The limits of the employee's liability to the employer direct

As follows from Art. 233 of the Labor Code of the Russian Federation, the employee must be liable for any damage caused to the employer as a result of his guilty unlawful behavior. However, it should be borne in mind that, in accordance with Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for the direct actual damage caused to him. Unreceived income (lost profit) is not subject to recovery from the employee.

This is one of the main features liability workers. Direct actual damage is understood as a real reduction (diminution) of the employer's cash property (or the property of third parties held by the employer, if the employer is responsible for the safety of this property) or deterioration of its condition, as well as the need for the employer to incur costs or excessive payments for the acquisition or restoration of property. In this case, the cash property of the employer is considered only that which is on its balance sheet.

Lost income (lost profits), which, as already noted, are not subject to compensation, are those income that the employer could have received, but did not derive due to the employee's unlawful behavior. For example, absenteeism, of course, causes property damage to the employer, since he does not receive some part of the profit as a result.

But this is not direct actual damage, therefore absenteeism is the basis only for disciplinary, but not material liability. On the contrary, damage by an employee to a vehicle that he drove in the performance of his job duties is an actual (real) damage and entails liability. But the losses, consisting in the non-receipt by the employer of income from the use of this vehicle in connection with its repair, are already lost profits, which are not subject to compensation.

Or another example. Due to the fault of the worker, the machine failed. The machine was under repair for three days. The cost of repairing the machine is direct actual damage subject to compensation by the guilty employee, and the possible income from unproduced in three days and unsold products forms lost profits (lost income), which is not refundable.

Legislation provides circumstances excluding the liability of the employee.

To them Labor Code RF considers:

irresistible force;
normal economic risk;
extreme necessity or necessary defense;
non-fulfillment by the employer of obligations to ensure proper conditions for the storage of property entrusted to the employee.

These circumstances are not specified in the Labor Code, but usually force majeure is understood as extraordinary and unavoidable events under given conditions. For example, we can talk about a natural disaster, as a result of which there was a shortage or damage to the property of the employer entrusted to the employee.

The risk is considered justified if:

the completed action corresponds to modern knowledge and experience;
the goal set could not be achieved by other actions;
the person who accepted the risk took all possible measures to prevent damage.

Under extreme necessity is understood the infliction of harm to eliminate the danger that directly threatens the person and the rights of this person and other persons, if this danger could not be eliminated by other means and if the harm caused is less significant than the harm prevented. For example, damage to the employer's property while extinguishing a fire.

An example of the lack of proper conditions for the storage of property entrusted to an employee may be the storage of valuables without appropriate protection or in a room unsuitable for this. However, the employee must notify the employer in writing of the absence of these conditions.

In the presence of at least one of the considered circumstances, the material liability of the employee for damage incurred by the employer is excluded.

The legislation provides for two types of material liability of employees: limited and full.

Limited Liability is expressed in the obligation of the employee to compensate for direct actual damage, but not more than his average monthly earnings. For example, a cleaner of industrial premises, whose salary is 2 thousand rubles, in the process of washing window panes (and their area is industrial premises can be very significant) broke one of them worth 5 thousand rubles.

If a set of all conditions for bringing to liability is established, then her obligation to compensate the employer for damage will be limited to the amount of 2 thousand rubles.

Limited liability is the leading type of material liability of employees and applies in all cases, unless another type of liability is provided by law.

Full liability is the obligation of the employee to compensate for the direct actual damage caused to the employer in full size. It can BQ3J-be given to employees only in cases provided for by the Labor Code of the Russian Federation or other federal laws.

Article 243 of the Labor Code of the Russian Federation provides that full liability is assigned to the employee in the following cases:

when, in accordance with the Labor Code of the Russian Federation or other federal laws, the employee is held liable in full for damage caused to the employer in the performance of labor duties by the employee. For example, such responsibility is assigned to cashiers in accordance with the Regulations on the procedure for conducting cash transactions for shortages. Money received by them for safekeeping and other purposes;
shortage of valuables entrusted to the employee on the basis of a special written agreement or received by him under a one-time document (for example, by proxy). More details about contracts on full liability will be discussed below;
intentional damage;
causing damage in a state of alcoholic, narcotic or toxic intoxication;
causing damage as a result of the employee's criminal actions established by a court verdict;
causing damage as a result of an administrative offense, if such is established by the relevant government agency;
disclosure of information constituting a legally protected secret (official, commercial or other), in cases provided for by federal laws;
causing damage not in the performance of work duties by the employee. (For example, if an employee damages a machine or other equipment while using it for personal purposes.)

