Recovery of material damage by the employee to the employer. Recovery of material damage caused by an employee Procedure for registration of material damage from an employee
The material side of the relationship "employee-employer" is reduced to the usual exchange: labor and its results for money. This, of course, if we simplify and do not take into account force majeure situations. The latter include cases when an employee has done something so that his company has suffered material losses.
Employers have the right to recover such damage from the would-be employee. But the order of recovery is specified in detail by the legislator in order to prevent unreasonable deductions from subordinates. If the prospect of getting involved in such a process has loomed on your horizon, whether you are an employee or an employer, it is advisable to familiarize yourself with all the regulations in this regard. To do this, we offer this article to help you.
Regulatory regulation
Elements of Responsibility
The obligation of a delinquent employee to pay in rubles for his actions (or inaction) is established by the Labor Code of the Russian Federation (Articles 232, 238 of the Labor Code of the Russian Federation). The same Code also establishes the main elements of such liability (Article 233 of the Labor Code of the Russian Federation).
If at least one of them is missing, it will be illegal to require an employee to pay for the losses caused. Let's take these elements one by one:
- The parties to the conflict must, and not at the time of recovery, but at the time the employee committed those actions that caused damage to his employer.
- human actions. They must be illegal, that is, contrary to the law. Simply put, the worker messed something up, and so on. But doing nothing can also hurt. In legal terminology, this is called inaction.
- Employee fault. A person can cause harm by his actions both intentionally (he did something, knowing full well what it would turn into), and carelessly (did not think and did not calculate the consequences, although he could well have done it).
- causation: the damage to the employer must be a direct result of the actions (inaction) of the employee from whom compensation is required.
- Damage. Those actions mentioned above should entail actual material losses for the enterprise. If an employee messed up, but everything went without consequences, then his management can simply. There is nothing to claim in this case.
When damage is discovered
If there is still damage, the employer needs to calculate its size. According to the law, only direct damage can be recovered from the guilty employee: the monetary equivalent of the property that was lost or damaged (Article 238 of the Labor Code of the Russian Federation).
If a thing was damaged, for which the company is responsible to customers or partners (third parties), its value can also be presented to your employee. For example, a car service worker “broke” a car that does not belong to the workshop, but to its client.
Important: lost profits (the income that could be received from a lost item or money) cannot be demanded from an employee. The only exception is for .
Also, if there is still damage, the employer needs to justify this calculation. This means that you can’t take some amount “out of the blue” and demand that you be paid it.
For calculation, use must be used (Article 246 of the Labor Code of the Russian Federation). This is the minimum value. In addition, you can focus on the market prices for a similar item that were in effect during the period of its loss or damage. In any case, you must be prepared to document the calculation.
However, full compensation for damages is not always possible. The law provides for two types of employee liability:
- Complete, that is, when the employee is obliged to pay the entire amount for damage (Article 242 of the Labor Code of the Russian Federation). It can only be carried by persons expressly specified in the law. These include:
- representatives of some professions (cashiers, accountants, etc.). There is a decree of the Ministry of Labor, in which such professions and positions are listed.
- persons who have lost valuables received under a special document (contract, order, etc.);
- employees whose actions to cause harm are recognized as a crime or an administrative offense;
- employees who caused harm during non-working hours or in a “high” state (alcohol, drugs, etc.), etc.
- Limited: you can only take him from the culprit, it applies to all other employees by default (Article 241 of the Labor Code of the Russian Federation).
When it can't be recovered
In practice, it happens that damage to the enterprise is caused in such circumstances that it would be unfair to punish the employee for this. Labor legislation prudently formulated cases when it is impossible to recover damages from an employee in principle (Article 239 of the Labor Code of the Russian Federation). These include:
- force majeure (force majeure): such circumstances that a person is unable to resist or prevent, for example, an earthquake, war, epidemic.
- cases of normal economic risk: the employee did everything right, in accordance with his professional experience, even showed a certain foresight and tried to prevent disastrous consequences, but the damage still occurred.
- urgent need and necessary defense. These concepts are more related to the field of criminal law.
- The first case: the worker nevertheless caused harm to his enterprise, but did it with the noble goal of saving other people or himself from the danger that threatened them.
- The second case: an employee damaged the property of his organization, defending himself from a criminal. He could protect both himself and someone else. From the standpoint of labor law, he should not pay for damages, but from the standpoint of criminal law, claims may arise against such a hero. It is very easy to exceed the limits of defense under Russian law.
- Finally, the most obvious option: the management entrusted the employee to protect and preserve some property, but did not organize sufficient conditions for this purpose.
How to recover material damage from an employee
Procedure
So, if your organization lost money or property due to the fault of your own employee, the approximate procedure should be as follows:
- A memo is filed in the name of the head of the enterprise. This is usually done by the immediate superior of the alleged culprit or another person (when there are no suspects).
- Based on the note, the director issues an order to conduct an inspection (official investigation) and creates a commission for this purpose.
- Verification (investigation): conducted, employees are interviewed, various evidence is collected, etc.;
- If necessary, law enforcement agencies may be involved at this stage. For example, when it is impossible to identify the culprit on your own, there are clear signs that a crime has been committed, etc.
- After clarifying all the circumstances and identifying the culprit, it is taken from him. or sign, you will have to draw up an act about this.
- The verification (investigation) ends with the issuance of an order. It indicates the culprit, the amount of damage and the circumstances of its infliction.
Be sure to familiarize the guilty employee with this order against signature!
At this stage, the issue of the procedure for recovering damages is decided:
- if an employee can only bear within the limits of a month's earnings, an order is issued to deduct the appropriate amount from his salary. Important: this order must be issued within a month from the day you determined the amount of damage. If you don't meet the deadline, go to court.
