Withholding material damage from an employee upon dismissal. How to withhold from the salary material damage caused to the organization? Deduction for damage caused by the employee
Article No. 15 of the Civil Code of the Russian Federation states that every citizen of Russia or another state, as well as any legal entity, has the right to receive monetary compensation for material damage caused.
The concept of "damage" combines two components:
real loss - loss or partial damage to personal property; lost profit - the inability to receive income due to the fault of the defendant.
The amount of compensation can be full or partial. It depends on a number of factors.
So, partial compensation of losses takes place if the damage is committed by minors or incapacitated persons. Another case of partial cash payment is the presence of an insurance policy in favor of the injured person.
What is the compensation procedure for material damage?
Compensation for property damage is the obligation of the party that, through its actions (or inaction), caused a loss to the injured party.
The rules and procedure for the procedure for paying compensation are enshrined in the legislation of the Russian Federation.
Compensation for the damage caused is possible both by mutual agreement and by filing a claim-application in court.
There are general rules of jurisdiction:
if the value of the claim is less than 50,000 rubles, then the claim is filed with the world court; if the value of the claim is more than 50,000 rubles - with the district court.
Steps to take before applying about compensation for material damage:
it is necessary to provide evidence of the fact of causing harm; it is necessary to prove the existence of a causal relationship between the action (or inaction) of the defendant and the negative consequences.
This procedure is valid for those cases when material losses were incurred as a result of the actions of an individual.
If the defendant is a legal entity or an entrepreneur, then only proof of the fact of causing damage is sufficient.
The next step is to file a claim., which will become the basis for consideration of the case for the purpose of payment of compensation.
The application is sent to a court of general jurisdiction if the victim is an individual, and to an arbitration court when resolving corporate disputes between legal entities or entrepreneurs.
General procedure for damages
If the relations regulated by the contract have been established between the parties involved in the case of causing property damage, then the payment of losses should also occur based on certain clauses of the relevant contract.
Read here what is an employment contract and what is its main difference from an employment contract.
A special case of contractual relations is the relationship between the employee and the employer. These relations are regulated by the Labor Code.
Compensation of losses by the employee occurs after the discovery of the damage caused. The employer must conduct an audit to clarify the circumstances of the employee's involvement in the fact of causing damage.
order compensation provides for the possibility of voluntary repayment of the loss at a time or in installments.
If the employee refuses to pay compensation voluntarily, the employer has the right to recover through a judicial procedure. The statute of limitations in this case is 1 year from the date of discovery of the damage.
It happens that material damage is inflicted on the employee by the employer. In this case, the obligation for compensation of material damage to the employee is fully borne by the employer. In case of violation of the term for payment of monetary rewards (salary, bonuses, etc.), the amount is calculated taking into account interest for the delay period.
Indemnification of claims within the framework of non-contractual relations is regulated either by agreement of the parties, or in court.
Judgment can be made only on the basis of the filed statement of claim of the victim. The claim is sent to the court by mail or delivered to the reception of the court.
The term for compensation for material damage is established by the legislation of the Russian Federation and is 3 years from the onset of the event, as a result of which the damage occurred.
How to write an application correctly?
When writing a claim, it is worth remembering that all claims related to damages must be substantiated and confirmed.
The application must be made in writing and comply with the requirements prescribed in Article 131 of the Civil Code of the Russian Federation.
The application must include the following information:
the official name of the court to which the document is submitted; last name, first name, patronymic of the plaintiff (in full), address of residence. If the applicant performs all actions through a trustee, then all the details of the intermediary must be indicated; all personal information about the defendant, if it is an individual. Location of the organization, if claims are made to a legal entity; description of the essence of the damage caused, the exact date, place and circumstances that caused material damage; evidence of the circumstances on the basis of which, according to the plaintiff, the loss was caused; the amount of compensation for material damage; description of actions the applicant on attempts to resolve the conflict out of court; a list of documents attached to the application; the handwritten signature of the plaintiff or his authorized representative. Article 132 of the Civil Code of the Russian Federation provides for the following documents to be attached to the claim: copies of the statement of claim in an amount equal to the number of defendants; a receipt confirming payment of the state duty; documents evidencing the loss; calculations for compensation for material damage (original and copies according to the number of defendants); a power of attorney to represent the interests of the plaintiff if the plaintiff does not represent your claim in person.
The procedure for calculating and determining the amount of material losses
The most common types of damage caused:
bay of living space; accident; fire in an apartment (house); poor-quality performance of works (services); lack of alimony payments and urgent payments.
The damage calculation depends on on the specific circumstances and the claims put forward by the plaintiff:
the price of a claim for the recovery of the amount of money borrowed is this amount plus additional charges (interest, penalties, etc.), if it was specified in the loan agreement; when assessing the damage caused to real estate, a certificate of inventory value is required object. Compensation is calculated based on this amount; when determining the price of a claim for payments (alimony, urgent payments, etc.), material damage is calculated individually. For the recovery of alimony, damage is calculated for 1 year. For urgent payments - according to the totality of expected payments, but not more than 3 years.
If the plaintiff is mistaken in the amount of the amount of money presented for payment, then the judge has the right to determine this amount independently.
Terms of reimbursement
The limitation period for compensation for material damages is 3 years since the occurrence of the event that caused the damage.
This rule does not apply in case of harm to human life and health.
In the case of pre-trial settlement of material conflicts between the employee and the employer, the terms for payment of compensation are agreed upon by mutual agreement of both parties.
It can be a one-time payment or an installment payment. In any case, an additional agreement is drawn up, which specifies the date of repayment of the debt.
If there is a judicial resolution of the conflict to compensate for the damage caused, then the terms of payments will be determined in the court decision. It is controlled by the bailiffs.
Features of compensation for damage caused by a crime
The main feature is the fact that there is no need to single out a claim for compensation for material damage caused by a crime in a separate case. It can be filed as part of the criminal process.
The statute of limitations does not begin from the moment the crime was committed, but from the moment the harm was discovered by the victims, and lasts 3 years.
Guilty of committing a crime and causing damage pays compensation from his earnings for the time spent in prison or colony.
The amount payable, but not yet paid, is indexed depending on the change in the cost of living in the country.
