Type of material liability in legal law. Types of material punishment. Types of material punishment for an employee

Traditionally, material responsibility is associated with labor relations, and to a greater extent with responsibilities employees... A close examination of the issue of causing damage by action or inaction, one can see that, according to the Labor Code of the Russian Federation, such liability is, first of all, mutual, and when establishing it, it is necessary to adhere to the principle of equality of the parties.

Financial responsibility - what is it in simple terms

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From the point of view of labor legislation, material liability is a mutual obligation of the employee and the employer to compensate for the damage caused by one of the parties.

Material damage can be understood as:

• direct destruction or loss of property;
• a decrease in the value of stocks as a result of the culpable actions of one of the parties (damage to values);
• disclosure of information that entailed losses;
• loss of property owned by third parties, but transferred to the employer for safekeeping;
• theft of valuables from an employer or client.

From the point of view of labor legislation, only real damage can be considered, the lost profit is not subject to compensation, Art. 238 of the Labor Code of the Russian Federation. The conditions for the onset of liability are detailed in Section XI of the Labor Code of the Russian Federation. In addition, the obligation to take good care of the values ​​used in the work process is listed as the main one in Art. 21 and 22 of the Labor Code of the Russian Federation.

Types of material liability

The method of compensation for damage caused directly depends on how it is stipulated in the employment contract. Existing species material liability classified by:

• the subject and the amount of compensation - the employee's obligation is differentiated, the employer's - for the most part, full;
• the number of subjects - individual and collective;
• method of compensation - by agreement, one-time document or court decision.

Labor legislation gives the employer the right to claim material compensation for the damage caused, but does not oblige him to do so upon revealing each such fact, Art. 240 of the Labor Code of the Russian Federation.

Liability conditions

As a general rule, the employee's liability for material damage caused to the company does not automatically arise, even if the amount is established and proven. In order to bring the hired person to account under a written agreement or under a one-time document (acceptance certificate, custody paper, invoice or inventory), it is necessary to have several essential conditions:

• the damage is valid (hypothetical losses within labor relations not considered)
• guilt in the actions (inaction) of the employee or criminal intent;
• proven causal relationship between harm and employee actions (memoranda, inspection materials, inventory data, video surveillance materials);
• lack of evidence that the responsible person has made every effort to avoid or reduce the amount of damage;
• the injured party has put forward a claim for compensation (voluntary or compulsory).

From the point of view of the onset of material liability, the existence of an agreement on the obligation to reimburse the full amount of damage caused significantly reduces the duration of the procedure and the number of its stages. But even in the absence of a special clause in the employment contract or a separate agreement with the employer, the employee cannot avoid full responsibility (Article 243 of the Labor Code of the Russian Federation) if:

• the damage was the result of intent;
• the employee committed the destruction of property in a state of intoxication (alcoholic, narcotic, toxicological);
• material damage was caused as a result of an offense;
• the damage was caused not in the performance of labor functions (this case does not fall under the Labor Code of the Russian Federation and will be considered from the point of view of general legislation - civil or criminal).

In the presence of these conditions for the onset of material liability, minors can be brought to it, but only in court, because the law does not provide for the conclusion of agreements with them on full liability, Article 242 of the Labor Code of the Russian Federation. It should be borne in mind that in cases of intentional harm, the Labor Code will not even protect pregnant women.

The principle of material responsibility

The essence of material liability in labor legislation is more fully disclosed if the principles of its imposition are highlighted:

The timing

Liability issues are considered within the scope of the provisions of the Labor Code only if the damage was caused as a result of the performance of work duties. Anything that is done outside the company or working time must be qualified in accordance with the norms of civil and criminal law. However, this does not mean that former employee cannot be held liable after termination of a working relationship with him.

As insurance, the employer can use, which provides for the opportunity to apply for compensation a year later after revealing the fact of material damage and identifying the perpetrators. It also confirms this right, which says that the termination of the employment contract does not terminate the right to receive compensation for the damage caused during the cooperation.

For the employee, the danger lies in the fact that checking the integrity of stocks and property may occur not on the day of dismissal, but much later. Theoretically, each business entity must conduct an inventory annually no later than the end of the year, before drawing up the final reporting, Order of the Ministry of Finance No. 49. So the deadlines for filing claims can stretch up to two years after the dismissal of a specialist.

Hired persons who, according to the Government's list, are those with whom it is allowed to conclude an agreement on full financial liability of the employee, should know that upon dismissal, the employer is obliged to conduct an unscheduled inventory of the site entrusted to the specialist in order to identify shortages. If, according to the results of an extraordinary check, all the values ​​were in stock and in good condition, then the materially responsible person can be relatively calm.

The term for applying for compensation for damage is one year from the date of establishing the value of the lost valuables and the perpetrators, Art. 392 of the Labor Code of the Russian Federation.

Target

In addition to returning the value of stolen or damaged valuables, financial liability pursues a number of other goals:

• restoration of the lost (in money, property or in another agreed way);
• educational function - the inevitability of punishment helps the parties to be more attentive to their own obligations under the Labor Code of the Russian Federation;
• legal meaning - the parties can count on full compensation only if the procedures established by law are observed, otherwise this right will be lost.