- if the employee is subject to full liability, but refused to pay voluntarily, the recovery should be applied to the court.
- if you applied to law enforcement agencies, and a criminal or administrative case was initiated against the perpetrator, it is advisable to demand compensation for harm in a criminal or administrative process, respectively.
To apply to the court, it is necessary to draw up a statement of claim for damages, attach copies of all acts, orders, explanations on the case, labor documents and other documents, pay the state duty and file a lawsuit. The actual recovery is carried out after the entry into force of the decision by the bailiffs.
You can download an example of an order for compensation for mother damage.
Order on compensation for material damage by an employee (sample)
If an employee quit
If your employee caused material damage to the company, his obligation to pay for the damage will cease only after payment. Whether he continues to work or not does not affect this duty. It is simply impossible to issue a restraining order, therefore, in any case, you will have to go to court.
Today we will give you step by step instructions, how to recover material damage from an employee without a court order, as well as tell about cases when material damage to an enterprise cannot be recovered from an employee.
In the course of the activities of any organization, cases may arise when it incurs material losses in the event of damage or loss of property, or as a result of a lost contract. This is almost always the fault of the employees. And if the damage is significant, the desire of the employer to compensate for the damage is quite understandable. But, unfortunately, this is not always possible, and if possible, then not in full.
If the administration of the enterprise intends to punish the guilty employee, then it is imperative to draw up everything correctly, otherwise, even if the employer is right, the employee will easily challenge the decision in court.
For any punishment of an employee, whether it be a financial penalty or disciplinary punishment, labor legislation provides for a certain procedure.
How to properly file a claim for material damage from an employee
Consider the procedure for recovering material damage from the guilty employee step by step.
- Step 1. It is necessary to determine the material damage caused in general terms and the allegedly guilty employee. This is done, as a rule, with the help of a memo from the immediate supervisor of the employee, or the person responsible for the lost or damaged material assets, if the damage was not caused by him.
- Step 2 A commission is being set up to conduct an internal investigation. It is desirable to include in the commission an accountant of the material desk and an employee who can assess the damage caused in the event of equipment breakdown. If there is no such employee in the organization, then an external expert can be involved in the commission. Or, alternatively, the commission asks for expert opinion and includes it in the results of the investigation. During the investigation, the members of the commission determine exactly what is missing or damaged and display the exact amount in monetary terms.
- Step 3 The commission requests explanations from the guilty employee. It is better to do this in writing and hand it to the employee against signature. This step is carried out in the same way as when conducting investigations regarding the imposition of a disciplinary sanction.
- Step 4 The commission examines all documents and makes a conclusion about the degree of guilt of the employee and the possibility of recovering damages from him. This is not possible in all cases, more about them will be discussed below.
- Step 5 An order is issued to withhold funds from the employee in accordance with the conclusion. If it is impossible to recover damages from the employee, then it is not necessary to issue an order.
- Step 6 Transfer of the order to the accounting department, for the reasons for deducting money from the employee's salary.
What to consider when conducting an investigation and calculating the amount of damage
When conducting an official investigation and drawing up a conclusion, the following nuances must be remembered:
- The amount of damage caused is calculated based on the residual value of the equipment or purchased goods. That is, if an employee broke a completely decommissioned computer, nothing can be recovered from him. Also, if he lost material assets, then the amount is calculated based on the purchase price, not taking into account the markup.
- Simultaneously with the recovery of material damage, disciplinary liability may be imposed on the employee in the form of a reprimand or remark.
- Lost profit cannot be included in the amount of material damage. That is, if the contract was not concluded through the fault of the employee, its amount will not be material damage. In this case, you can punish the employee only disciplinary.
When you can't withhold anything from an employee
There are four cases when the employer does not have the right to withhold material damage from the employee. They are fixed by law.
- Force majeure actions. This includes natural disasters and man-made disasters, during which the employee was unable to save property and material values.
- The conditions of normal economic risk involve the performance by the employee of his official duties and the infliction of damage in their course. For example, when introducing new technological processes and methods of work.
- Causing damage out of necessity and in self-defence. For example, when trying to apprehend a thief, an employee dropped the cash register and broke it.
- Lack of conditions necessary for the storage of material assets through the fault of the employer. For example, the employer did not provide the cashier of the enterprise with a safe where they could keep material values, or there were no bars on the windows and an alarm system in the warehouse.
If during the inspection at least one of the above circumstances is revealed, the employer loses the right to withhold material damage from the employee, at least partially.
When can you claim full damages?
The full cost of the damage caused by the employee can be withheld in the following cases:
- The employee is the head of the enterprise. Either the chief accountant or the deputy head, but on condition that an agreement on full liability has been concluded with them.
- Any other employee with whom an agreement on full liability has been concluded and who receives material values according to documents. This primarily includes a storekeeper, cashier, seller.
- An employee who received material assets one-time, but with paperwork. For example, he was given money as a sub-report.
- The employee was in a state of intoxication when causing material damage.
- The employee caused damage to the property of the enterprise not during the performance of official duties. For example, a driver after the end of the working day used a company car and crashed it.
- The employee caused the damage as a result of malicious intent.
- The employee was convicted of damage to property.
- An employee who did not have the right to disclose information protected by law.
When it is possible to contain the damage only partially
If the terms of full liability cannot be applied to the employee, but it is also impossible to get rid of it, then the damage caused will be withheld from him in part, in the amount of average earnings.
Note! The damage is not deducted in the amount of the salary for the current month, but the average earnings for the year are calculated. With some forms of remuneration, these can be completely different amounts.
