

Classification according to the scope of rights and obligations

The latter classification includes such types of responsibility as:

Limited

It is applied in most cases and is set within the limits of only one average monthly salary of an employee. That is, even if the actual damage was much greater, the employer will be able to recover only this amount from the employee.

Complete

It consists in the obligation of the employee to compensate for all damage caused by him in its actual amount. It may arise on the basis of such documents:

employment contract;
provisions of the Law;
liability agreement;
a one-time document on the transfer of inventory items.

Based on these documents, liability can only be established in relation to adult subordinates. In addition, the legislation highlights a number of cases when no additional documents are required for its application, that is, it occurs automatically. These cases include:

the fact of intentional damage to the employer;
being in a state of alcoholic, toxic or drug intoxication at the time of the offense;
causing damage as a result of the criminal actions of the employer, which were established in court;
disclosure of information that is a commercial, state or other secret, which is protected by law;
committing an administrative offense that caused damage;
infliction of damage not in execution official duties employee (that is, in his personal time).

In addition, some features exist in the establishment of responsibility in relation to the head, his deputy and the chief accountant of the enterprise. These persons are in most cases responsible for the actions taken in full.

The rest of the employees, when endowed with this type of responsibility, must conclude an additional agreement with the employer or make such a condition in the employment contract. At the same time, the list of employees for whom this can be done is approved by law by the relevant Decree of the Ministry of Labor of the Russian Federation. Also, similar documents are created to determine the circle of persons to whom all other types of liability can be applied.

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

Basic regulations

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

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

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

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

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

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

Collect all, or cases of full liability

Learned - work or compensate

Today, it is not uncommon to find an employer who cares about improving the skills of their employees. Investing in specialist training has become a common practice, but as soon as modern education costs decent money, the management also needed means of protection against dishonesty of trainees. Article 249 of the Labor Code is intended to regulate this moment of labor relations, which allows an employer who has spent financial resources and time for training personnel, demand their compensation in case of non-fulfillment by the employee of obligations for mandatory working off.

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

There is damage, but no liability

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

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

Blame the employee, but the employer will answer

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

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

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

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

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

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

Procedure for payment of material damage

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

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

Voluntary payment for damages

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

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

Arbitrage practice

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

The legislation provides for two types of liability:

1) material liability of the employee to the employer;
2) the liability of the employer to the employee.

These two types of liability are significantly different from each other. Recognizing the legal equality of the parties to an employment contract, the legislation takes into account that the employer:

1) economically always stronger than an individual worker;
2) organizes the labor process and bears responsibility in connection with this for any adverse consequences that may arise;
3) as the owner of the property bears the burden of its maintenance and the risk of accidental loss or accidental damage.

On the other hand, the law is based on the fact that main value of a person is his physical and mental ability to work, which he can realize in various legal forms, but primarily through the conclusion of an employment contract. What has been said determines the difference in the two types of responsibility.

The material responsibility of the employee consists in the obligation to compensate for property damage caused through his fault to the employer with whom he is in an employment relationship.

Article 165 of the Labor Code of the Republic of Kazakhstan establishes the liability of the employee for causing damage to the employer:

1. The employee's liability for damage caused to the employer occurs in the cases and in the amounts provided for by this Code.
2. The employee is obliged to compensate the direct actual damage caused to the employer.
3. The employee's liability for damage caused to the employer is excluded if the damage arose as a result of force majeure or extreme necessity, necessary defense, as well as the employer's failure to fulfill the obligation to ensure proper conditions for the safety of property transferred to the employee.
4. It is unacceptable to lay liability on an employee for such damage that can be classified as a normal production and economic risk.
5. The employer is obliged to create conditions for employees necessary for normal work and ensuring the complete safety of the property entrusted to them.
6. Direct actual damage is understood as a real decrease in the employer’s cash property or deterioration of the said property (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs or excessive payments for acquisition or restoration of property.

The material liability of the employee occurs when the following conditions are present simultaneously:

1) real actual harm suffered by the employer. Direct actual damage is understood as damage to cash, real-life property through the loss of it (or part of it), appropriation, deterioration, damage, depreciation, which led to the need for the employer to incur costs for the restoration, acquisition of property or other valuables, or to make excessive payments for the fault of the employee to another entity (natural or legal person).