The limits

Article 242 of the Labor Code of the Russian Federation allows the employer to hold employees fully responsible for the values ​​entrusted to them. This can be done immediately upon signing an employment contract, in the course of work, draw up a separate agreement or issue an order to impose additional responsibilities on a person.

Essential in this case will be the clause that only representatives of certain professions from the list of positions related to service can be brought to full responsibility. Money or the preservation of stocks, Art. 244 of the Labor Code of the Russian Federation. For these purposes, the Ministry of Labor of the Russian Federation, by its Resolution No. 85, approved a list of professions and types of work, as well as samples of agreements on full individual and collective liability.

For those with whom the contract is not concluded, the limits of liability are established by Art. 241 of the Labor Code of the Russian Federation - no more than one average earnings, calculated according to the rules of Art. 139 of the Labor Code of the Russian Federation. In addition, Art. 248 of the Labor Code of the Russian Federation limits the period for obtaining even such an amount of compensation by way of simple deduction from the calculated amount - you can use this right only within a month from the date of establishing the fact and the amount of damage caused. If the deadline is missed, the employer can only recover compensation through the court.

The employer's right to refuse to recover damages from the employee

The circumstances of damage to property or loss of part of the inventory may be taken into account in the internal proceedings. For this, when carrying out measures to establish the amount of damage, it is customary for an employee to demand an explanation of his actions (inaction). If justifying points are found, the employer has the right to waive the claim for compensation in whole or in part, Art. 240 of the Labor Code of the Russian Federation. In this case, the authorities can be guided by considerations:

• small amount of damage;
• life circumstances and material conditions of the offender;
• position of the owner of the property (may be contained, for example, in a collective agreement).

If the responsibilities at a new place of work are inextricably linked with the need to maintain and preserve the values ​​of the company, understanding the individual intricacies of the concept of financial responsibility will not be superfluous for everyone entering the position. But even if the future specialty is not mentioned in the List of the Ministry of Labor, one should not forget that the obligation to monitor the safety of the employer's property is recorded as one of the main ones in Art. 21 of the Labor Code of the Russian Federation, and full financial responsibility can overtake even without a contract signed about it.

Lawyer of the collegium of legal protection. He specializes in handling cases related to labor disputes... Defense in court, preparation of claims and others normative documents to the regulatory authorities.

Material liability is a type of legal liability, the essence of which is that the guilty party is obliged to compensate the other party for property damage caused by it as a result of non-performance or improper performance job responsibilities.

It implies compensation by the guilty person for full property damage. Both the employer and the employee can be held liable.

In accordance with article 37 of the Constitution of the Russian Federation, labor is free. Everyone has the right to independently use their abilities for work, both physical and intellectual.

The legislation provides for different legal forms of labor organization, but first of all it implies the conclusion of an employment contract. Because of this, we should talk about the differences between two types of responsibility: the material responsibility of the employee and the employer.

The employee is obliged to compensate the employer for the direct actual damage caused to him. Unearned income, i.e. lost profits are not subject to collection from the employee by the Labor Code of the Russian Federation of 12/30/2001 N 197-FZ (as amended on 07/21/2007).

The legislator has consolidated this provision, ensuring the protection of the employee as the least weak and economically unprotected party to the employment contract. Labor legislation does not cover the concept of damage. When considering this issue, it is necessary to be guided by the provisions of the Civil Code of the Russian Federation, which determines that the real damage caused by the employee to the employer is the costs that the person whose right has been violated has made or will have to make to restore the violated right in the event of loss or damage to his property Civil Code Of the Russian Federation (Part One) dated 30.11.1994 N 51-FZ (as amended on 26.06.2007)

The Labor Code of the Russian Federation defines the concept of "actual damage", by which the legislator understands a real decrease in the employer's cash assets or deterioration of the specified 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 make costs or unnecessary payments for the acquisition, restoration of property or for compensation for damage caused by the employee to third parties.

So, the employee is financially responsible:

for direct actual damage directly caused by him to the employer;

for damage incurred by the employer as a result of compensation for damage to other persons.

If it is proved that the damage was caused through the fault of several employees or the employee and other persons who are not in an employment relationship with the organization that suffered the damage, then they may be jointly and severally liable. However, it should be borne in mind that such liability can be imposed on them only on condition that a court decision establishes that the damage was caused by their joint intentional actions.

Article 239 of the Labor Code of the Russian Federation provides for cases that exclude the material liability of the employee. Such cases include the occurrence of damage due to force majeure, normal business risk, extreme necessity or necessary defense. The Law also says that the employee is released from material liability arising as a result of causing damage to the property of the employer, if the employer has not fulfilled the obligation to ensure proper conditions for the storage of property entrusted to the employee.

Failure by the employer to fulfill the obligation to ensure proper conditions for the storage of property entrusted to the employee may serve as a basis for refusal to satisfy the employer's requirements, if this caused damage to the application by the courts of legislation regulating the material liability of employees for damage caused to the employer: Resolution of the Plenum of the Supreme Court of the Russian Federation dated 16.11.2006 N 52.