Other nuances in the retention of property damage
- Even if the employer does not have the legal ability to withhold from the employee the full amount of the damage caused, the employee may agree to reimburse the entire amount.
- More than 20% cannot be deducted from an employee's earnings. In some cases, the amount can reach 50%, but only the court can make this decision.
- If the employee quit or quits during the period of the investigation, it will be possible to recover the damage in full only through the court. Of the payments due to him upon dismissal, it will be possible to withhold no more than 20%.
Only with strict observance of the entire procedure for deducting the amount of damage caused from the employee and the absence of a violation of the law, the employer can be sure that the employee will not be able to challenge the deduction in court.
You can ask your questions free of charge to our duty lawyer on labor law.
12.07.2016 04:54
In a situation where an employee dealing with material values (a seller, a cashier, a storekeeper) caused material damage to the company, simply speaking, “stealed”, the natural desire of management is to recover damages from him. But this is far from always obtained due to non-compliance with the formalities established by law. That is, the employer, of course, can withhold fromthe employee's wages the amount of damage. But if the requirements of labor legislation are not met at the same time, then the court will take the side of the employee and return to him not only the amounts withheld by the employer, but also recover the moral damage claimed by the employee (Article 237 of the Labor Code of the Russian Federation), interest for delayed wages (Article 236 Labor Code of the Russian Federation), court costs (Article 88 of the Code of Civil Procedure of the Russian Federation).
Therefore, following the law when recovering damages is very important. We offer some tips on how to recover damages from an employee so that in case of a dispute, the court is on the side of the employer.
Tip 1. Draw up an agreement on full liability when hiring
In addition to an employment contract with employees serving material assets, it is necessary to draw up an agreement on full liability. Without this agreement, it will not be possible to bring the stealing employee to full liability (see, for example, the Appeal ruling of the Samara Regional Court dated August 13, 2014 in case No. 33-7921 / 2014).
Sometimes employers go too far and enter into agreements on full liability with all employees in a row. Please note: only contracts with employees holding positions or performing work specified in Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85 will have legal significance. Accordingly, the name of the position or work performed in the employment contract must comply with this Decree.
The same Decree contains samples of agreements on full individual and collective liability. At the same time, if several employees work in the same trading floor, in the same warehouse, at the same checkout, then it is necessary to conclude an agreement on collective liability. The conclusion of an agreement on individual responsibility in this case would be a mistake.
Can an employee refuse to sign an agreement on full liability? Recall the explanations of the Plenum of the Supreme Court of the Russian Federation, given in Resolution No. 2 of March 17, 2004. This Resolution states that the employee does not have the right to refuse if the obligations for servicing material assets were established at the conclusion of the employment contract.
Also, when hiring an employee before signing an employment contract, it is necessary to carefully prescribe in the employee's job description his job duties related to the maintenance of material assets, that is, what exactly he is obliged to do with goods, money, material, other material assets.
Tip 2. Take an inventory and issue an acceptance certificate when applying for a job
Is an agreement on full liability sufficient to reasonably bring the employee to liability? The mere execution of this agreement is not enough. It is necessary to formalize the delivery of certain property to the employee (see, for example, the Appeal ruling of the Saratov Regional Court dated October 9, 2014 in case No. 33-774). Indeed, in paragraph 2 of Art. 243 of the Labor Code of the Russian Federation refers to the shortage of entrusted property.
To determine what kind of property will be handed over to the employee when changing financially responsible persons, it is necessary to conduct an inventory. The need for an inventory is directly provided for by the Order of the Ministry of Finance of Russia dated 07.29.1998 No. 34n, Methodological Instructions approved by Order of the Ministry of Finance of the Russian Federation dated 13.06.1995 No. 49. Based on the results of the inventory, the following documents must be drawn up:
Order on the establishment of an inventory commission;
An inventory order with an employee's mark of familiarization (recommended);
Inventory list;
Collation statement.
Property that was reflected in the inventory list and will be transferred from the previous financially responsible person to the next one.
To confirm this, you must issue an acceptance certificate, in which you indicate:
Specific property that is transferred to a financially responsible person (in pieces, meters, other units of measurement);
date of transfer;
Signatures of the sender and receiver.
Tip 3. Ensure the conditions for storing property
Art. 239 of the Labor Code of the Russian Federation directly indicates that it will not be possible to recover damages from an employee if the employer has not fulfilled the obligation "to ensure proper conditions for storing property entrusted to the employee." What does it mean? The employer needs to create actual barriers to material values for unauthorized persons.
For example:
Buying a safe, for storing cash,
Provision of storage facilities with locks on the doors;
Restriction of access to warehouses of unauthorized persons;
Organization of security at night in the warehouse.
In other words, if a warehouse is a “passage yard” for all employees, including those who have nothing to do with it, and the storekeeper tells about this in court along with witnesses, then it will not be possible to recover the shortage from this storekeeper (see Resolution of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 No. 52).
Tip 4: Record Damage with an Inventory
Should any damage be recorded for recovery purposes? Art. 238 of the Labor Code of the Russian Federation indicates that the damage must be direct and real, that is, a real decrease in property or deterioration in the state of property (and not losses or lost profits). For example, a cashier's lack of money in the cash register will be a direct actual loss. And if the manager missed a profitable client and “failed” to conclude an agreement for millions, this is a lost profit, this damage cannot be recovered.
To fix the shortage of financially responsible persons (that is, those with whom an agreement on full liability has been concluded) should be carried out using an inventory. Conducting an inventory is mandatory not only in a planned manner and when changing financially responsible persons, but also when facts of theft, abuse, damage to property are revealed, as well as in case of natural disasters and emergencies (clause 27 of the Order of the Ministry of Finance of Russia dated July 29, 1998 No. 34n) .