Unlike civil law V labor law only direct actual damages are recoverable. The current labor legislation does not allow the recovery from the employee of the income that the organization could have received, but did not receive due to the employee's wrong actions. For example, it is impossible to recover from an employee who has committed absenteeism without good reason, losses caused by machine downtime during the whole working day. Measures of disciplinary or social influence may be applied to such an employee.

Harm expressed in monetary form is called a loss. Actual harm (direct loss) should be distinguished from imaginary harm (imaginary loss). Imaginary harm occurs when there was no real decrease or deterioration of property, but due to incorrect documentation the movement of material assets according to accounting data, there is a shortage.

2) The illegality of the action (for example, theft of building materials) or the illegality of the inaction (for example, the failure to take measures to prevent excessive fuel consumption), as a result of which damage was caused, i.e. violation by the employee of the labor duties assigned to him.

Illegal is any behavior that is expressed in violation by the employee of the obligation to observe labor discipline and take care of the property of the organization.

Evidence of the unlawfulness of the employee's behavior are acts of disposal, loss or damage to property, invoices, explanatory, reports, messages from the competent authorities and other documents. Indisputable evidence of the illegality of the actions of the employee who caused harm is bringing him to criminal or administrative responsibility.

But harm can also be caused by lawful actions. Lawful actions that exclude liability for harm caused include actions taken in a state of necessity to prevent the onset of greater harm, as well as actions taken in a state of emergency or due to force majeure.

3) The fault of the employee in causing harm. Liability rests with the employee, provided that the damage was caused only through his fault. Guilt as a condition of material liability lies in the fact that the tortfeasor foresaw or could foresee the consequences of his actions, as well as in his attitude to the deed. Guilty is an unlawful act committed by an employee intentionally or carelessly. There are two forms of guilt: intent (direct or indirect) and negligence (frivolity or negligence). The form of guilt affects the type and amount of the employee's liability.

To correctly determine the amount of liability, it is necessary to carefully and comprehensively determine the degree of guilt of the employee who caused harm by illegal action or inaction. Direct intent will be evident when the employee is aware of the unlawful nature of his behavior, foresees its harmful consequences and desires their occurrence (for example, in cases of theft, embezzlement). Indirect intent occurs when the employee is aware of the unlawful nature of his act and foresees the possibility of damage. At the same time, he does not want the onset of harm, but consciously allows its occurrence, or indifferently, uncritically refers to the possibility of harm. In the form of negligence, damage can be caused by negligence, when the guilty person could and should have foreseen the occurrence of harm, but did not take measures to prevent it.

Material harm can also be caused if the employer and the employee are at fault. Mixed guilt occurs when at the same time the employee has an improper attitude towards the safety of the property entrusted to him, and the employer does not take measures to ensure the safety of the said property.

4) Causal relationship between the unlawful behavior of the employee and the harm caused. Illegal action or inaction of an employee is a prerequisite for compensation for material damage only when the harm was caused specifically to them. The absence of a causal relationship between the action (inaction) of the employee and the harm caused excludes bringing him to liability. Therefore, before deciding whether the employee is guilty and causing harm, it is necessary, firstly, to establish the existence of a causal relationship between the action (inaction) and the result, and secondly, to determine whether the harm caused is a direct consequence this action(inaction) or it arose due to other circumstances.

These are mandatory conditions material liability of the employee, in the absence of at least one of the above conditions, material liability does not come.

Labor law provides for two types of material liability - limited and full material liability. The first is limited to a certain limit in relation to the wages of the tortfeasor, and the second is equal to the amount of damage caused. As an innovation, the Labor Code of the Republic of Kazakhstan establishes limited liability within the limits of the average monthly wage. Article 166 of the Labor Code of the Republic of Kazakhstan limits the liability of an employee. For the damage caused, the employee is liable within the limits of his average monthly salary, unless otherwise provided by this Code. In exceptional cases, full liability applies.