An example can be cited when, through the fault of the heads of enterprises, the necessary conditions were not created to ensure the safety of funds during their storage and transportation. In this case, the cashier does not bear responsibility and it is fully transferred to the employer (clause 29 of the Procedure for conducting cash transactions, approved by the Decision of the Board of Directors of the Bank of Russia No. 40 dated September 22, 1993)

An agreement on full liability can be concluded with employees. This is due either to the peculiarities of work, or to the precaution of the employer, since there are often situations when, in the process of work, employees of an enterprise can harm the property of this enterprise, for example, disable office equipment. The business can generally cover damage from own funds, however, it has the right to demand that the corresponding costs aimed at compensation for damage be borne by the offending employee or the team of employees.

Liability based on a full liability agreement can be of two types:

1) individual material responsibility;

2) collective financial responsibility.

Material liability in full amount of damage caused to the employer can be established by an employment contract concluded with the head of the organization, deputy heads, chief accountant.

It is important to develop a control system when organizing the work of employees, especially if they are financially responsible persons. In the long term, this system should provide for the procedure for appointing persons in charge for specific property, legalization of this responsibility and its reflection in accounting.

The Labor Code of the Russian Federation provides for cases of full responsibility of employees. So, in accordance with article 243 of the Labor Code of the Russian Federation, material liability in the full amount of damage caused is imposed on the employee in the following cases:

1) when, in accordance with the provisions of the Labor Code of the Russian Federation or other federal laws, the employee is fully liable for damage caused to the employer in the performance of the employee's work duties;

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

3) deliberate infliction of damage;

4) causing damage in a state of alcoholic, drug or other toxic intoxication;

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

6) infliction of damage as a result of an administrative violation, if such is established by the relevant state body;

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

8) damage caused not by the employee job responsibilities.

The Plenum of the Supreme Court of the Russian Federation in its resolution "On the application by courts of legislation regulating the material liability of employees for damage caused to the employer" On the application by courts of legislation regulating the material liability of employees for damage caused to the employer: Resolution of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 N 52. He explained that the courts need to keep in mind that, by virtue of part 2 of article 243 of the Labor Code, financial liability in full can be assigned to the deputy head of the organization or to the chief accountant, provided that this is established by the employment contract. If the employment contract does not stipulate that these persons, in the event of damage, are fully financially liable, then they can only be liable within the limits of their average monthly earnings. It should be borne in mind that the full financial responsibility of the head of the organization for the damage caused to the organization comes by virtue of the law (Article 277 of the Labor Code). Therefore, the employer has the right to demand from the head of the organization full compensation for damage, regardless of whether the employment contract with him contains a condition of full liability.

According to the Federal Law "On Communications", telecom operators bear property responsibility for the loss, damage to valuable postal items, shortage of postage investments in the amount of the declared value.

In the Resolution of the Plenum of V.S. it is explained that when considering a case on compensation for direct actual damage caused to the employer in full, the employer must provide evidence that, in accordance with the Labor Code or other federal laws, the employee can be held liable in full the damage caused and at the time of its infliction reached the age of 18, except for cases of deliberate damage, or damage caused by alcohol, drug or other toxic intoxication, or if the damage was caused as a result of a crime or administrative violation, when an employee may be involved to full liability until the age of 18 on the application by courts of legislation regulating the material liability of employees for damage caused to the employer: Resolution of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 N 52 Clause 8.

A contract is concluded with the employees on full financial responsibility. The agreement on the full collective responsibility of employees must indicate the parties to the agreement, which are the employer represented by the authorized organization, as well as the team represented by the foreman and members of the team.

In accordance with this agreement, the team assumes full collective material responsibility for all values ​​transferred to it for recounting, receiving, issuing, processing, storing and moving values ​​and undertakes to take measures to prevent damage.

The contract must define the rights and obligations of the brigade.

A written agreement on collective (brigade) material liability for damage is concluded between the employer and all members of the team (brigade) - article 245 of the Labor Code of the Russian Federation.

In accordance with Article 244 of the Labor Code of the Russian Federation, written agreements on full individual or collective (brigade) material liability, i.e. to reimburse the employer for the damage caused in full for the shortage of property entrusted to the employees, are concluded with employees who have reached the age of 18 and are directly servicing or using monetary, commodity values ​​or other property.

Resolution of the Ministry of Labor of Russia dated December 31, 2002 No. 85 "On approval of the lists of positions and jobs replaced or performed by employees with whom the employer can conclude written agreements on full individual or collective (brigade) liability, as well as standard forms of agreements on full material responsibility "On approval of the lists of positions and jobs replaced or performed by employees with whom the employer can conclude written agreements on full individual or collective (team) liability, as well as standard forms of agreements on full liability: Resolution of the Ministry of Labor of the Russian Federation of December 31, 2002 N 85. New lists of positions and jobs and standard forms of contracts have been approved, which provide for cases of full responsibility of the employee. They correspond to the current labor legislation and the realities of the time. These include:

1) a list of positions and jobs replaced or performed by employees, with whom the employer can conclude written agreements on full individual material liability for the shortage of entrusted property (For example, work: for accepting and paying all types of payments; for settlements when selling (selling) goods, products and services (including not through the checkout, through the checkout, without a checkout through a seller, through a waiter or other person responsible for making settlements); for servicing vending machines and cash machines;

2) a standard form of an agreement on full individual material liability;

3) a list of works in the performance of which full collective (brigade) financial liability for the shortage of property entrusted to employees may be introduced;

4) a standard form of an agreement on full collective (brigade) material responsibility.

