The concept of liability is enshrined in labor law. It represents an obligation to compensate for damage caused by the perpetrator. Distinguish the employee’s liability for property damage caused to the employer, and the employer's liability for damage caused by the employee’s fault. Let us consider in more detail their features.
Employee liability
It occurs subject to a number of conditions. According to the Labor Code of the Russian Federation, the liability of an organization employee occurs if the following circumstances are proved by the employer:
- The fact of causing property damage.
- The employee committed an offense. It represents a guilty act (inaction), as a result of which damage occurred.
- The relationship between deed and harm.
- Amount of damage.
In cases established by law, the employer also needs to prove the existence of a liability agreement concluded with the employee.
General procedure for imposing punishment
To obtain evidence of employee involvement in the offense and the resulting damage, the employer checks the employee's behavior. If necessary, a special commission may be formed. As a rule, it is created when the employee assumes gross violations of labor law that entailed large-scale damage.
As for the employee, he is obliged to give an explanation of his actions in writing. This requirement follows from the provisions of part 2 of article 247 of the Labor Code.
If an employee refuses or avoids giving explanations, the employer must draw up an appropriate act.
In part 2 247 of the article of the Labor Code, the deadline for giving an explanation is not established. However, due to the fact that prosecution is allowed when committing a disciplinary offense, it is quite possible to apply the provisions of Part 1 of Art. 193 TC. It indicates the period of 2 working days.
There are two types of liability: limited and full.
Employee Rights
An employee who is held liable (including full) can familiarize himself with all the documents drawn up during the verification of his labor behavior. He has the right to challenge any act with which he does not agree, to file a motion, and to assist supervisory authorities.
Equally important is the ability of an employee to involve a representative in the process. They can be a specialist who has the necessary, in the opinion of the employee, knowledge and experience for an objective, comprehensive study of the charges.
Compensation Features
According to the current legislation, full material liability involves compensation to the lessee only for property damage actually caused. Lost profits cannot be recovered. Accordingly, the inclusion of such a clause in a liability agreement is unacceptable.
Actual (direct) harm should be understood as a real reduction or deterioration in the state of property that the employer had at the time of the violation. It is, among other things, about the material values of third parties, if they were left under the custody of the tenant. In addition, the expenses incurred by the employer for the restoration, acquisition of property or compensation for harm to third parties are compensated.
Limitations
According to the norms, employee liability is possible only within the limits of his average salary. That is why it is called limited.
The establishment of limits on liability is determined by the need to protect the interests of the employee. In addition, the particularities of working conditions are taken into account.
Often, during a shift (day), an employee’s self-control decreases, which is very dangerous when working with units, machines, machines, semi-finished products, etc. Accordingly, the likelihood that an employee will begin to produce defective products will allow the tool or equipment to break down.
If property damage does not reach the average monthly salary of an employee, then the employer (with the consent of the perpetrator) has the right to issue an order for damages. The employer can realize this opportunity within a month. The calculation of the term starts from the date of completion of the audit and determination of the final amount of the damage caused.
The employee has the right to voluntarily compensate for the damage caused in part or in full. By agreement of the parties installments may be established. In this case, the employee must give a written obligation to compensate for the damage, indicating specific amounts and terms of deductions.
By agreement of the employer, the employee has the right to transfer his own property as a reimbursement or to fix the damaged one.
Going to court
Recovery of harm within the framework of the action shall be carried out if:
- The employee agrees to compensate for the damage voluntarily.
- The amount of harm is greater than the average monthly salary of the employee.
- The employee resigned, and he was left with outstanding debt for the harm caused.
Nuance
Legislation provides for a number of employer rights. In particular, the employer may:
- Refuse compensation.
- Reduce the amount of damage.
- Bring employee disciplinary action.
If the harm was the result of a crime or an administrative offense, the employer has the right to send the verification materials to law enforcement agencies.
Full responsibility
It occurs in cases provided for by Article 243 of the Labor Code. This type of liability is established if:
- According to the provisions of federal law, an employee can be punished for damage to the employer. For example, on the basis of the Federal Law No. 126, the obligation to compensate for the damage incurred rests with the telecom operator.
- A shortage of values transferred to the employee in accordance with the contract or one-time document has been identified. This circumstance, for example, is the basis for the onset of liability of the cashier.
- Property damage caused to the tenant intentionally.
- The harm was done while intoxicated (alcoholic, toxic, narcotic).
- Damage caused as a result of a crime, the guilt of which the employee is confirmed by a court order.
- The harm arose as a result of an administrative violation if an administrative sanction was applied to a person.
- The employee violated the requirement to keep confidential information protected by law.
- The damage was not caused during working hours, but the employee used the means of production.
Responsible Entities
The legislation provides for full liability for property damage for the chief accountant and the head of the enterprise. The director of the organization is liable for actual damage resulting from his actions / inaction. In cases provided for by the norms, it also compensates for losses incurred by the enterprise.
Full responsibility may also be imposed on a minor employee if:
- Damage caused intentionally.