It is especially important to conduct an inventory if an employee leaves. The courts insist that the absence of an inventory does not allow determining the quantity and value of the goods, as well as at what point the shortage occurred (see, for example, the Appeal ruling of the Lipetsk Regional Court dated February 17, 2014 in case No. 33-415 / 2014). Other documents drawn up by the employer are not recognized as proper evidence, it is necessary to have inventory records both at the time of admission and at the time of dismissal of a person (see, for example, the Appeal ruling of the Rostov Regional Court dated April 22, 2013 in case No. 33-4910 / 2013 ).
The inventory must be drawn up in accordance with the Methodological Recommendations of 06/13/1995 No. 49. If the employer has violated the inventory procedure, then the documents drawn up as a result of such an inventory cannot serve as reliable evidence (see, for example, the Appellate rulings of the Supreme Court of the Republic of Mordovia dated 20.02. 2014 in case No. 33-332/2014).
Tip 5: Be sure to check for damage
Such a check is obligatory according to Art. 247 of the Labor Code of the Russian Federation. To carry out the verification, first of all, it is necessary to issue commission order.
This order must:
Indicate the basis for the creation of the commission (discovery of damage);
Describe exactly what happened;
Specify the terms of the commission;
Indicate the need to provide the results of the commission's work to the head.
What is the verification for? To then prove in court that there are grounds for bringing to liability. What exactly will have to prove- indicates Art. 233 of the Labor Code of the Russian Federation and clause 4 of the Resolution of the Plenum of the Supreme Court of November 16, 2006 No. 52:
The presence of damage (that is, something must be broken, damaged, stolen, and so on);
Commission by the employee of illegal actions (or inactions), that is, violating the norms of the law or local acts of the company;
The fault of the employee in causing such damage to the employer (intention or negligence);
The presence of a causal relationship between the actions of the employee and the damage incurred by the employer.
The most important thing in the work of the commission is the demand from the employee written explanation(Article 247 of the Labor Code of the Russian Federation). It is better to give the employee a special notice about the need to give such explanations. The term for preparing an explanation by the Labor Code of the Russian Federation by an employee is not regulated. Therefore, you can focus on Article 193 of the Labor Code of the Russian Federation, which takes two working days to submit explanations. If after this period the employee has not provided an explanation, then an act should be drawn up (Article 193 of the Labor Code of the Russian Federation).
Based on the results of the check, it is necessary to draw up act of the commission. This will be the main document for prosecution. What to indicate in the act of the commission's work, we are told by the Resolution of the Plenum of the Supreme Court of November 16, 2006 No. 52, because this will have to be proved in court. Therefore, it is better not to limit yourself to two or three sentences, but to describe the studied documents, explanations of employees in detail.
The act is signed by all members of the commission. The employee must be familiarized with the act, against signature. In case of his refusal or evasion from familiarization, an appropriate act is drawn up.
Tip 6. Collect damages out of court only if permitted by law
If the head, following the results of the audit, decided to recover damages, then it is necessary to double-check exactly how to do this legally.
Please note: the Labor Code of the Russian Federation does not oblige the employer to recover material damage from the employee. Maybe the employee is already leaving, and the management does not want to waste time and effort on proceedings ...
If the head of the company has decided to bring the employee to liability and recover damages, then such a decision must be formalized by order. In this order, you should first indicate the decision to bring the worker to liability, and the next paragraph indicate the decision to recover the material damage caused. Such an order can be made no later than one month from the date of establishing the amount of damage caused (Article 248 of the Labor Code of the Russian Federation).
The employee must be familiarized with the order against signature. If the employee refuses to get acquainted with the order to attract, then an appropriate act should be drawn up.
After that, the actions of the employer may be different depending on the situation:
1. The worker repents and agree indemnifier. Excellent! He can deposit money into the cashier or transfer it to the company's account. Sometimes employees turn to the employer with a request to recover the amount of damage from wages. At the same time, it is possible to discuss the return of the amount in installments, and if the employee leaves, it is better to draw up a written obligation to compensate for damage indicating specific payment terms (part 4 of article 248 of the Labor Code of the Russian Federation).
2. The employee does not admit his guilt and does not agree to compensate for the damage. But the amount of damage does not exceed his average monthly earnings and the period of recovery (one month from the date of establishment of the amount) has not expired. Despite the disagreement of the employee, the employer can recover the amount of damage on his own (part 1 of article 248 of the Labor Code of the Russian Federation). In this case, in the recovery order, instruct the chief accountant to withhold the damage from the employee's salary. At the same time, the penalty should not exceed 29% of the employee's monthly earnings (Article 138 of the Labor Code of the Russian Federation). Therefore, for a full recovery (if the damage is equal to the average earnings) it will take five months.
Before doing this, double-check whether all the measures indicated above have been taken? After all, an employee can go to court, and then all these events will be checked by the court. If the liability agreement was not concluded, inventories were not carried out, the check on the fact of damage was not carried out, it is hardly worth the risk - the court will take the side of the employee.
3. The employee does not agree to compensate for the damage in the amount of the average monthly salary, and the recovery period has expired. Or the employee does not agree to compensate for damage in case of damage in excess of the average monthly earnings (regardless of the timing). In this case, damages can only be recovered in court (Part 2, Article 248 of the Labor Code of the Russian Federation) within one year from the date of discovery of the damage caused (Article 392 of the Labor Code of the Russian Federation). But you will have to prepare documents for the court, since it is extremely risky to recover from an employee without a court decision in such cases. The employee is likely to go to court - and the court will confirm his case.