Article 167 of the Labor Code of the Republic of Kazakhstan establishes cases complete material liability of the employee for causing damage to the employer. Liability in the full amount of damage caused to the employer is assigned to the employee in the following cases:

1) failure to ensure the safety of property and other valuables transferred to the employee on the basis of a written agreement on the assumption of full liability;
2) failure to ensure the safety of property and other valuables received by the employee under the report on a one-time document;
3) infliction of damage in a state of alcoholic, narcotic or substance abuse intoxication (their analogues);
4) shortage, deliberate destruction or deliberate damage to materials, semi-finished products, products (products), including during their manufacture, as well as tools, measuring instruments, special clothing and other items issued by the employer to the employee for use;
5) causing damage by illegal actions of an employee, confirmed in the manner prescribed by the legislation of the Republic of Kazakhstan.

First of all, the question arises of what should be understood as full liability. It seems that full liability includes both damage to property and lost profits. In other words, not only direct real harm, but also lost income that the employer would have received if there had been no offense on the part of the employee.

By general rules, employees under the age of 18 are not held fully liable. At the same time, according to the legislation of some countries, there may be exceptions to this rule that allow full financial liability of minors if the harm was caused intentionally, in a state of alcoholic, narcotic or toxic intoxication, as a result of a crime. For example, a novelty in Russian legislation is compensation for harm in full as a result of an administrative offense, if such is established by the relevant government agency. If, as a result of an administrative offense, harm was caused to the employer, then the employee who committed this offense may be held fully liable. Kazakh legislation generally does not provide for full material liability for minors, believing that they can only be brought to limited material liability, even in the event of intentional harm. And this is wrong, since the institution of financial responsibility has not only a punitive, but also an educational function.

Employees can be held fully liable regardless of their position or work performed. The form of guilt of the employee is important - only intent. Only in case of intentional destruction or damage to property comes full liability.

Further, what I would like to dwell on is the possibility, under the current labor legislation, of concluding agreements on collective (brigade) liability by the employee for material harm caused to the employer. This question in the previous labor law of the Republic of Kazakhstan was not sufficiently developed.

Such liability of employees was provided for by Art. 119-2 of the Labor Code of the Kazakh SSR.15 The Labor Code of the Kazakh SSR allowed both the conclusion of an agreement on full liability (Article 119-1) and collective (team) liability. According to the now canceled labor legislation, collective (brigade) liability and the conditions for its application were established. Standard contract on collective (brigade) liability was approved in a centralized manner. Such responsibility was introduced in the joint performance of employees certain types work related to the storage, processing, sale (vacation), transportation or use in the production process of the values transferred to them, when it was impossible to distinguish between the liability of each employee. In this case, the valuables were handed over to a predetermined group of workers, each of whose members was responsible for the damage caused as a result of the failure to ensure the safety of the valuables. The amount of responsibility of a brigade member was determined proportionally tariff rate and the time actually worked by him for the period from the last count to the day the harm was discovered.

Meanwhile, in the educational literature on labor legislation, agreements on the collective (brigade) liability of workers are indicated. It is unlikely that this statement is based on the law.

The previous law "On Labor in the Republic of Kazakhstan" did not contain a norm on collective (brigade) liability. Obviously, this is not accidental and is not at all explained by the saving of legislative material, but by the fundamental rejection of the law from agreements on collective (brigade) liability as infringing on the interests of employees and deviating from the principle of responsibility of employees for guilty actions.

In the new Labor Code of the Republic of Kazakhstan, the provision on collective (team) liability is enshrined in Article 168, employees jointly performing work related to storage, processing, sale (vacation), transportation, use or other use in the production process of property and valuables transferred to them, when it is impossible to distinguish material liability of each employee for causing damage, and the employer concludes in writing an agreement on the full collective (solidarity) liability of employees for failure to ensure the safety of property and other valuables transferred to employees.

Thus, in the Labor Code of the Republic of Kazakhstan, the provision on collective (team) liability has been revived, since in practice it is objectively necessary to lay responsibility on both the entire team as a whole and on each of its guilty members. Such liability is introduced when employees jointly perform certain types of work related to the storage, processing, sale (vacation), transportation or use in the production process of the values transferred to them, when it was impossible to distinguish between the liability of each employee. In this case, the valuables are handed over to a predetermined group of employees, each of whose members is responsible for the damage caused as a result of the failure to ensure the safety of the valuables. The amount of responsibility of a team member is determined in proportion to the tariff rate and the time actually worked by him for the period from the last registration to the day the harm was discovered.