Increasing the legal literacy of the population in a general context, and in matters of collecting compensation for material damage, in particular, leads to a civilized solution of any conflicts that arise between individuals and legal entities.
In what cases the employer has the right to bring the employee to full liability? This issue became relevant due to the fact that on December 8, 2017, amendments to Federal Law No. 359-FZ of November 27, 2017 “On Amendments to Articles 242 and 243 of the Labor Code of the Russian Federation” (hereinafter referred to as Federal Law No. 359- FZ), which replaced the concept of "administrative offense" with the concept of "administrative offense". In this regard, employers will not be able to bring to full liability employees who have committed violations for which administrative liability is not provided.
On bringing to full financial responsibility.
The limits of the employee's liability are defined in Art. 241 of the Labor Code of the Russian Federation: for the damage caused, the employee is liable within the limits of his average monthly earnings. At the same time, this article contains a clarification: unless otherwise provided by the Labor Code of the Russian Federation or other federal laws.
So, according to Art. 242 of the Labor Code of the Russian Federation, the full liability of the employee consists in his obligation to compensate the direct actual damage caused to the employer in full. At the same time, material liability in the full amount of the damage caused can be assigned to the employee only in cases provided for by law.
Note
According to the Plenum of the Supreme Court of the Russian Federation, set out in paragraph 15 of Resolution No. 52 of November 16, 2006 “On the application by the courts of legislation governing the material liability of employees for damage caused to the employer” (hereinafter referred to as Resolution of the Plenum of the Supreme Court of the Russian Federation No. 52), when determining the amount to be recovery, it should be borne in mind that, by virtue of Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate only for direct actual damage caused to the employer, which means a real decrease in the employer’s cash property or deterioration in the condition of the specified property (including the property of third parties held by the employer, if he is responsible for the safety of this property), as well as the need for the employer to incur costs or excessive payments for the acquisition or restoration of property or compensation for damage caused by the employee to third parties.
Cases of full liability are listed in Art. 243 of the Labor Code of the Russian Federation.
Cases of full liability |
Cases when, in accordance with the Labor Code of the Russian Federation or other federal laws, the employee is held liable in full for damage caused to the employer in the performance of labor duties by the employee* |
Lack of valuables entrusted to the employee on the basis of a special written agreement or received by him under a one-time document |
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Intentional damage |
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Causing damage in a state of alcoholic, narcotic or other toxic intoxication |
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Causing damage as a result of criminal actions of an employee established by a court verdict |
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Causing damage as a result of an administrative offense, if such is established by the relevant state body (as amended by Federal Law No.359-FZ) |
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Disclosure of information constituting a legally protected secret (state, official, commercial or other), in cases provided for by federal laws |
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Causing damage not in the performance of work duties by the employee |
* Decree of the Ministry of Labor of the Russian Federation of December 31, 2002 No. 85 approved the lists of positions and works replaced and performed by employees with whom the employer can conclude written agreements on full individual or collective (team) liability, as well as standard forms of contracts on full liability.
In practice, a situation is quite common when, while performing their work duties, an employee on a company car gets into an accident. If an administrative offense case was not initiated against the driver on the fact of an accident, the traffic police did not draw up a protocol on an administrative offense, and also taking into account the fact that the law does not provide for the conclusion of an agreement on full liability with the driver, the employee can be held liable within his average monthly salary (Appeal ruling of the Supreme Court of the Republic of Bashkortostan dated December 23, 2014 No. 33 18267/2014).
In the Appellate Ruling of the Saratov Regional Court dated June 18, 2013 No. 33 3586, it is noted that the establishment of the fact that an employee violated the rules of the road of the Russian Federation is not a sufficient basis for recovering from him the damage caused in full. If administrative liability is not provided for the committed violation, the employee must be liable for the damage caused within the limits of his average monthly earnings.
When bringing employees to full financial responsibility, it should be remembered that:
employees under the age of 18 bear full financial responsibility only for intentionally causing damage, causing damage while under the influence of alcohol, drugs or other toxic intoxication, as well as as a result of committing a crime or administrative offense;
liability in the full amount of the damage caused to the employer can be established by an employment contract concluded with the deputy head of the organization, the chief accountant;
the head of the organization bears full liability for direct actual damage caused to the organization (Article 277 of the Labor Code of the Russian Federation). In cases stipulated by federal laws, the head of an organization shall compensate the organization for losses caused by his guilty actions. In this case, the calculation of losses is carried out in accordance with the norms provided for by civil law (Article 15 of the Civil Code of the Russian Federation).
The ruling of the St. Petersburg City Court dated 03.11.2011 No. 33 16427/2011 contains the conclusion that liability can be applied to an employee if four conditions are simultaneously met:
the presence of direct actual damage;
unlawful behavior of the employee;
the presence of the employee's fault in causing damage;
the existence of a causal relationship between the unlawful behavior of the employee (action or inaction) and the resulting damage.
Administrative misconduct or administrative offense.
As noted, the amendments to Federal Law No. 359-FZ led to the replacement in Art. 242 and 243 of the Labor Code of the Russian Federation of the concept of "administrative offense" to the concept of "administrative offense".
According to Part 1 of Art. 2.1 of the Code of Administrative Offenses of the Russian Federation, an administrative offense is an unlawful, guilty action (inaction) of an individual or legal entity, for which the Code of Administrative Offenses of the Russian Federation or the laws of the constituent entities of the Russian Federation on administrative offenses establish administrative responsibility.
An administrative offense is recognized as committed (Article 2.2 of the Code of Administrative Offenses of the Russian Federation):
intentionally, if the person who committed it was aware of the unlawful nature of his action (inaction), foresaw its harmful consequences and desired the onset of such consequences or knowingly allowed them or treated them indifferently (Part 1);
by negligence, if the person who committed it foresaw the possibility of the occurrence of harmful consequences of his action (inaction), but without sufficient grounds presumptuously counted on preventing such consequences or did not foresee the possibility of their occurrence, although he should have and could have foreseen them (Part 2).