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To questions No. 808042., No. 809649 Liability. Hello, I cannot understand from your answers. If the fault of the employee is proven by the commission that he caused damage of 500 thousand, it turns out that all the same, the employer can, by his order, recover only once the amount of 25,000 rubles - the average salary of the employee, and what about the rest of the amount. How to issue a recovery of the full amount of damage, whether the consent of the employee must be issued or the employer collects only the average earnings in the amount of 25,000 rubles, once, and the rest through the court. or the employee pays the employer 25,000 rubles every month. until full repayment. Works for free. Thank you.
Answer
Answer to the question:
In order to understand whether the employee will bear full liability for the damage caused, it is necessary to determine whether this case applies to the cases listed in Article 243 of the Labor Code. This must be determined first. The employee can fully reimburse the amount of 500 thousand only if this is a case of full liability. Full liability does not depend on the amount, the amount can be any, for example, 5 thousand. As for the procedure for recovering damages, it is established by Article 248 of the Labor Code.
1. The employee bears full financial responsibility only in cases specified in Article 243 of the Labor Code. The list of these cases is exhaustive. The cases of full liability, firstly, include the case of full individual liability, which is borne by the employee who is hired or performs the work that is provided for by the List, approved. By Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85, an agreement on liability is concluded with him. Secondly, other employees of the organization may also bear full responsibility, but only in other cases directly established by Article 243 of the Labor Code. For example, if the damage was caused while intoxicated or intentionally.
Your employee is not initially classified as a responsible employee under Bylaw No. 85. Therefore, in order to understand the full or limited responsibility of the employee, you need to conduct a case check. And only if this is one of the cases of full liability established by Article 243 of the Labor Code, then yes, you can recover the full amount of 500 thousand in it. For this, an audit is carried out in accordance with the requirements of Article 247 of the Labor Code. And this can only be done in court.
If the amount of material damage can be established on the basis of documents received from counterparties, the commission may not be created. For example, in the event of an accident due to the fault of an employee, the amount of material damage can be established from documents received from insurance and repair companies.
The fact that an employee caused damage to the property of the organization should be recorded in a separate act. The current legislation does not oblige the employer to draw up such an act. Nevertheless, a document drawn up in a timely manner will allow you to record the fact of damage, establish an approximate or exact amount and subsequently confirm it. The form of the act is not fixed by regulatory documents, so it can be drawn up in.
Determine the amount of damage at market prices on the day the damage was caused (commitment by an employee of an accident, detection of a shortage, etc.) operating in a given area. In this case, the damage cannot be assessed below the value of the property according to accounting data (taking into account depreciation). This procedure is established by the Labor Code of the Russian Federation.
Any direct effective damage caused to the employer can be recovered from the guilty employee. Namely:
- the amount of material damage;
- expenses for the acquisition or restoration of property (for example, repairs);
- expenses for compensation for damage that the employee caused to other citizens or organizations (for example, damage from an accident in the part not covered by insurance compensation).
If the amount of damage exceeds the monthly salary or the monthly deadline for issuing a penalty is missed, then compensation for damage is possible either voluntarily (with the consent of the employee) or through the courts.
Voluntarily, an employee can compensate for the damage either in full or in part. In this case, by agreement of the parties, compensation for damage with installment payment is allowed. In this case, the employee must submit to the employer indicating the specific terms of payments. If in the future the employee decides to quit and refuses to reimburse the remaining amount of damage, then the outstanding debt can be recovered in the general manner - through the courts.
It should be noted that with the consent of the employer, the employee can compensate for damage not only in money: he can also transfer equivalent property as repayment or undertake to repair the damaged one.
Compensation for damage is made regardless of bringing the employee to disciplinary, administrative or criminal liability for actions (inaction) that caused damage.
Question from practice: how to determine the average monthly earnings when calculating the amount of material damage that can be withheld from an employee's income
The legislation does not provide a methodology for calculating the average monthly earnings. For all cases of maintaining average earnings, a single procedure for its calculation is established based on the average daily (hourly) earnings (). Therefore, when calculating the amount of material damage, it is necessary to use it. The various names that are used in determining the amount of payments cannot serve as a basis for using any other procedure.
The cost of damages withheld from an employee's income should not exceed his average monthly earnings (). In this case, the average monthly earnings should be calculated on the basis of the average daily (hourly) earnings and working days (hours) during the month in which the material damage was discovered (, clause and Regulation, approved).
An example of calculating the material damage recovered from an employee. The contract on full liability with the employee is not concluded
In January, through the fault of employee A.S. Kondratieff's printer failed. The employee has limited liability.
The amount of material damage is estimated at 12,000 rubles.
The average daily earnings of Kondratiev is 900 rubles / day. January has 17 working days.
The average monthly earnings of Kondratiev in January amounted to 15,300 rubles. (900 rubles/day × 17 days).
Since the average monthly salary is more than the amount of damage, 12,000 rubles are withheld from Kondratiev by order of the head. Moreover, from each of his salaries - no more than 20 percent.
An example of calculating the material damage recovered from an employee. An agreement on full liability with an employee is concluded
The organization revealed a shortage of money in the cash desk in the amount of 52,000 rubles. With cashier A.V. Dezhneva concluded an agreement on full liability. She pleaded guilty.
Dezhneva's average earnings in the month when a shortage was discovered is 10,000 rubles. Since the average earnings are less than the amount of damage, 10,000 rubles are withheld from Dezhneva by order of the head. Moreover, from each of her salaries - no more than 20 percent.