Please note that the lists are exhaustive. And the standard forms of contracts are not such. This means that the standard forms of contracts are samples on the basis of which an enterprise can draw up its corporate forms of contracts on full individual and collective material liability.

Material

Material

adj., uptr. cf. often

Morphology: material, material, materially, material; more material; bunk bed materially

1. The material world is the surrounding world, which a person perceives with the help of the senses: sight, hearing, touch, smell, taste.

In the material world, nothing disappears.

2. Material is an object that exists in reality and is made of a certain substance, material, etc. and which can be perceived with the help of the senses.

Items of material culture. | The Baikal darkness is so charming that you can literally feel it like a material object, velvety and delicate.

3. Material benefits are money, property that you own or use.

He worked in the open air, not looking for material benefits, not tormented by ambitious desires. | Happiness does not depend on material wealth.

4. Material well-being or welfare is a good financial situation of a person or society.

He believed that a person without a diploma is simply no one, he has no chances either for a career or for achieving material well-being.

5. Financial situation a person is his security with money and property.

Difficult financial situation. | He decided to improve his financial situation.

6. Material interest or material interest is the expectation of something, for example, a job, a good income.

People's concerns about their material interests and disregard for the spiritual world have always outraged him.

7. If anyone inflicts anyone or something material damage, which means that he brings losses to this person or enterprise.

Andrey drooped, threatening with all his appearance to inflict material damage on the "Eastern Restaurant".

8. Material assistance is financial (food, etc.) assistance, which is usually allocated to low-income people.

Students received financial assistance from local authorities.

9. Material liability is the employee's responsibility for the funds of the enterprise or organization.

I was financially responsible for the event.

10. If you financially secure means you have enough money to lead a comfortable life.

I can say that I am financially secure.

11. If you financially dependent (dependent) from someone, it means that you live on the means of that person.

Children are always financially dependent on adults. | She did not want to be financially dependent on a rich stepfather.

Dictionary Russian language Dmitriev... D. V. Dmitriev. 2003.

Antonyms:

See what "material" is in other dictionaries:

1) material, gross, sensual, carnal as opposed to the ideal; 2) meaningful (concerning the very essence of the object) as opposed to the formal (relating to the appearance, form of the object). Dictionary of foreign words included ... ... Dictionary of foreign words of the Russian language

Substantial, real, corporeal, physical; objective, materialized, clothed with flesh, clothed in flesh, property, mundane, financial, monetary. Ant. ideal, unreal Dictionary of Russian synonyms. material 1. material ... Synonym dictionary

And material, material, material; material, material, material. 1.Full only forms. Adj. to material in 1 value Material manager. Material warehouses. 2. only full forms. App., By value related to earnings ... Ushakov's Explanatory Dictionary

- (lat. material) corporeal, material as opposed to immaterial; the accentuated moment of the content (and, therefore, of the reality it describes) as the opposite of the formal one. Philosophy: Encyclopedic Dictionary. M .: Gardariki. Under… … Philosophical Encyclopedia

material- MATERIAL, material, physical ... Dictionary-thesaurus of synonyms for Russian speech

- [rya], oh, oh; flax, flax. 1. see material. 2. Substantial, real, as opposed to. spiritual. M. world. 3. full Relating to the standard of living, to income, to earnings. Financial situation. Material incentives. Material part (special) ... ... Ozhegov's Explanatory Dictionary

Material- material, physical, real; for example, the material world ... The beginnings of modern natural science

material- ▲ related (with) matter materiality. material related to matter. physical. real. ↓ hereditary, material culture, reward ... Ideographic Dictionary of the Russian Language

Material- m., in meaning. noun An employee performing the duties of the manager of the material part of a gold mine or mine. The material clerk, who manages the mine barns and warehouses and makes the issuance and receipt of supplies and everything from them ... ... Dictionary of the gold craft of the Russian Empire

material- material, material. Pronounced [material], [material] ... Dictionary of pronunciation and stress difficulties in modern Russian

Books

• Mother Earth. Vedic doctrine of life, Usanin Alexander Evgenievich. The material world is a spiritual school. Those souls who are focused only on themselves are in the bodies of minerals, crystals and precious stones. As her range of interests expanded ...

Often, when signing an employment agreement, most people do not carefully study the text to be signed. Liability clauses of a material nature are generally ignored.

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But it is precisely these points that require the most careful study, since they may be the basis for a serious conflict between the parties. What does the concept of material responsibility include, when and under what circumstances does it arise, what are its fundamental types?

Concept

In the field of labor relations, such a concept as material liability expresses the obligation of the party to the employment agreement, guilty of causing damage to the opposite party, to make up for it in the manner and amount established by labor legislation.