The types of decisions and rulings in the case of an administrative offense are listed in Art. 29.9 of the Code of Administrative Offenses of the Russian Federation. Based on the results of the consideration of a case on an administrative offense, a decision may be issued:
on the termination of proceedings in the case of an administrative offense. Cases when decisions are made to terminate proceedings in a case of an administrative offense are established in Part 1.1 of Art. 29.9 of the Code of Administrative Offenses of the Russian Federation.
As for administrative misconduct, the Code of Administrative Offenses of the Russian Federation does not contain such a concept.
In the Labor Code, we are faced with disciplinary and immoral offenses. At the same time, a disciplinary offense means non-fulfillment or improper fulfillment by an employee through his fault of the labor duties assigned to him. For committing such a misconduct, the employer has the right to apply the following disciplinary sanctions to him:
3) on relevant grounds.
It should be noted that earlier judicial practice developed in such a way that an administrative offense was understood precisely as an offense provided for by the Code of Administrative Offenses of the Russian Federation.
Paragraph 12 of Resolution No. 52 of the Plenum of the Supreme Court of the Russian Federation contains the following clarification: in accordance with paragraph 6 of Part 1 of Art. 243 of the Labor Code of the Russian Federation, material liability in the full amount of the damage caused can be assigned to the employee if he causes damage as a result of an administrative offense, if such is established by the relevant state body. With this in mind, the employee may be held fully liable if, as a result of the consideration of the case of an administrative offense by a judge, body, official authorized to consider cases of administrative offenses, a decision was made to impose an administrative penalty (clause 1, paragraph 1, part 1 article 29.9 of the Code of Administrative Offenses of the Russian Federation), since in this case the fact of an administrative offense committed by a person has been established.
If an employee was released from administrative responsibility for committing an administrative offense due to its insignificance, about which, based on the results of the consideration of the case on an administrative offense, a decision was made to terminate the proceedings on the case, and an oral remark was announced to the employee, he may also be held liable in the full amount of the damage caused, since with the insignificance of an administrative offense, the fact of its commission is established, all signs of the offense are revealed and the person is released only from administrative punishment (Article 2.9, clause 2, paragraph 2, part 1, article 29.9 of the Code of Administrative Offenses of the Russian Federation).
Note
The expiration of the statute of limitations for bringing to administrative responsibility or the issuance of an amnesty act, if such an act eliminates the application of an administrative penalty, is an unconditional basis excluding proceedings in a case of an administrative offense (clauses 4, 6 of article 24.5 of the Code of Administrative Offenses of the Russian Federation), in these situations, the employee does not may be brought to full liability under paragraph 6 h. 1 Article. 243 of the Labor Code of the Russian Federation, however, this does not exclude the right of the employer to demand full compensation for damage from this employee on other grounds. If these grounds are absent, the employer can bring the employee only to limited liability, that is, within the limits of his average monthly earnings.
Recall that Art. 238 of the Labor Code of the Russian Federation allows you to demand compensation from an employee for direct actual damage. This is possible, for example, in case of damage to the organization's property. In such a situation, she will not have a protocol on the imposition of an administrative penalty or other document from the departments, and to prove the guilt of the employee, an internal audit must be carried out.
Rostrud in Letter No. 1746 6 1 dated October 19, 2006 clarified that direct actual damage can include, for example, a shortage of monetary or property values, damage to materials and equipment, incurring expenses for repairing damaged property, making payments for forced absenteeism or downtime , payment of a fine.
In order to bring an employee to full liability, in addition to general personnel documents confirming the employee’s guilt, it is also necessary to have documents confirming the damage to the organization. For example, when damage was caused as a result of an accident, such documents are a certificate of participation in an accident, a protocol on an administrative offense and a decision on bringing to administrative responsibility, which reflect the place and time of the accident, the data of the driver through whose fault it occurred.
Note
The total amount of all deductions for each payment of wages cannot exceed 20%, and in some cases provided for by law, 50% of the wages due to the employee (Article 138 of the Labor Code of the Russian Federation).
The procedure for compensation by an employee for harm caused |
Establishing the amount of damage caused by the employee. As a general rule, the amount of damage is determined by actual losses calculated on the basis of market prices in force in a particular area on the day the damage was caused, but not lower than the value of property according to accounting data, taking into account the degree of depreciation of this property ( Art. 246 of the Labor Code of the Russian Federation) |
Carrying out an audit to determine the amount of damage caused and the reasons for its occurrence. The employer can create an appropriate commission for these purposes. |
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Requesting a written explanation from the employee to establish the causes of damage. In case of refusal or evasion of the employee to provide the specified explanation, an appropriate act is drawn up |
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Registration of an act based on the results of the investigation (with the attachment of all necessary documents). The employee has the right to get acquainted with all the materials of the audit and appeal them in the manner established by the Labor Code of the Russian Federation ( Art. 247 of the Labor Code of the Russian Federation) |
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Issuance of an order (order) to recover the damage caused from the employee's salary, if the amount of damage caused does not exceed his average monthly salary. An order to enforce recovery may be made no later than one month from the date of the final determination by the employer of the amount of damage caused by the employee ( Art. 248 of the Labor Code of the Russian Federation) |
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Filing a claim with the court for the recovery of damages (if the one-month period for pre-trial recovery has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer, and the amount of damage to be recovered from the employee exceeds his average monthly earnings) ( Art. 248 of the Labor Code of the Russian Federation). The employee may voluntarily compensate the employer for the damage in whole or in part. By agreement of the parties to the employment contract, compensation for damage is allowed with an installment payment or by transferring property of equal value or repairing damaged property |
You can recover damages from an employee only for an administrative offense. The previously valid norm spoke about the possibility of recovering damages for an administrative offense. This wording contradicted the Code of Administrative Offenses of the Russian Federation, while the employer had reason to demand compensation from employees for any violations that were not even related to administrative ones. At the same time, judicial practice and before the amendments to Art. 242, 243 of the Labor Code of the Russian Federation confirmed that it is possible to bring the violator to full liability for damage associated with an administrative offense if the authorized body has issued a decision:
on the imposition of an administrative penalty;
on termination of proceedings in the case of an administrative offense due to its insignificance (in this case, the fact of an administrative offense must be proven).
The determination of the amount of damage is determined by the employer in two ways - in general and special okay. Yes, according to Art. 246 of the Labor Code of the Russian Federation, the amount of compensation must correspond to current losses.