For five months, the accountant withheld 2,000 rubles from Dezhneva's salary. Dezhneva refused to reimburse the rest of the damage and quit. The organization went to court to recover the funds.
An example of calculating an employee's salary, taking into account deductions within his average earnings
On January 12, 2013, through the fault of employee A.S. Kondratieff's printer failed. The employee has not signed an agreement on full liability.
The amount of material damage is estimated at 10,000 rubles.
For the period from January to December 2012, Kondratiev worked 250 days. During this period, he was credited with 200,000 rubles.
In January 2013, 17 business days.
The average salary of Kondratiev for the month in which material damage was caused (January 2013) is:
200 000 rub. : 250 days × 17 days = 13,600 rubles.
Since the amount of material damage does not exceed the average salary of Kondratiev, all 10,000 rubles can be withheld from his income.
In January 2013, Kondratiev received a salary in the amount of 15,000 rubles. Kondratiev is provided with a standard tax deduction for personal income tax in the amount of 400 rubles. (Kondratiev has no children).
The amount of personal income tax for January 2013 is:
(15,000 rubles - 400 rubles) × 13% \u003d 1898 rubles.
The employee's income after tax is:
15 000 rub. - 1898 rubles. = 13,102 rubles.
The maximum amount of deductions from an employee's monthly income is:
RUB 13,102 × 20% = 2620 rubles.
The amount of damage caused by the employee is more than this amount. However, in January, the accountant withheld only 2,620 rubles from Kondratiev's salary. The remaining 7380 rubles. (10,000 rubles - 2620 rubles) the organization will withhold from the employee's salary in the following months.
Question from practice: who will compensate for the damage in an accident, the culprit of which is recognized as an employee of the organization
Damage in an accident that an employee caused to third parties (in excess of compensation under OSAGO), reimburse at the expense of the organization (). In this case, the employee who caused the damage is obliged to compensate such expenses in full ().
The employee must pay:
- the amount that the organization transferred to the injured party in excess of the reimbursement for OSAGO;
- the cost of repairing the organization's car (if the organization did not conclude a voluntary property insurance contract or the insurance did not fully cover the repair costs).
However, by decision of the head of the organization, the employee may not fully or partially compensate for the damage caused to him ().
An example of calculating the material damage caused by an employee in an accident. The employee compensates for the damage caused in full
Organization driver Yu.I. Kolesov became the culprit of the accident.
The damage caused amounted to 130,000 rubles. The insurance payment to the injured party under OSAGO amounted to 120,000 rubles. Repair of their own car cost the organization 35,000 rubles. The organization did not carry out voluntary property insurance.
The amount of material damage that the employee is obliged to compensate the organization is:
RUB 130,000 - 120,000 rubles. + 35 000 rub. = 45,000 rubles.
Question from practice: is it possible to withhold the amount of material damage from compensation payments to an employee for the use of his personal property and from daily allowances
The answer to this question depends on the employee's consent to the hold. At the initiative of the organization, it is impossible to withhold the amount of material damage from such payments. This conclusion can be drawn on the basis of the Labor Code of the Russian Federation. It says that deductions at the initiative of the organization should be made from the salary. Compensation payments (per diem, compensation for the use of personal property) guaranteed by the Labor Code of the Russian Federation (Article and Labor Code of the Russian Federation) do not apply to wages (). At the same time, the labor legislation does not establish any restrictions on deductions that the organization makes not on its own initiative, but at the request of the employee. Therefore, if there is such a statement, it is possible to deduct the amount of material damage from any payments.
If the employee does not agree to the hold, proceed as follows. Invite him to voluntarily compensate for the amount of material damage in excess of his average monthly earnings. He can:
- deposit the required amount into the cashier;
- with the consent of the organization, provide it with property equivalent to the damaged one (repair the damaged property);
- pay damages with installment payment.
This procedure is provided for by the Labor Code of the Russian Federation.
If the employee refused to voluntarily compensate for the damage or did not agree with his assessment, then you will have to go to court to pay off the loss. You will also have to apply to the court if the withholding order was issued later than a month after determining the amount of damage ().
At the same time, the organization has the right to fully or partially
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Labor relations are largely based on the employer's trust in the employee. The staff is provided with the necessary tools and equipment, often of high material value (for example, office equipment). In some cases, the employee is given large sums of money on account, for the safety or strict targeted use of which he is responsible. In case of loss, damage or shortage of property entrusted to an employee, the organization has the right to legally recover damages from the perpetrator.
Anastasia Morgunova, director of the tax consulting department of the My Business online accounting, explains how to correctly record the fact of causing harm, establish its size and investigate the circumstances under which it arose.
Under what conditions does the employee's liability to the employer arise?
Occurs when the following conditions are present:
- causing direct actual harm. Confirmation of the fact of damage is, for example, an act on the discovery of damage caused by an employee, an explanatory note from an employee on the fact of causing damage, inventory materials and other evidence.
(in particular, the damaged property itself);
- illegality of actions or employee inaction. For example, damage arose as a result of the fact that the employee did not fulfill his obligations established by the employment contract, job description, internal labor regulations and other local acts of the organization;
- causality between the illegal actions or inaction of the employee and the resulting direct actual damage. The causal relationship should be obvious. For example, an employee dropped a computer on the floor, which then stopped working;
- employee's fault in damage to the employer. Guilt is understood as intent or negligence (frivolity, negligence) in the actions of the employee, which led to
cause damage to the employer.
