Shortage after dismissal: can it be recovered, legal advice

Author of the article: Anastasia Ivanova Last modified: January 2021 22059

The Labor Code of the Russian Federation provides a list of positions, the representatives of which, when applying for a job, sign an Agreement on liability. This means that if a shortage of entrusted property objects is detected, responsibility will be assigned to the employee who signed this document if his guilt is proven. Sometimes it is necessary to recover damages arising from a shortage after the dismissal of the employee.

What the law says

Let's consider the grounds for terminating an employment agreement:

• By agreement of both parties.
• At your own request.
• At the initiative of the manager.

Can an employer delay the dismissal of a retired employee without working until the end of the inventory when changing the financially responsible person ?

An employee may also terminate his or her employment with the company because the employment agreement has expired. The dismissal of responsible persons is carried out on a general basis. However, there are some distinctive features. In particular, the employee needs to transfer property that was previously transferred for safekeeping. This must be done within 2 weeks.

For example, an employee submits a resignation letter of his own free will. He must submit it 2 weeks before leaving service. During these 2 weeks, the employee must transfer the objects entrusted to him to an authorized person. The employer draws up a no-claims certificate.

Is a shortage a reason for dismissal of financially responsible persons? View the court's opinion

Proven guilt, terms of dismissal

The identified loss is not enough to express no confidence in the employee . Significant circumstances are culpable, illegal actions, which may be improper fulfillment of obligations, failure to ensure the safety of entrusted property, negligence, inaction, resulting in its damage or other loss. To prove guilt, it is important that a person is aware of the consequences of his actions.

According to Article 193 of the Labor Code, dismissal for shortages is possible within 1 month after notifying the employer of the guilty actions that led to it.

Labor legislation is focused more on protecting the employee. When terminating a contract under Article 81 of the Labor Code, the employer needs good advice and practical assistance from a labor lawyer to present evidence of guilt to the person who committed the shortage and to comply with the dismissal procedure.

Types of financial liability

There are these forms of responsibility assigned to the employee:

• Partial. In this case, regardless of the amount of damage, compensation is paid in the amount of average monthly earnings.
• Full. In this case, compensation is paid in full. However, full responsibility can only be imposed on a limited number of employees: chief accountant, cashier, manager. The list of employees who can be assigned full responsibility is given in Resolution of the Ministry of Labor No. 85.

Information about the existence of full responsibility must be specified in the employment agreement. There is also a list of cases in which compensation is paid in full. For example, this is intentional causing harm.

What is the procedure for transferring inventory items upon dismissal of a materially responsible person ?

What are the consequences of discovering a shortage?

If the fact of a shortage is established, financially responsible persons bear responsibility for its occurrence (Article 243 of the Labor Code of the Russian Federation). This means that such persons are obliged to fully or partially compensate for the damage suffered by the enterprise. The amount of damage is calculated based on RF Regulation No. 52 (dated November 16, 2006).

When determining the amount, the following factors are taken into account:

• complete absence of property;
• deterioration of the condition of the entrusted property;
• expenses that the company will incur when restoring and acquiring new property;
• financial expenses that the company will incur when compensating for damage to third parties if it was caused by a shortage.

If, according to estimates, the total amount of damage turns out to be less than the employee’s average earnings, the compensation procedure is regulated by the Order of the head of the enterprise, which is issued within a month after the internal audit.

If the employee has already quit, the situation becomes somewhat more complicated. There are two ways here:

1. The former employee admits his guilt and voluntarily compensates for the damage.
2. The employer files a claim in court with a request to recover the amount of damage.

If the former employee agrees to compensate for the damage voluntarily, a corresponding Order is issued. The head of the enterprise can meet halfway and draw up a schedule for repaying the damage in installments. In such a situation, the former employee writes an obligation to repay the debt, which indicates the amount of damage and the final deadline for its repayment.

Grounds for filing a claim for compensation for material damage by an employee:

• The employment relationship between the employee and the employer is officially terminated;
• The former employee does not admit guilt for material damage or refuses to compensate for it.

Options for dismissing a financially responsible person

Termination of an employment agreement can be carried out for a variety of reasons. Let's consider everything.