Important! Cash payments are made by the delinquent employee, regardless of whether he is brought to administrative, disciplinary, criminal liability for those actions (or their absence) that caused damage to the employer.
Features of the recovery procedure
After the employer has recorded the fact of the damage caused, he can partially or completely refuse material compensation. Such a measure is appropriate in two cases: if the losses are insignificant or if the offending employee has a positive reputation in professional circles (the property was "damaged" by negligence).
Important! The decision of the employer to collect compensation in the prescribed amount must be documented (in the form of an order). As soon as the amount of damage is established, the employer issues an order to withhold funds from the salary of the subordinate. This document must be issued no later than 30 days from the date of ascertaining the fact of damage and reflecting it in the inventory act.
The amount to be recovered from the employee should not exceed his monthly salary (set on the basis of the actual salary for 12 months).
The deduction of funds to cover material damage is not carried out from:
- travel;
- Payments that cover the material costs of transferring an employee to another locality;
- Funds for inventory depreciation;
- maternity;
- Benefits for pregnancy and childbirth.
If material damage to the employer was caused by a group of persons, then the amount of compensation paid by each of them is determined by the degree of fault and the type of liability (it can be full or limited).
Important! If the employer failed to voluntarily agree on the amount of payments with the team, the amount of compensation is established in court.
In order to accurately calculate the amount of compensation required, it is necessary to determine the market price of the damaged property on the day it was discovered. It is noteworthy that this figure should not be lower than that indicated in the financial statements, minus the degree of depreciation of material assets.
The determination of the amount of compensation for damage to the employer in the general procedure is carried out in 2 ways:
- Based on actual losses, taking into account the market value of material goods for the current day;
- Based on the data of financial statements, focusing on the degree of depreciation of the property.
The latter calculation option is advisable to use when the market price of the goods is lower than its purchase price.
Important! The general procedure for recovery for material damage caused allows the employer to withhold an amount that does not exceed the average monthly salary of the guilty employee. The rest of the compensation must be covered by the company's funds or insurance premiums (if the damaged property was insured).
Determining the amount of compensation in a special order is carried out in the following situations:
- material damage was caused to the employer as a result of deliberate damage to property, as a result of theft or shortage;
- the actual amount of damage exceeds the nominal value of the “affected” benefits.
In accordance with the labor legislation of the Russian Federation, the employer can deduct no more than 20% from the employee's salary, and if the damage was caused as a result of criminal activity - up to 70%.
Redress mechanisms
The employee can voluntarily compensate the employer for the damage caused. In this case, a document (agreement) is drawn up, which strictly regulates the specific conditions of payments.
The amount and form of compensation for damage are determined by both parties - it can be money or other property that is equivalent to lost (damaged).
Compensation can be paid by the employee gradually (an installment agreement is concluded), the guilty person undertakes to fully cover the damage by a certain time.
Important! If the employee has not repaid the debt within the established time limits, the employer may sue the unpaid funds from him.
It should be remembered that with a voluntary agreement, an employee can cover compensation, the amount of which does not exceed his average monthly salary. When a large amount is fixed in the agreement, the employee has the right to refuse to pay the remaining part of the debt.
Compensation for damage is carried out not only voluntarily, but also out of court - the employer withholds the established amount from the salary of the offending employee.
Extrajudicial recovery of compensation is carried out subject to several important conditions:
- the total amount of damage coverage does not exceed the monthly earnings of the offending person;
- no more than 30 days have passed since the damage (loss) of the property;
- the employment relationship between both parties continues throughout the entire compensation period.
Damages are compensated by the court in the following situations:
- the amount of money required by the employer exceeds the monthly salary of the offending employee;
- more than a month has passed since the discovery of the fact of damage (loss) of property.
When drawing up (submitting) a statement of claim, the victim must prove the fact of damage to property, indicate the amount of compensation and determine the degree of guilt of each employee (if we are talking about collective labor responsibility).
Rules for filing a claim
The document is drawn up in free form manually or using technical means. The form must include:
- Name of the court;
- Address, full name or name (in the case when the claim is filed on behalf of a legal entity) of the plaintiff, his actual address, signature;
- Full name, address of the defendant;
- The subject of the claim (the fact of the damage caused, evidence of the defendant's guilt);
- The amount of compensation required (price of the claim);
- Information about pre-trial attempts to resolve the situation (if any).
In this case, the only way to claim compensation is through the courts. In accordance with Article 392 of the Labor Code of the Russian Federation, the employer has the legal right to apply to the court within 12 months from the date of causing material damage. The date of its discovery is the one on which the inventory was carried out, or the one when the victim discovered the damage caused.
If the employer and his former employee previously entered into a voluntary agreement on the payment of compensation, but at some point the guilty person did not make the next payment, and, moreover, subsequently quit, it is the date of the first missed payment that will be the starting point of the one-year period allotted for filing a claim .
How to determine the amount of damage caused by a dismissed employee: the amount of payments already made is deducted from the actual amount of compensation.
Limit payout rates
The legislation provides for partial or full liability of the employee for damage caused to the employer. The latter is relevant only when there is a clause in the employment contract, in accordance with which the employee committed illegal actions that resulted in material damage. According to Art. 243 of the Labor Code of the Russian Federation, such situations include:
- deliberate infliction of harm;
- the presence of a shortage of valuables that were entrusted to the employee in accordance with the agreement;
- criminal actions of the employee (established in court);
- the damage was the result of an act of a guilty person who was in a state of intoxication;
- cases of disclosure of confidential information relating to the economic activity of the enterprise (including that which is protected at the legislative level);
- losses caused due to an administrative violation (the fact of such a violation is recorded by the relevant state authority);
- The damage was done during non-business hours.
If the court decides that causing damage is actually a criminal act, the perpetrator bears not only financial, but also criminal liability for the deed.
Many "victims" of negligence or deliberate sabotage by employees without their knowledge withhold amounts in excess of their monthly income.
Some employers issue an order to withhold funds to pay off compensation later than a month after the discovery of the fact of damage. In both the first and second situations, it is possible to demand payment only in court.