In fact, material responsibility is a method to defend property rights, both for the employer and for the employee himself.

In this case, losses mean material damage incurred by one of the parties to the agreement due to non-performance or negligent performance of its own obligations by the other party.

The characteristics of liability of a material nature for participants in labor relations are as follows:

• the existence of mutual financial responsibility is due to the conclusion of a contractual agreement;
• the emergence of liability arises in case of violation of obligations under the terms of the contract;
• only the parties who have entered into contract of employment;
• any of the parties is held liable only if the harm to the opposite party is caused due to failure to perform due duties;
• compensation for the incurred loss can be voluntary, both on the one hand and on the other.

Writing labor contract and the agreements attached to such may contain information under what circumstances the material liability of the parties occurs.

At the same time, the employee's liability to the employer specified in the agreement cannot be more, and the employer's liability to the employee cannot be less than that defined by law.

In a situation where, after causing damage, the employment agreement is terminated, the guilty party is not released from liability. The issue of compensation can be settled by mutual agreement of the parties or in court.

Material liability for the employer to the employee arises in situations where damage has arisen due to:

• illegal deprivation of the opportunity to perform labor duties (Labor Code of the Russian Federation);
• damage to the employee's personal property;
• untimely issue wages or other due payments;
• causing moral harm to the employee.

By the amount of compensation

In terms of the amount of compensation, the following are distinguished:

• full compensation in the amount of actual material damage;
• limited compensation in the amount of actual material losses, but not more than the employee's average earnings.

According to the legislation, the employer bears full financial responsibility in all cases. For an employee, full financial liability arises only in some cases specified by law, in all others he bears limited liability.

According to the adopted legislation, in most cases, the employee's material liability is limited to his official average monthly earnings, which is why it is called limited.

Such a norm is due not only to concern for protecting the interests of the employee, but also to working conditions. Often, stress is the cause of damage. working conditions when an increased concentration of attention is required from the employee.

But by the end of the working day, the level of hazard assessment and self-control may decrease and contribute to a situation that contributes to the breakdown of working tools, the release of defective products, etc.

If the amount of damage caused does not exceed the average monthly salary of the employee, then with his consent, the employer may create an order for compensation for damage within a month. This term is counted from the moment of completion of the inspection and determination of the amount of damage caused.

Article 243 of the Labor Code of the Russian Federation defines the cases when full financial responsibility occurs on the part of the employee:

• if the material liability of the employee for damage caused in the process of fulfilling job duties is imposed by labor legislation;
• in case of a shortage of values ​​entrusted on the basis of a written document;
• in case of deliberate infliction of material harm by an employee to an employer;
• when causing damage in a state of alcoholic, drug or other intoxication caused by toxic effects;
• when harm is caused as a result of a crime committed by an employee, if such is determined by a court verdict;
• when disclosing confidential information that is a commercial, official or other secret protected by law;
• when the employee causes damage to the employer during his free time from work, but using the means of production belonging to the employer.

The employer is obliged to compensate the material damage caused to the employee in full. In this case, the situations when the employer's liability arises may be different, so he is obliged to compensate for the damage if:

• damage to the employee's property. This means damage, damage, loss of personal belongings of an employee when stored within the territory of the employing organization, even if they were not transferred for safekeeping;
• reimbursement of monetary values. These include, for example, compensation for the postponement of vacation if the employee incurred non-reimbursable costs (purchased tickets, booked a hotel room, etc.);
• untimely or incomplete payment of wages;
• the life or health of the employee was harmed through the fault of the employer;
• the employee has suffered moral damage, which is considered an infringement of the dignity of the person, business reputation, privacy, family secrets, as well as copyright infringement, personal use of the name, etc.

The employer's offense can also be expressed by certain of his actions:

• discrimination in the workplace;
• illegal dismissal;
• violation of the established order;
• illegal transfer to another position;
• unjustified bringing to disciplinary responsibility;
• violation of safety regulations due to inaction;
• failure to comply with a court decision on the reinstatement of an employee in office.

By the number of guilty persons

According to the number of perpetrators and the method of distribution of the resulting responsibility, they differ:

• individual type of responsibility;
• group responsibility of several employees.

According to the methods of division of responsibility among the group of guilty workers, responsibility differs:

• share;
• solidary;
• subsidiary;
• collective (brigade).

Simultaneously with the personal material liability of the employee, legislation implies joint liability for material damage caused to the employer. It also arises on the basis of contractual relationships.

The employer enters into a contractual agreement on joint material liability with a certain collective (team), if during the implementation labor activity it is not possible to conclude an agreement on financial responsibility with all employees personally due to the joint application of the values ​​obtained for work and the use of them. (Article 245 of the Labor Code of the Russian Federation,).

A general liability agreement must be concluded in writing between the employer and all team members.

It is based on a standard contract. The document fixes:

1. Subject of the contractual relationship.
2. Rights and job duties parties.
3. Reporting and accounting procedure.
4. The procedure for covering material losses by the parties.

The contract must be signed by the employer and all team members, including its leader.