In addition to the above cases, liability in the full amount of damage caused to the employer can be established employment contract concluded with the head of the organization, deputy heads, chief accountant.

Most often, full liability takes place on the basis of written agreements on full liability. Such contracts are concluded only with adults who directly serve or use monetary, commodity values or other property, and only with those indicated in the special lists of works and categories of workers with whom these contracts can be concluded.

Lists of these works and categories of employees, as well as standard forms of contracts, are approved in the manner established by the Government of the Russian Federation. Full liability agreements are concluded, for example, with storekeepers, freight forwarders, cloakroom attendants, conductors, etc.

Full financial responsibility can be not only individual, but also collective. Collective (team) liability is introduced when employees jointly perform certain types work related to the storage, processing, sale (vacation), transportation, use or other use of the values transferred to them, when it is impossible to distinguish between the responsibility of each employee for causing damage and conclude an agreement with him on compensation for damage in full.

In this case, a written agreement on full liability is concluded between the employer and all members of the team (team). Moreover, in order to be released from liability, a member of the team (team) must prove the absence of his guilt.

The Labor Code defines the procedure for determining the amount of damage caused and its compensation.

The amount of damage caused to the employer in the event of loss and damage to property is determined by actual losses calculated on the basis of market prices in force in the area on the day the damage was caused, but not less than the value of the property according to accounting taking into account the degree of wear and tear of this property.

In some cases, federal laws may establish a special procedure for determining the amount of damage to be compensated if this damage is caused by theft, deliberate damage, shortage or loss of certain types of property and other valuables, as well as in cases where the actual amount of damage caused exceeds its nominal amount. .

Before making a decision on compensation for damages by specific employees, the employer is obliged to conduct an audit to determine the amount of damage caused and the reasons for its occurrence. To conduct such an inspection, the employer has the right to create a commission with the participation of relevant specialists.

In order to establish the cause of the damage, it is mandatory to request an explanation from the employee in writing.

In the process of verification, the employee and his representative have the right to get acquainted with all the materials of the verification and appeal against them in the manner prescribed by law.

Compensation for damage can be made both voluntarily and involuntarily.

Voluntary compensation for damage possibly in cash or in kind. IN monetary form the employee voluntarily compensates for the damage in whole or in part within the amount of the type of liability that may be assigned to him by law. At the same time, by agreement between the employer and the employee, compensation for damage by installments is allowed.

In this case, the employee submits to the employer a written obligation to voluntarily compensate for the damage, indicating specific payment terms. In-kind compensation for damage is possible with the consent of the employer by transferring to him property equivalent to the lost one, or by repairing damaged property.

If the employee refuses to voluntarily compensate for the damage caused, the recovery is made in compulsory order in the form of money. There are two ways of enforcement: judicial and extrajudicial.

The extrajudicial recovery procedure consists in the fact that the amount of damage is recovered by order of the employer by deduction from wages worker. At the same time, the total amount of deductions for each payment of wages cannot exceed 20%. The recovery of the amount of damage caused by the order of the employer is possible only if the amount recovered does not exceed the average monthly earnings. An order for the recovery of damages can be made by the employer (as a general rule) no later than one month from the date of the final determination of the amount of damage caused.

In all other cases, i.e., when the one-month period has expired, and the order has not been made, or the amount of damage to be recovered from the employee exceeds his average monthly earnings, and the employee does not agree to voluntarily compensate for the damage, recovery is carried out in court.

In turn, the employee, in case of non-compliance by the employer with the procedure for recovering damages established by law, has the right to appeal against the actions of the employer in court.

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

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

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

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

material
civil law
administrative
criminal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 a good reason for losses caused by machine downtime throughout the working day. Measures of disciplinary or social influence may be applied to such an employee.

Damage expressed in monetary terms 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 excluding 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 state body. If, as a result of an administrative offense, harm is 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 liability was introduced when employees jointly performed certain types of work related to 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 between the liability of each employee for causing damage, and the employer concludes in writing an agreement on the full collective (solidary) 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. There is a need for a balanced state-legal regulation of public labor relations. 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 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 accounting data, based on the book value of material 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 deduction under several executive documents, recovery of up to 50% is allowed. In any case, the employee retains half of his salary.

