Article 248 of the Labor Code of the Russian Federation. Procedure for recovery of damages (current version)

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Published: 05/14/2016

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Current Russian legislation provides for mandatory compensation for damage caused to the employer.

The procedure for compensation depends on the type of legal relationship between them.

Let's take a closer look.

• How is the amount of damage caused determined?
• The procedure for an employer to recover compensation for damage caused
• Options for compensation for material damage by an employee Voluntary
• Extrajudicial
• Judicial

Conditions for the onset of financial liability for an employee

Article 233 of the Labor Code of the Russian Federation defines the following conditions under which an employee can be held financially liable:

• Direct damage to the tenant's property.
• Committing illegal actions.
• Cause-and-effect relationship between the employee’s actions and the occurrence of damage.
• The damage was caused by the fault of the employee.
• There are no circumstances that exempt the employee from liability.

Russian labor legislation requires compliance with all five conditions. If at least one condition of the employee’s actions is missing, then it will not be possible to hold him accountable and the employer will not be able to recover compensation for damages.

Direct damage to the employer's property

It is important to understand that damages can be recovered from an employee only for those losses that can be accurately calculated. Otherwise, he will not compensate them. Also in relation to lost profits, it will not be possible to recover it from the employee.

Article 238 of the Labor Code of the Russian Federation states that only direct actual damage can be recovered from an employee, which is expressed in:

• Deterioration of the condition of the employer’s property and transferred to him under personal responsibility by third parties, or a reduction in the quantity (volume) of this property.
• Costs of restoring damaged property or compensation to third parties as a result of harm caused to them by an employee.

The most common types of damage are:

• Lack of money or property.
• Payments for employee downtime and absenteeism.
• Damage to equipment and materials, as well as the costs of their repair and restoration.
• Fines paid by the employer for the employee.

As a result of this type of damage, the employee’s liability is limited to the amount of damage. It must be based on documents proving the fact of damage. Such documents include an act of discovery of a breakdown or other type of damage, the broken property itself, inventory materials, as well as explanatory notes from the guilty employees.

Illegality of actions and their connection with damage

For any employee, a list of responsibilities is defined within the framework of the employment contract. Their failure to comply constitutes the wrongfulness of the damage caused. In practice it is expressed in:

• Failure to comply with internal labor regulations.
• Violation of the terms of the employment contract.
• Ignoring job descriptions.

To hold an employee financially liable, it is important for the employer to prove that it was the employee’s failure to fulfill his duties that led to the damage.

For example, if during the investigation of theft it was determined that the storekeeper did not check the alarm system, this does not mean that he is guilty of causing damage due to theft. Here it is important to prove that the theft occurred precisely at the moment when the alarm was turned off.

The employee's fault for causing the damage

Guilt can be intentional or unintentional. In the second case, we are talking about causing damage due to negligence and imprudence.

The difference between these types of guilt is described in the third paragraph of Article 243 of the Labor Code of the Russian Federation. In case of intentional harm, the employee:

• He understands that he is breaking the law.
• Realizes that as a result of his actions he causes harm.
• Wishes such consequences to occur.

In case of negligence, the employee also understands the illegal nature of his own actions, but:

• Or he does not foresee the risk of consequences in the form of damage, although he should have foreseen them.
• Or he foresees this risk and wants to prevent the occurrence of such consequences.

In both cases, the employee may be found guilty of causing damage, but the presence of intent in the employee’s actions is a circumstance that aggravates his guilt.

Absence of circumstances that exclude the employee’s liability

Article 239 of the Labor Code of the Russian Federation exempts an employee from liability for damage caused in the following cases:

• Presence of normal business risk.
• Force majeure circumstances.
• Self-defense.
• An urgent need.
• Violation by the employer of the conditions for storing property entrusted to the employee.

If the employee can prove that the damage occurred for one of the listed reasons, then he will be released from liability.

Establishing the amount of damage and the employee’s guilt

The procedure for compensation for damage by an employee is strictly regulated by the Labor Code of the Russian Federation. One of the most important requirements is an accurate determination of the amount of damage. This requirement is specified in Article 246 of the Labor Code of the Russian Federation. It reads:

• The cost of lost or damaged property is calculated based on its book value, taking into account the degree of wear and tear. At the same time, it is prohibited to calculate this amount based on the market value of the item, because this will lead to the recovery of lost profits from the employee, which is prohibited by law.
• Some types of property require a special procedure for collecting compensation for their damage or theft. Among these are psychotropic drugs or narcotics. If they disappear due to the intent of the employee, he will be charged damages in the amount of one hundred times the value of the stolen property.