According to the agreement, the collective is obliged to bear responsibility for the actual damage caused by the collective (even if one person is guilty) and for the losses incurred by the employer as a result of compensation to third parties for damage caused by the fault of the collective.

The amount of material losses is established according to the actual losses, determined on the basis of market prices operating on the day the damage occurred in a particular area.

But at the same time, it cannot be less than the amount that is indicated in the accounting records as the value of the lost property, but taking into account the degree of wear and tear of materials.

The Labor Code defines situations when the occurrence of material liability for the parties is excluded:

• natural economic risk;
• force majeure circumstances;
• criteria of extreme necessity;
• a situation of necessary defense;
• lack of appropriate conditions for the preservation of property, which arose through the fault of the employer.

By the method of compensation

The method of compensation for the damage caused differs:

• compensation based on a written agreement concluded by mutual decision of the parties, otherwise voluntary compensation;
• compensation based on a court decision;
• compensation based on the employer's order.

The employee's financial liability is expressed in the form of real compensation for the financial cost of the damage caused. Moreover, the employee has the right to on their own cover the damage caused, in part or in full.

In such a situation, the installment plan is established by agreement of the parties. The employee must write a commitment stating that he undertakes to pay damages, specifying the amounts of payments and periods of payment.

If the employer agrees, then the employee has the right to compensate for the damage by transferring equivalent property or recreating the damaged one.

If the employee refuses to voluntarily cover the damage, the amount of losses exceeds the employee's average monthly earnings, or after the employee's dismissal there is an outstanding debt, the employer has the right to go to court with a claim for damages.

Material losses incurred by the employee through the fault of the employer shall be reimbursed as follows:

• if the deadlines for the payment of wages, payment of the vacation period or other payments due to the employee are disrupted, the employer's debt becomes the payment monetary compensation in the amount of at least 1/300 of the current refinancing rate of the Central Bank of the Russian Federation of the amount of the delayed volume financial resources for each day, keeping a report from the day after the period specified by the contractual document to the date of valid reckoning, inclusive;
• the moral damage caused is compensated in monetary form, determined by a decision of the parties or by a court order, if the parties could not agree. The magnitude compensation payment appointed by the court on the basis of certain conditions of the case, the level of the employer's conscription, the nature of the damage caused.

In episodes when the employer is unable to compensate material damage in the prescribed amount due to a difficult financial situation, the payment schedule is determined. As a last resort, the employer can be declared bankrupt.

What are the types of employee liability

According to the provisions of labor legislation, material liability of employees can only occur on the basis of genuine damage (Article 238 of the Labor Code).

This means a real decrease in the available assets of the employer or deterioration of the condition of the employer's property, even if it belongs to other persons, but the employer is responsible for it.

The present damage also includes the need for the employer to make payments to other persons or the need for expenses for the restoration or purchase of property.

Lost profits and not received benefits are not the reason for material recovery from the employee. That is, liability of a financial nature is not assumed if the employee was absent or was late, due to which there was a downtime.

Liability can be full or limited.

Full financial liability is called so because the employee compensates for the damage in full without any limitation, but not more than the amount of direct damage.

All cases of full financial liability are directly indicated in the legislation, the employer is not entitled to establish any additional conditions.

Material liability in the full amount of the damage caused is imposed on the employee if, in accordance with the Labor Code of the Russian Federation, the employee is entrusted with material liability in full for damage caused to the employer in the performance of the employee's labor duties.

According to Part 2 of Art. 242 of the Labor Code of the Russian Federation, material liability in the full amount of damage caused may be imposed on employees who did not enter into a special contract only in cases provided for Labor Code or other Federal laws and not local regulatory legal acts. It should be noted that such responsibility has age limits. It is fully imposed on employees over 18 years of age. For persons under the age of 18, liability arises only for damage caused by alcohol, drug or toxic intoxication, and for damage caused as a result of a crime or administrative violation.

If the need to conclude an agreement on full material liability arose after the conclusion of an employment contract with an employee and is due to the fact that, due to the change in the current legislation, the position he occupies or the work performed is included in the list of positions and jobs replaced or performed by employees with whom the employer can conclude written agreements on full financial liability, but the employee refuses to conclude such an agreement, the employer, by virtue of Part 3 of Article 73 of the Labor Code of the Russian Federation, is obliged to offer him another job, and in its absence or the employee's refusal from the offered job, the employment contract is terminated with him in accordance with clause .7 Article 77 of the Labor Code of the Russian Federation (employee refusal to continue work in connection with a change in the essential conditions of the employment contract).

Full financial responsibility is imposed on the employee even if he has caused real damage to the property of the organization. Article 243 of the Labor Code provides for 8 cases of damage caused by an employee, for which he is fully financially liable. Article 121 of the Labor Code provided for 7 specified cases.