Material liability- the type of legal liability of a party to an employment contract for damage caused to the other party by guilty illegal actions (or inaction).

Terms of liability are:

1) illegality of the action (inaction) of the employee;

2) the presence of direct actual damage;

3) a causal relationship between the actions (inaction) of the employee and the harm caused;

4) fault of the employee (in the form of intent or negligence).

Liability of the employer to the employee includes:

1. The obligation of the employer to compensate for the harm caused to the employee as a result of illegal deprivation of his opportunity to work.

Such an obligation, in particular, arises if the earnings are not received as a result of:

Illegal removal of an employee from work, his dismissal or transfer to another job;

Refusal of the employer to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee in his previous job;

Delays by the employer in issuing a work book to an employee, entering into the work book an incorrect or inconsistent wording of the reason for dismissal of an employee.

2. The obligation of the employer to compensate for the damage caused to the property of the employee.

3. The obligation of the employer to compensate for the moral damage caused to the employee.

4. The obligation of the employer to compensate for the damage caused to the employee as a result of the delay in the payment of wages and other payments due to the employee.

Material liability of the employee to the employer

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

Types of employee liability:

1) complete - occurs in cases specified in the law (Article 243 of the Labor Code of the Russian Federation);

2) limited - occurs in all cases, except for cases of full material liability specified in the law within the average monthly earnings of an employee;

3) collective (team) - can be introduced when employees jointly perform certain types of work related to storage, processing, sale (vacation), transportation, use or other use of the values transferred to them, when it is impossible to distinguish between the responsibility of each employee for causing damage and conclude with him a contract for damages in full.

Circumstances excluding material liability of an employee are:

1) force majeure;

2) normal economic risk;

3) emergency;

4) necessary defense;

5) failure by the employer to fulfill the obligation to ensure proper conditions for the storage of property entrusted to the employee.

The fact that one party, being a participant in labor relations, is punished before the other party, is prescribed in the Labor Code. The law stipulates that when there is material liability of employees to the employer, the perpetrator must compensate for the damage that was caused as a result.

general information

In the employment contract itself or in an additional agreement, specific consequences are prescribed that occur in certain cases. At the same time, the fundamental document is, of course, the Labor Code. Therefore, the employee before the employer cannot be established higher, and the employer - lower than that provided for by this law and other acts of federal significance.

Even when the employment contract is terminated, the parties are not exempt from it. The liability of employees to the employer occurs when there are several conditions, one of which is the illegal actions of the employee. At the same time, the latter proves the specific damage done.

Subjects and their duty

There can only be material liability of the employee to the employer. The types of subjects are thus limited to those parties who have entered into an employment contract.

The obligation to pay damages to the employer is regulated by Article 238 of the Labor Code of the Russian Federation. According to it, the employee compensates for the harm caused, which is of a real and direct nature. Such damage is the actual reduction of property, deterioration of it, or the need for the employer to spend funds due to actions that were caused by the employee.

When you don't need to make amends

However, the material liability of employees to the employer will not come if there was an economic risk, defense, emergency or failure to fulfill their obligations as an employer in terms of providing normal conditions to store these things. In addition, the employer has the right to refuse to recover funds from the employee for the damage caused. This is defined in article 240 of the code. But if the owner of the damaged property is not an employer, then he can restrict this right in accordance with various legal acts of both federal significance and the level of subjects of the Russian Federation, as well as compulsory medical insurance and directly the documents of a particular organization.

Limited and full material liability of the employee to the employer

The next item prescribed in the law is the limits. It is in accordance with them that the material liability of employees to the employer may come. This is determined by article 241. According to it, the punishment may not exceed the amount of the average monthly salary. But separately also indicated cases of full material liability of the employee to the employer:

When full responsibility is assigned initially by law.
If there is a shortage of entrusted valuables in accordance with a special agreement.
In case of intentional damage.
Due to damage caused by alcohol or drug intoxication.
As a result of a crime (after a court verdict).
Because of an administrative offense.
In case of non-fulfillment of obligations under the contract.
Because of the disclosure of a secret that, by law, is of a commercial, official or government nature.