Other errors related to material penalties against damages:
- The actual amount of damage caused by the employee is not established;
- Violation of the rules for conducting an inventory;
- There is no written explanation from the employee regarding the situation that has arisen.
Upon the fact of damage, the employer must demand written explanations from the guilty person, if the offending employee refuses to testify, this must also be documented.
When an employer cannot claim compensation:
- Extreme necessity, defense, force majeure, resulting in damage to property;
- Disdainful attitude to the exploitation and storage of material goods by the employer himself;
- The absence of an agreement on the material liability of the offending employee (or drawing up a paper without convincing reasons).
If an agreement on full liability was not initially drawn up with an employee who deals with valuables, then he will compensate for the damage inflicted in a general manner - in an amount not exceeding his monthly earnings.
In addition, the employer does not have the legal right to enter into such contracts with persons employed in positions not listed in the Decree of the Ministry of Labor No. 85.
According to Article 239 of the Labor Code of the Russian Federation, an employee may refuse to compensate for material damage in the event that a specially created commission has discovered:
- The existence of a natural economic risk in relation to a particular enterprise;
- The presence of force majeure circumstances;
- The absence of such working conditions that would allow a materially responsible person to safely operate the entrusted values and ensure their safety;
- Signs of self-defense or extreme necessity, resulting in damage to property.
It is noteworthy that in case of intentional harm, shortage, loss of property or the fact of theft, the enterprise establishes special rules for calculating losses. For example, in the event of the loss of psychotropic or narcotic drugs, the offending employee is obliged to compensate for losses of a direct nature in 100 times their original value.
Important! The full liability of the employee for the fact of causing damage can be established exclusively in court (Article 243 of the Labor Code of the Russian Federation).
So, as a result of the damage caused by the guilty employee, the employer may demand payment of compensation of the established amount. Repayment of payments is carried out in a voluntary (by agreement), extrajudicial, judicial procedure. The total amount that the employee who caused the damage undertakes to repay must not exceed the amount of his monthly income (it can be paid, by agreement with the employer, in installments).
If there are disputes related to the material damage caused, a special commission may be invited to the enterprise (conducts an investigation, sets the amount of compensation).
The labor legislation clearly regulates the rules for bringing employees to liability. However, judicial practice shows that despite this, employers make a lot of mistakes when they try to recover from the employee the damage caused to them. Often the main goal is to recover expenses incurred by the organization because of the employee. At the same time, neglect of the requirements of the law leads to loss of time, litigation and new expenses. Summarizing judicial practice, we have identified the most typical mistakes that employers make when imposing liability on an employee. Let's talk about them, because it's better to learn from the mistakes of others.
Issues relating to the liability of employees are regulated by Art. 238-250 of the Labor Code of the Russian Federation (Chapter 39 of the Labor Code of the Russian Federation).
In accordance with Art. 238 of the Labor Code of the Russian Federation, all employees guilty of causing direct actual damage to the employer are liable, that is, they compensate for the damage. However, the limits of such responsibility are not the same for all employees and are determined taking into account the nature and scope of their work duties, differences in service competence, rights granted, etc.
Full liability by way of exception
As a general rule, the material liability of an employee who caused damage to the employer is limited to the average monthly earnings (Article 241 of the Labor Code of the Russian Federation). It's called limited.
Liability in the full amount of the damage caused is assigned to the employee only in the event of:
1) when full financial responsibility is assigned to the employee by law;
2) shortage of valuables entrusted to the employee on the basis of a special written agreement or received under a one-time document;
3) intentional infliction of damage;
4) infliction of damage in a state of alcoholic, narcotic or other toxic intoxication;
5) causing damage as a result of the criminal actions of the employee, established by a court verdict;
6) causing damage as a result of an administrative offense, if such is established by the relevant state body;
7) disclosure of information constituting a legally protected secret (state, official, commercial or other), in situations provided for by federal laws;
8) infliction of damage not in the performance of labor duties by the employee.
In addition, liability in full can be established by an employment contract concluded with the deputies of the head of the organization, the chief accountant (Article 243 of the Labor Code of the Russian Federation).
It would seem that labor legislation clearly defines the list of cases when an employee is obliged to compensate the employer for damage in full. Nevertheless, the most common mistake is to bring not to limited, but to full liability.
example 1
By order of the employer, P. was hired as a forwarding driver in the transport department of the CJSC. On March 25, 2010, on the Ekaterinburg-Kurgan highway, the car IZH-27175-036, owned by CJSC, driven by P. broke down and received mechanical damage.
The company repaired the car at its own expense. The repair cost 23,304 rubles. 66 kop. CJSC filed a lawsuit demanding the recovery of the full cost of repairs (it exceeded the monthly salary of the employee).
From the act of investigating the circumstances of the failure of the vehicle, it follows that driver P. is guilty of causing damage. He did not take timely measures to eliminate the malfunction, did not inform the management of the JSC about it and independently made a decision on the further operation of the car.
The case materials established that on March 25, 2010, forwarding driver P. was sent on a business trip to Yekaterinburg to collect cargo, accompanied by engineer N. On the way back, a creak began to be heard from the rear axle of the car. The driver stopped, put the car on a jack, removed the right rear wheel and tried to disconnect the brake drum. The attempt was unsuccessful, and P. decided to move on.
In accordance with the job description, the forwarding driver immediately reports to the management about all incidents, theft, etc. The forwarding driver reports to the head of the transport department.
P. did not notify the head of the garage or the management of the joint-stock company about a serious breakdown of the car and independently decided to continue driving.
This circumstance, according to CJSC, indicates the presence of the employee's fault in causing damage. However, by a court decision, P. in favor of CJSC was awarded an average monthly salary in the amount of 9,523 rubles as part of the damages. 42 kop.
The court pointed out that the employee should be liable within the limits of his average monthly earnings, since there are no grounds for bringing to full liability the damage caused.
(From a review of the judicial practice of the Kurgan Regional Court for Civil Cases for the 2nd half of 2010)
Conclusion: it is possible to bring to full liability only in one of the cases listed in Art. 243 of the Labor Code of the Russian Federation.
Full liability agreement does not guarantee anything
Another common mistake of the employer is the requirement for compensation in full on the basis of a full liability agreement.