Confirmation: Part 1 of Art. 233 of the Labor Code of the Russian Federation, paragraph 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 52 of November 16, 2006, letter of Rostrud No. 1746-6-1 of October 19, 2006
Comment:When establishing the guilt of an employee, it is necessary to find out whether he could have acted differently in this situation, whether he had the opportunity to avoid material losses. There are circumstances that completely exclude the guilt of the person who caused the damage (unless, of course, he can confirm their presence with sufficient evidence). This is an emergency, force majeure, normal economic risk, necessary defense, as well as the failure of the employer to ensure proper conditions for storing property. The Labor Code of the Russian Federation, mentioning these concepts in Art. 239 does not reveal their essence. I believe that in this case it is necessary to be guided by other regulatory legal acts, in particular, Art. 401 of the Civil Code of the Russian Federation, art. 37, 39 of the Criminal Code of the Russian Federation, Art. 2.7 of the Code of Administrative Offenses of the Russian Federation. par. 2 p. 5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 52 of November 16, 2006. On the websitewww.moedelo.org you can learn from practical examples how to apply the above concepts to labor relations.
What is the liability of the employee to the employer?
The responsibility of the employee is the obligation to compensate for the direct actual damage caused to the employer (losses that can be accurately calculated). In this case, the employer is not entitled to recover lost income (lost profit) from the employee.
Direct actual damage means (in aggregate):
Real decrease in the employer's cash property or deterioration of its condition
(including the property of third parties held by the employer, if he is responsible for its safety);
The need for the employer to incur costs or excess payments for the acquisition, restoration of property or for compensation for damage caused by the employee to third parties.
For example, direct actual damage can include:
Lack of monetary or property values;
Damage to materials and equipment;
Expenses for the repair of damaged property;
Payments for forced absenteeism or downtime;
The amount of the fine paid, which is applied to the employer through the fault of the employee.
Damage caused by an employee to third parties means all amounts paid by the employer to third parties in compensation for damage. In this case, the employee can be held liable only within the limits of these amounts and provided that there is a causal relationship between his guilty actions (inaction) and causing damage to third parties.
Confirmation: Part 1, 2 Art. 238 of the Labor Code of the Russian Federation, paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 52 of November 16, 2006, letter of Rostrud No. 1746-6-1 of October 19, 2006
To what extent must the employee compensate for the damage caused?
The employee must compensate for the damage either in the amount of his average monthly earnings, or in full. It depends on what financial responsibility is assigned to the employee.
As a general rule, an employee is limited liability for the damage caused - within the limits of their average monthly earnings (Article 241 of the Labor Code of the Russian Federation). But in some cases, it may be assigned full liability, that is, the obligation to compensate the damage caused to the employer in full (Article 242 of the Labor Code of the Russian Federation).
Cases of full liability are listed in Art. 243 of the Labor Code of the Russian Federation. For example, it may be assigned to an employee in accordance with the Labor Code of the Russian Federation or federal laws. So, in accordance with Art. 277 of the Labor Code of the Russian Federation, the head of the organization bears full liability for damage caused to the employer.
In addition, the employee bears full financial responsibility if he caused damage as a result of a crime, an administrative offense, being in a state of intoxication, having the intent to harm the employer, and in some other cases.
Such liability also arises in the case when the employee was entrusted with valuables under an agreement on full liability concluded with him individually or as part of a team (team), or he received them under a one-time document (power of attorney). It should be remembered that an agreement on full liability can only be concluded with an adult employee (over 18 years old).
Confirmation: art. 2439-245 of the Labor Code of the Russian Federation, paragraphs 9-12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 52 of November 16, 2006
Comment:Employers sometimes consider the conclusion of an agreement on full liability as a "panacea for all ills." Some even offer to sign such a document to all, without exception, employees admitted to the organization. However, it should be noted that agreements on full liability can be concluded only with employees whose positions (works) are included in the Lists, approved. Decree of the Ministry of Labor of Russia No. 85 dated December 31, 2002 (by financially responsible persons). In other cases, the existence of such agreements is not justified - they will not have legal force. This is clearly demonstrated by case law.
Several employers tried to recover from the employees through the court the damage caused in full, however, compensation for damage was recognized as legal only in the amount of the average monthly earnings of the defendants. The fact is that agreements on full liability were illegally concluded with employees who did not fall under the above lists (a specialist in the production department and a watchman). These workers were not directly involved in the maintenance or use of monetary, commodity values or other property. The court indicated that these lists of positions (works) are exhaustive and are not subject to broad interpretation (Ruling of the Supreme Court of the Russian Federation No. 18-В09-72 of November 19, 2009, Ruling of the Moscow City Court No. 33-19538 of June 24, 2011, Definition of the Primorsky Regional Court No. 33-2124 of March 29, 2010).
How to determine the amount of material damage (losses) caused by an employee?
Determine the amount you need (as a general rule) based on market prices for property which has suffered damage. They must be valid on the day the damage was caused (for example, on the day a shortage of one or another property was discovered). In this case, the amount of material damage cannot be lower than the value of the property according to accounting data (taking into account its wear and tear).
Confirmation: Part 1 of Art. 246 of the Labor Code of the Russian Federation.
At the same time, separate normative acts may establish a different procedure for determining the amount of material damage. For example, for theft or shortage of narcotic drugs, psychotropic substances, the employee is liable in the amount of 100 times the amount of direct actual damage caused to the organization (clause 6, article 59 of Federal Law No. 3-FZ of January 8, 1998).
Confirmation: art. 238, part 2 of Art. 246 of the Labor Code of the Russian Federation.
How to confirm the amount of material damage (losses)?
It is necessary to confirm the amount before making a decision on compensation for material damage (losses) by the employee. The procedure for confirming the amount depends on the type of material damage caused.