The material liability of the employee for damage caused to the employer, which must be paid in full, may be established by an employment contract concluded between the parties, where the chief accountant or deputy heads act as the employee. This is regulated. According to it, in the case of full material liability of the employee to the employer, the first compensates for certain specific damage (which is valid) in full. But this rule applies only when there is a direct indication of the law.

Thus, it turns out that the limits of the employee's liability to the employer are full and limited. We have considered the first type, now we will focus on the second. Limited liability is not directly established by law. However, in practice, the following cases have arisen:

damage or destruction of property due to negligence;
shortage of funds, loss or depreciation of any documents, or payment of fines due to the actions of the employee.

Age and responsibility

When determining the material liability of an employee for damage caused to the employer, the age of the employee should be taken into account. Thus, persons under the age of 18 will bear it in full only when intentional damage has been caused due to intoxication with alcohol or drugs and due to the commission of an unlawful act that provides for criminal or administrative punishment. Treaties on full responsibility are concluded only with adult employees who use and maintain values: monetary, commodity or other. The works and categories of those who fall under this are approved by the government of the Russian Federation.

Collective and individual responsibility

Depending on the situation, the material responsibility of the employee to the employer differs. Types: collective (brigade) and individual. The first cases occur when it is not possible to delimit the limits of the damage caused by each of the workers. Then an agreement is concluded between the employer and the whole team. Upon the occurrence of the consequences, the employee must prove his innocence and innocence.

When the damage is compensated on a voluntary basis, its amount is determined by a separate agreement, which takes into account the fault of each individual. If the damage is recovered in the course of judicial proceedings, then the guilt and involvement of employees is determined directly by the court.

Before recovering damages, the employer is obliged to establish how much damage has been caused. Article 247 of the Code obliges him to do this. In addition, it is necessary to obtain an explanation of this fact in writing from the employee. If he refused to give explanations or evaded this obligation, then a separate act is drawn up about this.

If desired, the employee can familiarize himself with all the materials of the inspection and appeal against them, if he deems it necessary.

The individual financial responsibility of the employee to the employer is complete. If so, a contract is concluded in accordance with standard form established by a decree of the Ministry of Labor in 2002.

How the damage is compensated

How is damages recovered from an employee found guilty? This is defined in article 248. If the employer has departed from established order, then the employee has the right to sue in this matter.

Damage can be compensated voluntarily. In addition, an additional agreement may be concluded, under which an installment plan is provided for this purpose. Then the employee undertakes to compensate for the damage according to a certain schedule, and this fact is recorded in writing. Moreover, if he quits and refuses to pay the amount recovered, then in the future trial, as a result of which the debt will be collected on the basis of a court decision.

If the employer agrees, then compensation for damage is possible by transferring property of equal value. In addition, already damaged property can be fixed by an employee. In this case, the employer transfers this property to the guilty person, and the latter performs the work promised to him in connection with this.

If an employee leaves

Compensation is realized in accordance with article 249. If the employee leaves before the deadline for full compensation for damage, without having good reasons, he must reimburse the employer for the costs that he incurred for training, calculated in proportion to the actual unworked time after this training.

The competent authority may reduce the amount of the payment. The decision is made taking into account the form and degree of guilt, as well as various circumstances and conditions of the employee. But in no case will such a decision be made if the damage was recovered as a result of the commission of a criminally punishable act by an employee for selfish purposes.

Preparing for trial

Sometimes an employer has to go to court. Then he provides the following information in order for the employee to become liable to the employer:

The employee refuses to fulfill the contract on a voluntary basis.
Withdrawal is not possible by order.
The amount of damage is more than the average monthly earnings.
The employer was not reimbursed for the training costs spent on the employee.
He had to pay for the damage caused by the worker.

The right to apply to the court remains for a year from the moment the harm was discovered.

Resolution of the issue in court

On November 16, 2006, the Plenum of the Supreme Court issued Decree No. 52. It regulates how the material liability of the employee to the employer is applied. A sample contract can be seen below. The decision, in particular, states that in order to resolve a case for damages, evidence is required, the burden of which lies with the employer. In particular, he must provide the court with the following evidence:

In this case, the employee is obliged to prove the absence of guilt in the fact that the damage was caused. If guilt is proven, then the burden of compensation for damage falls on him, regardless of whether administrative, disciplinary or criminal liability arises or not.