Indeed, one of the grounds for recovering damages in full is paragraph 2 of Art. 243 of the Labor Code of the Russian Federation, that is, the existence of an agreement on full liability. Many employers believe that the existence of such an agreement guarantees the recovery of damages in full, and forget that the court will refuse such a claim if it turns out that there were no legal grounds for concluding an agreement.
It is possible to conclude such an agreement only with an employee who occupies a position named in the Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85 “On approval of the lists of positions and works 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 liability.
According to Art. 244 of the Labor Code of the Russian Federation, written agreements on full individual or collective (team) liability (clause 2, part 1, article 243 of the Labor Code of the Russian Federation) for a shortage of property entrusted to employees can be concluded with employees who have reached the age of 18 and directly serve or use monetary, commodity values or other property.
Thus, if there is no position in the said resolution or, in accordance with the job description, the employee does not directly service valuables and property, the court recognizes the conclusion of an agreement on full liability as unreasonable.
example 2
By the decision of the Chapaevsky City Court of the Samara Region dated June 18, 2009, the organization was denied satisfaction of the claim against the employee for compensation for damage caused in the performance of labor duties. The court found that the employee worked first as a leading specialist, and then as a section head. Despite the fact that an agreement was concluded between the employee and the employer on full liability for the original position, the employer did not prove in court the functions of the employee in terms of the preservation of material assets. There were no job descriptions for the leading specialist and section head in the organization.
example 3
The employer filed a lawsuit against the employee to recover the amount of damages. In support of his claims, the plaintiff referred to the fact that the employee is a materially responsible person.
The courts of first and cassation instances satisfied the claim. But the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation canceled the court decisions that had taken place in the case, sent the case for a new trial to the court of first instance on the following grounds.
The employee held the position of a specialist in the production department, additionally performed the duties of driving a car owned by the organization. However, in the List of positions and works replaced or performed by employees with whom the employer can enter into written agreements on full individual liability for the shortage of entrusted property, approved by Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85, the position occupied by the employee, as well as the work he does is not included.
These circumstances indicate that the agreement on full material liability, in principle, could not be concluded with the employee. Such an agreement does not serve as a basis for bringing the employee to full liability. The organization's claims for damages in full, exceeding the average monthly earnings of the employee, are contrary to the requirements of the Labor Code of the Russian Federation.
The lists of works and categories of employees with whom the named contract can be concluded, as well as the standard forms of these contracts, are approved in the manner established by the Government of the Russian Federation. Thus, labor legislation provides for specific requirements under which the employer has the right to conclude a written contract with an individual employee on full liability, a list of positions and works in the performance of which this contract can be executed, mutual rights and obligations of the employee and the employer to ensure the safety of material values transferred under the report.
(Determination in case No. 18-В09-72, from a review of the practice of the Supreme Court of the Russian Federation for the IV quarter of 2009)
Conclusion: violation by the employer of the requirements of the legislation on the procedure and conditions for concluding and executing an agreement on full individual liability is the basis for releasing the employee from the obligation to compensate for the damage caused through his fault to the property of the employer in full, exceeding the average monthly earnings of the employee.
There is a crime, but there is no damage
Sometimes the employer, not taking into account whether real damage has been caused, tries to hold the employee financially liable for violating the rules for performing labor functions or committing another offense related to the performance of official duties.
example 4
Satisfying the requirements of LLC, the court proceeded from the fact that L., an employee of the company with which an agreement on full liability was concluded, caused damage to the LLC as a result of issuing funds from the cash desk in violation of the rules for conducting cash transactions established by the Federal Law “On Accounting ”, and the Procedure for conducting cash transactions in the Russian Federation, approved by the decision of the Board of Directors of the Central Bank of the Russian Federation of September 22, 1993 No. 40. At the same time, the court did not take into account Art. 238, 242 and 243 of the Labor Code of the Russian Federation. Based on these norms, the damage caused to the employer is compensated by the employee in full if the existence of direct actual damage is proved.
Meanwhile, as follows from the explanations of the representatives of the LLC, the fact of causing direct actual damage was not established, since none of the persons to whom the funds were issued according to the statements and expenditure cash warrants applied to the company with a demand to pay the amounts due to them.
The LLC’s claim for damages was based only on the fact that the employee violated the rules for conducting cash transactions, according to which the issuance of money from the cash desk, not confirmed by the recipient’s receipt in the cash order or other document replacing it, is not accepted as justification, is considered a shortage and is recovered from the cashier.
The cassation instance did not support the position of the court of first instance and refused to satisfy the claim for bringing to material responsibility.
(Determination of the Perm Regional Court dated 03.08.2010 No. 33-5964)
Conclusion: the basis for imposing material liability on an employee is the establishment of the fact that direct actual damage was caused through his fault.
Civil liability is not applicable in labor relations
The employer often includes in the claim claims based on the norms of the Civil Code of the Russian Federation, for example, along with the requirement to compensate for damage, he charges the employee with interest for the use of other people's money or lost income (lost profits).
Here we must remember that it is possible to simultaneously apply the norms of labor and civil law to the relations that have developed between the employer and the employee only in the cases specified in the law. So, in part 2 of Art. 277 of the Labor Code of the Russian Federation establishes that in the cases provided for by federal laws, the head of the organization compensates the organization for losses caused by his guilty actions. In this case, losses are calculated in accordance with the norms enshrined in civil law. In all other cases, it is unacceptable to apply the norms of civil law to labor relations. According to Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for the direct actual damage caused to him. Unreceived income (lost profit) from the employee is not recovered.
Direct actual damage is understood as a real decrease in the employer’s cash property or deterioration in the condition of the said property (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs or excessive payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties.
example 5
An individual entrepreneur hired K. as a legal adviser with a salary of 5,000 rubles. The employee began to perform her duties. She received 45,000 rubles from the cash register. under an account cash warrant for concluding an agreement with Russian Railways for the supply of wagons to the access railway tracks used by the plaintiff for business activities. K. did not report for the money received under a one-time document, she did not provide evidence of spending money for the intended purpose.
The employer, an individual entrepreneur, filed a lawsuit demanding the recovery of damages and interest from the employee for the use of other people's money.