How to hold an employee to full financial responsibility ?

By your own free will

If an employee wishes to leave the company, he needs to submit a corresponding application 2 weeks before the date of dismissal. During these 14 days, MOL transfers all material assets entrusted to it. Two-day work is an employer’s right, not an obligation. He may allow the employee to leave on the day the application is submitted. On the same date the property is transferred. The transfer of values ​​is documented.

At the initiative of the manager

An employer can fire an employee only if there are serious reasons: absenteeism, theft, provision of false documents when hiring, etc. Dismissal at the initiative of a manager is an extremely complex procedure. It is complicated by the need for various regulatory measures. For example, this is a request for an explanatory note from an employee, or the execution of an order.

The employer needs to prepare a basis proving the existence of grounds for dismissal. For example, if an employment agreement is terminated due to the provision of false documents, the manager needs to send a request to the structure that issued this document. If an employee has provided a diploma of education that is allegedly fake, the employer sends a request to the appropriate educational institution.

IMPORTANT! The manager must notify the employee of dismissal 2 weeks in advance. The specified time is necessary for the person to have time to hand over material assets.

Due to reaching retirement age

An employee who resigns due to retirement has the right not to work for 2 weeks. However, in order to leave without working, you must indicate in the application that the agreement is terminated precisely in connection with retirement.

Procedure for terminating an employment contract

The procedure for terminating an employment contract requires proper execution of documents. The employer should not be based on personal hostility towards the employee, otherwise restoring the employee’s rights in court will lead to an administrative fine by the company’s managers.

A former employee has the right to sue for illegal dismissal and demand compensation for forced downtime at work due to the fault of the employer.

Guilty actions or inactions of a company employee, committed repeatedly, no matter during working hours or not, can lead to dismissal if there are penalties confirming repeated violations.

When hired, an employee who is a financially responsible person must accept the valuables by signing the transfer certificate and the inventory report. After completing the documents, all goods are transferred to the care of a new employee, who fully controls their safety and strict accounting. When a shortage is identified, the employer requires the employee to write an explanatory note, who has the right to indicate objective reasons for the expenses. This may be a malfunction of the devices, which is confirmed by the act of checking them based on tests.

An employee’s refusal to give an explanation is also documented in an act. The order must be observed, because only reliable, dated documents will become the evidence base in court proceedings. Labor legislation protects the employee from the subjective hostility of the employer by providing the opportunity to appeal the dismissal order. Article 81 of the Labor Code of the Russian Federation applies in the event of negligence in the performance of duties or failure to fulfill official duties, which led to loss or damage to property.

The procedure for dismissing a financially responsible person

Dismissal of a MOL is a procedure complicated by the fact that the employee has property transferred for safekeeping. Let's consider all stages of this event.

Inventory

When dismissing such an employee, an inventory must be carried out. An employee must be present at this event. If another employee joins the vacated position, he must also take part in the inventory. Let's consider the main stages of the procedure:

1. Drawing up an inventory order.
2. Organization of the commission.
3. Drawing up a report on the results of the audit in 3 copies (2 copies are transferred to the financially responsible person, and one remains in the accounting department).
4. If inconsistencies are found, an inventory is prepared.
5. If a shortage is discovered, the employee prepares an explanation.
6. Calculation of the amount of damage.
7. The manager draws up a resolution to recover damages.

The purpose of inventory is to detect possible damage.

Certificate of acceptance and transfer of objects

The transfer and acceptance certificate confirms the fact that all property was transferred by the employee for storage. The act contains the following information:

• Date of registration.
• Information about the company: address, name.
• Shelf life.

The act must contain a table with a list of the property being transferred, as well as information about its value. The dismissed employee must take part in the transfer of property to the new employee.

Drawing up an order

First, the employee submits a resignation letter. After this, the manager issues an order. It must state the grounds for dismissal of the person. The order must bear the signature of the manager. Subsequently, a corresponding entry is made in the work book. On the day of dismissal, the employee is given a record book, and a payment is made. The employee receives not only a salary, but also compensation for unused vacation.