As a general rule, in order to establish the amount of damage (losses) caused and the reasons for its occurrence, the employer must to inspect. For this, the organization has the right to create a special commission with the involvement of the necessary specialists (part 1 of article 247 of the Labor Code of the Russian Federation). For example, such a check is necessary if the damage occurred as a result of a necessary defense. In this case, the material liability of the employee is completely excluded (Article 239 of the Labor Code of the Russian Federation).
If facts of theft, abuse or damage to property are revealed, the above verification is carried out in the form inventory(Clause 2, Article 12 of Federal Law No. 129-FZ of November 21
1996). Its results must be indicated in the collation sheet (forms No. INV-18 or No. INV-19).
Confirmation: clause 4.1 of the Guidelines, approved. Order of the Ministry of Finance of Russia No. 49 dated June 13, 1995
The amount of material damage received as a result of an accident that occurred through the fault of an employee can be established without an internal audit. This is due to the fact that the rationale for the causes of material damage and its amount can be:
Documents received from the traffic police on the fact of the accident (as confirming the cause of the damage);
Documents obtained from repair and insurance companies (confirming the amount of damage caused by the guilty worker).
After the amount of material damage is determined, the organization needs to demand from the employee a written explanation of the reasons for the damage. In case of refusal (evasion) of the employee from providing such an explanation, an act must be drawn up.
Confirmation: part 2 of Art. 247 of the Labor Code of the Russian Federation.
How to reflect in accounting the shortage that arose through the fault of the financially responsible person (other guilty persons) and was identified as a result of the inventory?
It is necessary to reflect the identified shortage (taken into account after the inventory on the debit of account 94 “Shortages and losses from damage to valuables”) as a mutual settlement with a financially responsible employee (another person) recognized as the culprit.
The wiring in this case will be as follows:
DEBIT 73-2 (76-2) CREDIT 94
The repayment of the debt for the shortage by the employee (other guilty person) is reflected.
The market value of the property, which is reimbursed by the guilty person, may exceed the value at which the property is reflected in the accounting. In this case, the organization must make the following entries:
DEBIT 73-2 (76-2) CREDIT 94
The shortage in the amount of the value at which the property is reflected in the accounting was charged at the expense of the financially responsible person (other guilty person);
DEBIT 73-2 (76-2) CREDIT 98-4
The difference between the amount to be recovered from the guilty person and the value at which the property is recorded is reflected.
As the funds due from him are recovered from the guilty person, the specified amount is written off to the composition of other income in proportion to the repaid debt:
DEBIT 50 (51, 70) CREDIT 73-2 (76-2)
The repayment of the debt for the shortage by the employee (other guilty person) is reflected;
DEBIT 98-4 CREDIT 91-1
The difference between the amount to be recovered from the guilty person and the value of the missing valuables as part of other income is reflected.
If the shortage that arose due to the fault of the financially responsible person (other guilty persons) was identified in the reporting period, but relates to previous reporting periods, then it must be taken into account as part of deferred income:
DEBIT 94 CREDIT 98
Reflected shortage related to past periods, but identified in the reporting period;
DEBIT 73-2 (76-2) CREDIT 94
The shortage identified in the reporting period, but related to past periods, was attributed to the financially responsible person (other guilty person).
As the amounts due from him are recovered from the guilty person, the shortage is written off as other income:
DEBIT 98 CREDIT 91-1
The shortfall revealed in the reporting period, but relating to previous periods, is reflected in the composition of income.
The guilt of the financially responsible person (other guilty persons) must be documented. Supporting documents may be a decision of the investigating or judicial authorities, a conclusion on the fact of damage to valuables, which is issued by the technical control department or the relevant specialized organizations (quality inspections, etc.).
Confirmation: clauses 5.1, 5.2 of the Guidelines, approved. Order of the Ministry of Finance of Russia No. 49 dated June 13, 1995, Instructions for the Chart of Accounts.
Also on the website www.moedelo.org you will find the necessary accounting entries in order to reflect:
Withholding material damage caused to the organization from the employee's salary;
Accountable amounts not returned on time, issued to the employee for the performance of a job assignment, as well as withholding such amounts from the employee's salary;
Lack of property that belongs to the organization, but is not listed on balance sheets, if the reason for the shortage is the fault of the employee (financially responsible or other guilty person), and others.
What is the maximum amount of deductions for material damages from an employee's salary?
The maximum amount of withholding amounts of material damage from an employee should not exceed his average monthly earnings (part 1 of article 248 of the Labor Code of the Russian Federation).
At the same time, no more than 20 percent can be withheld from the monthly salary of an employee (part 1 of article 138 of the Labor Code of the Russian Federation).
The amount of damage that exceeds the average monthly earnings of an employee (when brought to full liability), if the perpetrator does not agree to compensate it voluntarily, can be recovered from him only through the court (part 2 of article 248 of the Labor Code of the Russian Federation).
The employee can voluntarily compensate for the damage caused by him (both with limited and with full liability). In this case, by agreement of the parties, compensation for damage by installments is allowed. In addition, the employee must submit to the employer a written obligation to compensate for damage, in which it is necessary to indicate the specific terms of payments (part 4 of article 248 of the Labor Code of the Russian Federation).
The employer can confirm his consent to installment payment:
Either a permissive inscription (for example, “I do not mind” or “allow”) on the written obligation of the employee;
Or a separate administrative document in which the procedure for settlements will be prescribed (for example, an order, an order).
If the employee gave a written obligation to compensate for material damage, and then quit and refused to pay the debt, the outstanding debt can only be recovered through the courts.
Confirmation: part 4 of Art. 248 of the Labor Code of the Russian Federation.