- The harm arose as a result of acts committed while intoxicated.
- Damage caused by a crime or an administrative offense.
Contract
The liability of the parties to the employment relationship may be fixed in a special agreement. Such an agreement is concluded with the employee upon hiring, if values will be transferred to him for the performance of duties.
The agreement establishes the obligation of the employer to create the conditions necessary for the employee to fulfill professional tasks and ensure the safety of the property entrusted to him. Its failure entails the release of the employee from liability.
The contract is concluded exclusively with the employee whose activity or position is associated with the processing, storage, sale, use during production, transportation of property owned by the employer.
Collective responsibility
It is also established by agreement. Such an agreement is concluded with a brigade (group) of employees, if it is not possible to separate the responsibility of each of them individually.
The following clauses should be fixed in the contract:
- Subject of the agreement.
- Duties and rights of the brigade (team) and the employer.
- Accounting and reporting rules.
- Compensation procedure for harm caused to the employer.
The agreement is signed by the head of the enterprise, the head of the team and all its members.
The head of the brigade is appointed by order of the employer. In this case, the opinion of all its members is taken into account. For the period of absence of the foreman, his duties are assigned to one of them.
In the event of the departure of individual workers from the brigade or acceptance of persons, the contract shall not be renewed. The agreement is reissued if more than half the composition of the brigade changes. In the case of the reception of individual employees, the contract must indicate the date of their entry and sign the relevant persons.
The agreement contains the obligations of the employer to the brigade. One of them is to create conditions for employees to ensure the preservation of the values entrusted to them for the performance of their labor tasks. The employer must take timely measures to eliminate the circumstances that create obstacles for the members of the brigade to properly fulfill their duties, identify the citizens involved in the harm, and bring them to justice.
Federal Law No. 161
This normative act establishes the conditions for the onset of material liability of military personnel. They are enshrined in Art. 3 of the Law. According to the norm, material liability of servicemen is provided only for real harm caused through their fault.
If the damage was not due to the performance of official duties, measures enshrined in civil law are applied to citizens. The statute of limitations for holding an employee accountable is 3 years from the day the damage is discovered.
The law prohibits imputing sanctions to subjects for damage resulting from the execution of an order of the immediate superior, the commission of lawful actions, force majeure, justifiable risk.
Employer liability
The grounds for its offensive are fixed in various articles of the Customs Code. So, according to the provisions of Art. 236 of the Code, the employer's liability arises in the event of delay in payment of wages.
As established in article 234 of the Labor Code, the employer must compensate the employee for the earnings that he did not receive if this happened as a result of unlawful deprivation of the ability to perform professional duties. It is, in particular, about:
- Illegal removal of an employee from activity, dismissal, transfer to another job.
- Evasion of execution or untimely implementation of the decision of the Labor Inspectorate on the restoration of a citizen in the state of the enterprise.
- Delay by the employer of the issuance of the work book, making an entry on the dismissal of a citizen in an incorrect or contrary to the law.
- Other cases of violation of the rights of an employee provided for by law or a collective agreement.
Liability of the employer for property damage caused to the employee occurs on the basis and in accordance with Art. 235 TC. The norm established that the refund is in full.
The amount of damage is established based on market prices in force in the relevant area at the date of compensation. Damage may be compensated in kind with the consent of the employee.
To compensate for harm, an employee must write a statement addressed to the employer. The employer must review it and make a decision within 10 days. If the response is not received on time, the employee has the right to go to court.
Amount of damage
The amount of damage caused to the employer is established in accordance with actual losses. They are calculated based on market prices prevailing in a particular area at the settlement date. At the same time, the amount of damage cannot be less than the value of the damaged / lost property indicated in the accounting documents. When determining it, the degree of depreciation of values should be taken into account.
The legislation may provide for special rules for calculating the amount of damage incurred by the employer as a result of theft, intentional damage, loss, shortage of certain property, including precious metals, precious stones, psychotropic / narcotic substances, etc. This provision applies to cases when the actual damage has turned out to be above nominal size. For example, the Federal Law No. 3 of 1998 establishes the liability of employees 100 times greater than the actual harm incurred by the employer.
Conclusion
The legislation establishes fairly clear rules for holding employees accountable. The general order is fixed in the TC. In this case, certain federal laws may provide for measures for certain categories of workers.
It should be noted that one of the prerequisites for holding employees accountable is the existence of a special agreement. A liability agreement is concluded only with certain categories of employees. Their list is approved by order of the Ministry of Labor. It is periodically reviewed.
The procedure of holding liable for property damage may include various stages depending on its size and circumstances of occurrence, position of the culprit. In some cases, only an internal investigation is conducted. In such situations, a commission is formed at the enterprise whose responsibilities include the assessment of the employee’s labor behavior, determination of the amount of damage and the procedure for compensation. In other cases, representatives of law enforcement agencies may be involved in clarifying the circumstances. Their participation is mandatory if signs of a deliberate crime or administrative offense are detected.