The necessity of distinguishing the positive and negative responsibility of the team of workers is substantiated, since the nature of these types of responsibility is different. If the positive responsibility of the team is preventive and educational in nature, then the negative responsibility deprives the team of a certain part of the income, which also affects the property status of each employee. These types of liability should be provided for in the legislation. When the employee is liable to the employer, the direct culprit of the harm is a specific employee who occupies a subordinate position in relation to the employer and acts only on his own behalf. And since the harm is compensated exclusively from the employee's funds, then recourse liability does not apply to him. In practice, there are cases when the cause of harm is the guilty actions of the employer or the harm occurs as a result of the execution of the order of the employer. The employer, represented by the head of the organization, by his unlawful behavior can directly cause harm or creates, as it were, conditions for it to be caused by other persons (for example, not registering and storing material or other values, which creates conditions for their misappropriation or damage by employees). In these cases, the liability of the worker must be excluded.

The guilt of the employee in causing harm can be twofold. Firstly, the fault is indirect due to insufficient qualifications or a negligent attitude to the performance of their labor duties. Secondly, - out of selfish motives or out of personal interest. In our opinion, in order to protect wages employees, it is necessary to establish differentiated limited liability in the presence of indirect fault of the employee. Intentional infliction of harm should entail full liability without any reservations. Moreover, intent is characterized by the fact that the employee foresees the harmful consequences of his behavior and wishes or consciously allows them to occur, which means that there is no doubt about his guilt (with the exception of a shortage that may arise both by intent and as a result of the employee’s careless behavior). In labor law, we do not find any definition of guilt, nor the outlines of the general framework of intent and negligence. Each form of guilt has its own characteristics, reflected in the types and amounts of liability.

All negligent misdeeds are characterized by the negligent attitude of the subject to his actions and consequences. The psychological mechanism of negligent misconduct is also peculiar, therefore it is proposed to distinguish between the liability of employees based on the form of guilt: negligence or intent. A balanced state-legal regulation of social and labor relations is necessary. You can not completely give the employer the establishment of liability. The state should not play the role of a passive observer of the processes taking place in the labor market, it should foresee the consequences of market regulators and foresee an active socially oriented policy of legal regulation of the labor market. The implementation of this function of the state is possible only by saturating the labor legislation with means that ensure the priority of the interests of the employee over the interests of the employer. Legal regulation of labor should be based on the idea of legal inequality between the employee and the employer.

The procedure for compensation by the parties to the employment contract for the damage (harm) caused is established by Article 169 of the Labor Code of the Republic of Kazakhstan. A party to an employment contract that has caused damage (harm) to the other party shall compensate it in the amount established by this Code and the laws of the Republic of Kazakhstan, on the basis of a court decision or on a voluntary basis.

The amount of damage caused to the organization is determined by actual losses based on data accounting, based on the book value of tangible assets minus depreciation according to established standards. In case of theft, shortage, deliberate destruction or deliberate damage to material assets - at state retail prices, and in cases where material assets are lower than wholesale prices - at wholesale prices.

The amount of reimbursable damage caused through the fault of several employees is determined for each of them, taking into account the degree of fault individually in a shared ratio. This means that the degree of guilt of each employee must be taken into account.

The legislation allows for voluntary compensation to employees of the damage caused, both in full and in part. With the consent of the employer, the employee has the right to transfer property of equal value to compensate for the damage or to repair the damaged one.

Voluntary indemnification should be distinguished from a written consent to withhold the amount of indemnification.

Voluntary compensation for damage is the transfer to the enterprise of either the amount or certain property, and it is not limited by either the type of liability or its limits.

If in the course of labor activity an employee causes damage to third parties and this damage is compensated by the organization in accordance with the law, then the employee may be obliged to compensate for this damage by way of recourse.

Under current legislation, the amount of deductions cannot exceed 20% of the salary due to be paid. And only in case of withholding under several executive documents, recovery of up to 50% is allowed. In any case, the employee retains half of his salary.