By decision of the district court, the claims of the IP were partially satisfied. 45,000 rubles were recovered from K., interest in the amount of 800 rubles, a refund of the state duty of 1,474 rubles. However, the cassation instance overturned the decision regarding the recovery of interest from K. in the amount of 800 rubles. and state fees.
The regional court concluded that in resolving the dispute on compensation for damages, the court of first instance came to a reasonable conclusion about the recovery of 45,000 rubles from the employee, correctly guided by the provisions of Art. 238 and 243 of the Labor Code of the Russian Federation, which regulate legal relations for compensation for damage caused by an employee. However, when collecting interest for the use of other people's funds in accordance with Art. 395 of the Civil Code of the Russian Federation in the amount of 800 rubles. substantive law was applied incorrectly. The court did not take into account that labor relations are not regulated by the norms of the Civil Code of the Russian Federation, and the provisions of the Labor Code of the Russian Federation to be applied do not provide for the collection of the indicated interest from the employee. According to Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer only for the direct actual damage caused to him.
(Determination of the Perm Regional Court in case No. 33-1708/2010)
Sometimes confusion in the application of the norms of the Labor Code of the Russian Federation and the Civil Code of the Russian Federation is associated with harm caused by an employee not to the property of the employer, but to third parties. The fact is that, having compensated damage to third parties, the employer has the right to file a recourse claim against the employee, that is, to recover from him the damage that he has already reimbursed. Damage to third parties in such a situation is compensated according to the rules of civil law. The employer, believing that civil law can also be applied when recovering damages from an employee, tries to do this without taking into account the peculiarities of labor legislation.
The very concept of a recourse claim is a civil law category. Article 1081 of the Civil Code of the Russian Federation provides an employer who has compensated for harm caused by another person (an employee in the performance of official, official or other labor duties, a person driving a vehicle, etc.), the right to claim back (recourse) against this person in the amount of the paid compensation, unless otherwise provided by law.
In paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 No. 52 “On the application by the courts of legislation governing the liability of employees for damage caused to the employer”, it is explained that damage caused by an employee to third parties should be understood as all amounts paid by the employer to third parties in damages account. It turns out that the norms of the Labor Code on compensation for harm to third parties by the employer for harm caused by an employee correspond with the norms of the Civil Code of the Russian Federation and recourse requirements are based on both legislation.
It is important that the norms of the Labor Code of the Russian Federation also apply to recourse requirements, that is, damage can be recovered from the employee in full only in the cases provided for in Art. 243 of the Labor Code of the Russian Federation.
example 6
The employer filed a claim against the employee for damages in recourse. The court found that the employee, driving a ZIL-431410 car, drove into the oncoming lane. There was a collision with a VAZ-2106 car, the driver of which died from his injuries. The traffic police found the employee guilty in the accident. By the decision of the district court of the Chelyabinsk region, the criminal case initiated against the employee was terminated due to the reconciliation of the accused with the representative of the victim. By the decision of the city court, compensation for non-pecuniary damage in the amount of 80,000 rubles was collected from the employer in favor of the victim.
By the decision of the first and cassation instances, 40,000 rubles were recovered from the employee in favor of the employer, as well as court costs. But the Supreme Court of the Russian Federation canceled these decisions, indicating that there was no final conviction in the criminal case against the employee. This means that there are no grounds for bringing the employee to full liability.
(Determination of the Armed Forces of the Russian Federation of 08/01/2008 No. 48-В08-7)
Conclusion: the damage caused by the employee is compensated only on the basis of labor legislation.
The ratio of administrative and financial responsibility
The employer is mistaken in thinking that, having paid a fine for an administrative offense, he can recover the amount of the fine from the employee as part of full liability. This is justified by the fact that bringing the organization to administrative responsibility occurred through the fault of the employee.
example 7
The OJSC filed a lawsuit against its employee to recover damages in the amount of 40,000 rubles. The requirements are motivated by the fact that the company was brought to administrative responsibility in the form of a fine in the amount of 40,000 rubles for committing an administrative offense. The plaintiff believed that the damage in the form of payment of an administrative fine was caused as a result of improper performance of labor duties by the head of the store, whose duties include compliance with the deadlines for the sale of goods and with which an agreement on full liability was signed.
The court concluded that, since the store manager had not been brought to administrative responsibility, it was impossible to recover the damage in full. You can only recover damages in the amount of average earnings, that is, apply limited liability.
(Supervisory practice of the Supreme Court of the Republic of Karelia // Bulletin of the Supreme Court of the Republic of Karelia. 2008. No. 1(18))
Conclusion: a financially responsible employee cannot be held fully liable in connection with causing damage in the form of a fine imposed on the organization in an administrative manner.
The fact is that the very fact of causing damage is not the basis for terminating the employment contract at the initiative of the employer; this also requires the decision of the competent authority (see, for example, subparagraph “d”, paragraph 6 of article 81 of the Labor Code of the Russian Federation). At the same time, the employee who caused the damage has the right to quit at his own request. The employer then goes to court to recover damages. In the event that the employer fails to comply with the conditions for the recovery of damages (namely, if the one-month period during which a deduction order can be made is violated, or an amount exceeding the average monthly earnings is recovered), the employee has the right to go to court, moreover, as follows from part 2 Art. 248 of the Labor Code of the Russian Federation, bypassing the commission on labor disputes. Note! Average earnings are calculated according to the rules of art. 139 of the Labor Code of the Russian Federation as amended by Federal Law No. 90-FZ dated June 30, 2006.
How to make payroll deductions
Dismissal when changing the owner of the organization's property or reorganization "and" Everything you wanted to know about layoffs "The list of grounds that allow the employer to make deductions on their own initiative is closed and not subject to broad interpretation. For example, it is impossible to deduct from the employee's wages amounts overpaid to him due to an incorrect interpretation of regulatory legal acts.
Despite the fact that there are grounds for withholding, the employer should obtain consent from the employee for it. If the latter is against, even on the condition that the basis is indicated in Art.
137
Labor Code of the Russian Federation, then it is illegal to withhold. The employer will have to decide this issue in court. An exception, when the consent of the employee is not required, is the deduction of amounts for unworked vacation days.