Responsibility for shortages

Punishment for causing material damage to the employer by an employee and measures of liability are considered in Article 39 of the Russian Labor Code. Even termination of the contract and dismissal of the employee cannot relieve the employee of responsibility for the detected theft.

Most often, in order to compensate the organization for damage caused to it by a dismissed employee, the employer will need to go to court. The main thing is not to delay and have time to go through all the authorities within one calendar year . This limitation period is provided for when a deficiency is discovered.

Dismissal if there is a shortage

How to fire an employee if there is a shortage? The following sequence of actions is performed:

1. An inventory is carried out to determine the extent of the damage. Its implementation is stipulated by paragraph 27 of the Regulations on BU No. 34.
2. Organization of a commission to carry out an internal investigation. Its representatives must determine the reasons why the damage occurred. The organization of the commission is stipulated in Article 247 of the Labor Code of the Russian Federation.
3. The employee must write an explanatory letter. In it, the person explains the reasons why the damage occurred.
4. The actual damage to the company is determined. It is calculated based on market prices current on the current date. Prices must correspond to the information provided in the accounting documentation. Wear and tear must also be taken into account.
5. The employee should be notified of the results of the investigation. He has the right to challenge them.
6. If the amount of damage does not exceed the average monthly salary, funds may be recovered. The basis for collection is a local order.
7. An employee can compensate for major damage by gradually paying the required amount. That is, installments are used. However, this is only possible if the employee has a voluntary desire. In this case, the employee must sign a compensation obligation. The same document stipulates the payment terms. If a person stops paying, the missing amount is recovered through the court.

If major damage is discovered and the employee refuses to pay the funds voluntarily, the employee seeks compensation through the court.

How to leave on your own accord?

Dismissal at one's own request is carried out in the manner established in accordance with Art. 80 Labor Code of the Russian Federation. The application is submitted:

• in two weeks - as a general rule;
• three days in advance - if a fixed-term employment contract of up to 2 months has been concluded with the materially responsible employee;
• per month - upon dismissal of the head of the organization.

As a rule, a two-week period is sufficient to carry out an inventory, but if a fixed-term contract is terminated early, a three-day period will not be enough. In this case and in situations where dismissal is made without working off, an inventory is not carried out unless the employer persuades the financially responsible employee to resign later.

When and how can you fire an employee if a shortage is identified?

The Labor Code of the Russian Federation does not provide for such grounds for dismissal as “shortage of inventory items due to the fault of the employee.”

3.1. Good afternoon No, a pregnant woman cannot be fired for shortages a month before her maternity leave. If you were fired like this, file a claim for reinstatement. Such an application is submitted to the district court within 1 month from the date of dismissal.

But paragraph 7 of Article 81 of the Labor Code of the Russian Federation provides the following grounds for dismissal: “committing guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him on the part of the employer.” That is, you can be fired under the article “loss of trust”.

Let us describe the procedure. Breaking news for accounting: .

Read the details in the magazine. It is possible to terminate an employment contract due to loss of trust if the employee has committed a guilty offense, which caused the loss of trust.

These can be either intentional guilty actions or facts of negligence or negligence on the part of the employee. Guilty actions include, for example, weighing, measuring, shortchanging customers, violating the rules for selling goods, using accountable assets for personal purposes, etc. Negligence includes storing keys to premises with valuables in public places, leaving material assets unattended, issuing money without completing the relevant documents, etc.

p. If an employee has committed an unseemly act, for example, caused damage to the organization, under force majeure circumstances (fire, flood, other natural disaster), his liability is excluded. He will also not be guilty if he damages the organization’s property, using it for necessary self-defense. To lose trust in an employee, it is not necessary that he commit an offense in the workplace.

Transfer and Acceptance Certificate

The acceptance certificate is drawn up after the inventory in three copies: for the resigning employee, for his successor and for the head of the organization.

The form of the act can be established by the organization independently, but for convenience, many enterprises use the unified form OP-18 ( Decree of the State Statistics Committee No. 132 ). As a rule, it includes the following provisions:

• information about the organization;
• date and document number;
• list of material assets transferred to the new employee (in the table);
• Full name, position and signature of the employee who handed over the valuables;
• Full name, position and signature of the successor;
• signature of a representative of the administration or head of the organization.