Material liability in full amount of the damage caused shall be borne by the employee in the following cases:

• 1.when, in accordance with this Code or other federal laws, the employee is liable in full for damage caused to the employer in the performance of the employee's work duties;
• 2. shortage of valuables entrusted to him on the basis of a special written contract or received by him under a one-time document;
• 3. intentional infliction of damage;
• 4. causing damage in a state of alcoholic, drug or toxic intoxication;
• 5. causing damage as a result of criminal actions of an employee, established by a court verdict;
• 6. infliction of damage as a result of an administrative violation, if such has been established by the relevant state authority;
• 7. disclosure of information constituting a secret protected by law (official, commercial or other), in cases stipulated by federal laws;
• 8. damage caused not during the performance of the employee's work duties.

For modern organization production and trade process is characterized by the fact that two or more financially responsible persons carry out jointly their labor functions... In addition, with a multi-shift, round-the-clock work regime, the transfer of values ​​from one financially responsible person to another becomes much more difficult. In this case, it is not possible to delimit the material responsibility of each employee and conclude an individual contract with him. In addition, when performing processing work material resources access to them in warehouses, bases and other storage places is available not only to financially responsible persons, but also to other workers: loaders, packers, auxiliary workers. In such circumstances, collective (brigade) liability is applied.

In cases determined by law, full financial liability may be established on the basis of the concluded agreement. The full liability agreement supplements the general provisions on material liability, providing for full compensation for damage in cases established by law, and at the same time specifies the conditions for the preservation of property. Applied to real conditions of this particular enterprise, a well-known analogy can be drawn between an agreement on full liability and local rules of law governing that part of a particular situation that goes beyond the general rules of law. If, due to the omission of the administration, the specified agreement is not concluded, this does not mean the release from material liability of the persons guilty of causing damage - the latter will bear liability (usually limited) in accordance with the legislation on material liability of workers and employees (since otherwise is not provided for by law).

When introducing collective (brigade) financial liability, it is necessary to observe the principles and procedure for its application, enshrined in Art. 245 of the Labor Code and the Decree of the Ministry of Labor of the Russian Federation of December 31, 2002 N 85 "On approval of the lists of positions and jobs replaced or performed by employees with whom the employer can conclude written agreements on full individual or collective (team) material liability, as well as standard forms of agreements on full material responsibility ". This list mainly contains such types of work, in the performance of which contracts on full individual material liability can be concluded.

The issue of introducing collective liability is decided by the employer and formalized by order. The composition of the brigades is formed from the leaders structural units, their deputies, storekeepers, commodity experts, other workers, directly serving material values. It is unlawful to include loaders, drivers in the brigade Vehicle, forklift trucks, persons under the age of 18. Leadership of the team is entrusted to its leader, while taking into account the opinion of the team. In the event of a temporary absence of the foreman, one of the team members performs his duties.

Directly by Decree of the Ministry of Labor No. 85, a list of works was established for which full collective financial responsibility was established. Such works include:

Works: on acceptance and payment of all types of payments; on settlements for the sale (sale) of goods, products and services (including not through the checkout, through the checkout, without the checkout through the seller, through a waiter or other person responsible for making settlements); maintenance of vending and cash machines; for the production and storage of all types of tickets, coupons, season tickets (including season tickets and coupons for food (food) and other signs (documents) intended for payments for services.

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

Works: purchase (acceptance), sale (trade, release, sale) of services, goods (products), preparation of them for sale (trade, vacation, sale).

Works: acceptance for storage, processing (manufacturing), storage, accounting, release (issuance) of material assets in warehouses, bases, storerooms, points, offices, sites, in other organizations and divisions; for equipping passenger ships, carriages and airplanes; for servicing the residential sector of hotels (campgrounds, motels, etc.).

Works: on the reception from the population of cultural and household items and other material values ​​for storage, for repairs and for performing other operations related to the manufacture, restoration or improvement of the quality of these items (valuables), their storage and other operations with them; for renting out cultural and household items and other material values ​​to the population.

Works: receiving and processing for the delivery (escort) of cargo, baggage, mail and other material and monetary values, their delivery (escort), issue (delivery).

Works: on the manufacture (assembly, installation, adjustment) and repair of machinery and equipment, devices, systems and other products manufactured for sale to the public, as well as parts and spare parts.

Works: on the purchase, sale, exchange, transportation, delivery, shipment, storage, processing and use in the production process of precious and semiprecious metals, stones, synthetic corundum and other materials, as well as products from them.

Works: on growing, fattening, keeping and breeding agricultural and other animals.

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

At the same time denial individual workers from the performance of work related to material liability, as part of the brigade, should not interfere with the introduction of brigade liability. Such an employee may be offered another job, and if it is absent or the employee refuses to do such work, he may be dismissed due to the refusal of the job offer due to changes in essential working conditions.

Let's pay attention to the peculiarities of proving the guilt of the workers of the brigade.

To be exempted from material liability (in terms of collective (brigade) responsibility), a member of the team (brigade) himself must prove the absence of his guilt, that is, there is an exception from the general rules of Art. 233, 238 of the Labor Code of the Russian Federation, imposing the duty of proving the degree of the employee's guilt on the employer.

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

When recovering damage in court, the degree of guilt of each member of the team (brigade) is determined by the court.

Article 250 of the Labor Code provides the labor dispute resolution body with the right to reduce the amount of damage to be recovered from the employee. Its content basically corresponds to Art. 123 Labor Code. The body for the consideration of labor disputes, named in Art. 250 of the Labor Code, there can only be a court (Article 248 of the Labor Code).