Is it possible to withhold the amount of damage from the salary?
Info
Therefore, before proceeding with the recovery, the head of the organization must create a special commission to investigate and establish the fact of the violation, the employee's involvement in it and the amount of harm caused to the enterprise. According to Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for direct damage caused.
Attention
You can not recover from wages only the amount of lost profits. Read also about how to keep a shortfall from your salary.
The amount of the penalty The specific amount of deductions from the salary of staff is established by Art. 138 of the Labor Code of the Russian Federation. The collection cannot exceed 20% per month. The amount to compensate for the damage caused to the enterprise must be deducted from the accrued wages minus the income tax of 13%.
See also: Examples First example: The accrued salary of an employee for a month is 45 thousand. The damage amounted to 30 thousand.
If the employee remains owed: how to keep
Code of Administrative Offenses of the Russian Federation):
- from 1,000 to 5,000 rubles. - a fine for officials and individual entrepreneurs;
- from 30,000 to 50,000 rubles. - penalty for organizations.
Similarly, an employer cannot, on its own initiative, deduct amounts from an employee's salary to repay a loan issued to him. Repayment of a loan by deduction from wages is possible only at the request of the employee himself.
Also, the employee can “ask” the employer in writing to deduct other amounts from wages on a monthly basis: to pay off a bank loan, for the voluntary maintenance of children, etc. At the same time, the bank commission and other expenses associated with the transfer of these amounts to the recipient must also be made at the expense of the employee.
! Please note: Deductions from wages that the employer makes at the written request of the employee are not "withholdings" within the meaning of Art.
Payroll deductions
The founding documents oblige the employer to first create a commission to investigate and establish the amount of material damage. Written explanations of what happened must be requested from the employee.
If he refuses to give them, you need to draw up an appropriate act. Upon completion of the investigation, it is recommended to create an act with the amounts of damage caused to the enterprise. Art. 248 of the Labor Code of the Russian Federation states that in order to recover, the employer must issue an order (order). It is he who will act as the documentary basis for deduction from the salary. If the employee does not agree to pay the debt, and the amount of damage is more than his average monthly earnings, the debt can be collected only through the courts. Then the documentary basis will be the decision of the court.
Under such circumstances, an additional retention order is not issued.
Chapter 11 Deductions from wages
Note that the provision of Art. 137 of the Labor Code of the Russian Federation is interpreted by some experts as a requirement of the employer to inform the employee without fail that a deduction will be made on such and such a basis and in such and such an amount (that is, in fact, ask for his consent). Absence in Art. 137 of the Labor Code of the Russian Federation of instructions on the need to obtain the written consent of the employee suggests that the employee is considered not disputing the withholding until he declares this to the employer. recovery of damage under certain conditions In the following cases, although deductions are made, they are subject to a monthly period and provided that the employee does not dispute their basis and amount: 1) to pay off an unspent and not returned timely advance payment issued in connection with a business trip or transfer for another job in another area, as well as in other cases.
Four rules for deductions from wages
Voluntary compensation by the employee for damage - full or partial - is possible only with the consent of the employer. The employee either, with the consent of the employer, corrects the damaged property, or transfers an equivalent one, or deposits an adequate amount of money into the employer's cash desk.
Article 248 of the Labor Code of the Russian Federation allows compensation for damages with installment payment, but only by agreement with the employer. In this case, the employee undertakes in writing to pay the agreed sums of money at regular intervals, repaying the debt by the date stipulated by the parties.
If the employee does not fulfill his obligation or quits, the debt is collected in court. The procedure for recovering damages from a guilty employee by order of the employer is provided for in Art. 248 of the Labor Code of the Russian Federation. When deducting certain amounts from the employee's salary, the employer must comply with certain conditions.
At the same time, the agreement must be notarized, and on its basis, the employer is obliged to make deductions in the amount provided for by the provisions of the agreement, but not more than the maximum limit of 70% of the employee's salary.
- Performance list. If an employee is subject to enforcement proceedings, then the executive service may impose a penalty, including on the employee’s income.
In this case, the writ of execution is a sufficient basis for deductions from wages.
- The decision of the commission on labor disputes. In the event of a labor dispute with the employer, the final decision on deductions from the employee's salary, for example, to compensate for damages, may be taken by the labor dispute committee.
However, such a decision may subsequently be challenged in court.
- Court decision or court order.
Compensation for damages by deduction from wages
That is, the following amounts are legally deducted from wages for August:
- the amount of the penalty under the writ of execution - 5000 rubles;
- advance payment not returned on time, issued for travel expenses - 1742 rubles. 50 kop.
The maximum amount increases to 70% (part 3 of article 138 of the Labor Code of the Russian Federation):
- while serving correctional labor;
- in the recovery of alimony for minor children;
- in case of compensation for harm caused by an employee to the health of another person;
- in case of compensation for harm to persons who have suffered damage in connection with the death of the breadwinner;
- in compensation for damage caused by a crime.
Rule 4. Deductions must be properly executed 137 of the Labor Code of the Russian Federation, the employer should issue an order to this effect.
Direct actual damage is understood as a real decrease in the employer’s cash property or deterioration in the condition of the said property (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs or excessive payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties (part 2 of article 238 of the Labor Code of the Russian Federation). According to Part 1 of Art. 246 of the Labor Code of the Russian Federation, the amount of damage caused to the employer in the event of loss and damage to property is determined by actual losses calculated on the basis of market prices in force in the area on the day the damage was caused, but not lower than the value of the property according to accounting data, taking into account the degree of wear and tear of this property. At the same time, by virtue of Part 1 of Art.
And, if the income of the perpetrator per month was 70 thousand rubles, the employer would not need the consent of the employee to recover. Application example Download a sample application for consent to withhold funds in compensation for damages caused to the employer - word. The order for compensation on account of the harm caused to the enterprise The legislation does not provide for a special form of such a document. Therefore, an order is issued in free form. However, there are mandatory items that are recommended to be included in it:
- full name of the organization;
- the name of the document itself;
- a brief description - what the order is about;
- Date of preparation;
- a brief description of the situation with links to supporting documents and laws;
- the requirement to withhold in the amount of not more than 20% of the salary per month of a particular employee, indicating his full name.