Provided by art. 250 of the Labor Code, the possibility of reducing the amount of damage subject to compensation, taking into account the degree of guilt, specific circumstances and the financial situation of the employee, refers to all types of material liability of employees.

Article 240 of the Labor Code grants the employer the right to refuse to recover damages caused by the employee, in whole or in part.

This right is in accordance with Art. 240 the employer can use taking into account the circumstances in which the damage was caused.

Reducing the amount of damage to be compensated by the employee is permissible in exceptional cases, provided that there are those specified in Art. 250 of the Labor Code of the conditions that must be confirmed by evidence carefully checked in the court session, with the obligatory statement in the decision of the reasons for the reduction of the amounts recovered.

The specific situation in which the damage was caused should include the circumstances that prevent the employee from performing the duties assigned to him properly, in particular, the lack of normal storage conditions, improper work organization. At the same time, it is necessary to consider whether the employee took measures depending on him to prevent damage.

To check the financial situation of the employee, evidence of the property status of the perpetrator is requested (the amount of earnings, other basic and additional income), his marital status (the number of family members, the presence of dependents, deduction according to executive documents), etc.

Reduction of the amount of damage subject to compensation is not allowed if the damage was caused by a crime committed with a mercenary purpose. This crime includes, for example, theft of property.

In case of limited liability, the employee shall compensate for damage within predetermined limits. According to Art. 241 of the Labor Code of the Russian Federation for damage caused to the property of the employer, the employee, through whose fault the damage was caused, bears material responsibility in the amount of direct actual damage, but within the limits of his average monthly earnings, unless otherwise provided by the Labor Code of the Russian Federation or federal laws.

The Labor Code of the Russian Federation does not establish a list of grounds for bringing to limited liability. Practice shows that the most typical cases are the following: damage or negligent destruction of materials (semi-finished products, raw materials, fuel), products, products, devices, tools, overalls, office equipment, loss of documents, shortage of funds, payment of a fine (compensation for losses) by the employer to third parties through the fault of the employee.

The basic category in the definition limited liability is the concept of average earnings. The procedure for calculating the average wage is established by Article 139 of the Labor Code of the Russian Federation. To calculate the average wage, all types of payments provided for by the wage system are taken into account, which are used in the relevant organization, regardless of the sources of these payments. In any mode of work, the average wage of an employee is calculated based on the actually accrued wages and hours actually worked by him for the 12 months preceding the moment of payment. Additionally, it is worth highlighting the Regulation on the specifics of the procedure for calculating the average wage, approved by the Decree of the Government of the Russian Federation of April 11, 2003 No. 213.

Accounting is an orderly system for collecting, registering and summarizing information in monetary terms about property, obligations of organizations and their movement through continuous continuous and documentary accounting of all business transactions (Article 1 of the Federal Law of February 23, 1996 (November 21, 1996 No. ) N 129-FZ "On accounting"). Normative acts on accounting, issued before the entry into force of the said Federal Law, are valid in the part that does not contradict it (Art. 19 of the same Law). The amount of damage must be documented.

Actual losses based on local market prices may exceed financial assessment the amount of damage. In the latter case, the amount of damage is calculated based on the quoted prices.

However, in any case:

• · A monetary estimate of the amount of damage is given on the day it was caused;
• · When determining the amount of damage, the actual loss of values ​​is not taken into account within the established norms of losses. First of all, the norms of natural loss, which means a decrease in the initial weight and volume of values ​​(including raw materials, semi-finished products, industrial products and consumer goods) in the process of sale, storage and transportation, which is the result of their natural (physical and chemical ) properties. The rates of natural loss are differentiated by types of values, taking into account the conditions of sale, storage and transportation.

According to Part 2 of Art. 246 of the Labor Code (basically corresponding to Article 255 of the Labor Code), the federal law may establish a special procedure for determining the amount of damage subject to compensation to the employer:

• Theft, deliberate damage, shortage or loss certain types property and other valuables;
• · In cases where the actual amount of damage caused exceeds its nominal amount.

A special procedure for calculating the amount of damage before the transition to a market economy was applied, first of all, in cases of theft and shortage of foreign currency and other currency values. In the new economic conditions, the amount of damage in case of theft and shortage of foreign currency should be calculated based on the official rate of its sale on the day of causing the corresponding damage. Currency selling rates are periodically published in Russian newspaper and other official publications.

In the event of damage to other currency values, the balance sheet estimate of which does not correspond to their actual value, the damage should be calculated on the basis of an expert opinion, unless otherwise established by special acts.

Thus, Federal Law No. 41-FZ of March 4, 1998 (March 26, 1998) "On Precious Metals and Precious Stones", with amendments and additions, stipulates that in the implementation of transactions permitted by law, payment for precious metals is made taking into account the prices of the world market , and precious stones - at prices determined by expert judgment on the basis of price lists similar to those in effect on the world market, taking into account market fluctuations in prices on the day of sale (clause 1 of article 21 of the said Federal Law).