It is important that the amount of damage is documented.

Establishing the amount of damage and the employee’s guilt

The Labor Code describes in detail the procedure for compensation by an employee for damage caused to the employer. So, in Art. 247 establishes the obligation to establish the exact amount of damage and the cause of its occurrence .

Then the employer will have 1 month to prepare documents and resolve the issue pre-trial. The countdown starts from the day of summing up the inventory or inspection of damaged property.

Calculation of the amount of damage

The amount of damage caused to the employer's property is determined in accordance with the requirements of Art. 246 Labor Code of the Russian Federation :

1. In the event of loss or damage to property, actual losses are calculated based on its book value, taking into account depreciation. It is impossible to carry out calculations based on market prices, since in this case lost profits will be recovered from the employee, which is unacceptable.
2. In case of intentional damage, theft, shortage or loss of certain types of property, a special procedure for assessing the amount of damage may be established. For example, for the theft of drugs or psychotropic substances, direct actual damages of a hundredfold are recovered from the employee.

Internal review

The employer is obliged to confirm the amount and circumstances of the damage. To do this, it is necessary to organize an internal audit .

The methods for carrying it out depend on the characteristics of each case:

1. Service commission . Required when it is necessary to investigate the circumstances that exempt the employee from compensation for damage. The creation of a service commission is formalized by an order in free form signed by the head. The law does not regulate its composition, so both company employees and outsiders can be involved in the investigation.
2. Inventory . It is carried out if facts of theft, damage or abuse of property are revealed.

If property damage occurs as a result of an accident due to the fault of an employee, an internal investigation is usually not required.

The circumstances of the case are proven by documents from the traffic police. The amount of damage is confirmed by documents from insurers and repair organizations.

Request for employee explanation

After establishing the amount of damage, the organization must request a written explanation of what happened from the employee .

Refusal to provide it is recorded in an official act, which is drawn up in free form.

Test results

Based on the results of the internal audit, an act or conclusion is drawn up in any form .

The employer is not obliged to independently familiarize the employee with the materials of the internal investigation.

However, according to Art. 247 of the Labor Code of the Russian Federation, he must provide them to his subordinate upon his request . If you disagree with the results of the inspection, the employee can appeal them in court.

Internal review

An internal audit is carried out to determine and document the amount of damage caused. During its process, all the circumstances of the theft or damage to property that occurred are also clarified.

There are two main ways to conduct an internal audit:

• Service commission. It is created to verify the grounds for releasing an employee from liability. The head of the company creates such a commission by his own order. It may include company employees and outsiders.
• Inventory. It is carried out when a fact of theft, damage or abuse of property is detected.

An exception is the occurrence of damage as a result of an accident committed by an employee. In this case, there is no need to conduct an additional investigation, since the amount of damage is determined on the basis of documents from the traffic police and insurance src=»https://ruadvocate.ru/wp-content/uploads/2019/09/1-1024×576.jpg» class =”aligncenter” width=”1024″ height=”576″[/img]

Explanations of the employee and results of the inspection

After determining the amount of damage, the employee must be interviewed about what happened. His testimony is recorded in a special act. Also, the refusal to explain is formalized in the appropriate act. The form of such an act is free.

The results of the inspection upon the fact of damage caused by the employee are documented in the appropriate act. This document remains only with the employer, but at the request of the guilty employee, based on Article 247 of the Labor Code of the Russian Federation, the employer must provide him with internal audit documents.

After becoming familiar with them, the employee has the right to appeal the results of the inspection in court if he does not agree with the conclusions of the commission.

The main mistakes of employers

1. Withholding compensation from an employee's salary that exceeds his monthly salary without his consent. For example, if the amount of damage is 15 thousand rubles, and the salary of the guilty employee is 10 thousand, then the total amount of compensation should not exceed 10 thousand rubles. The employer can receive the remaining amount of 5 thousand only after a corresponding court decision!
2. Issuance of an order to withhold funds later than one month from the date of discovery of the damage. The countdown of the specified month begins from the moment the amount of damage caused is determined. If more than 30 days have passed since this day, compensation can only be recovered through legal action !
3. The actual amount of damage has not been established.
4. Inventory rules were violated.
5. Lack of written explanation from the employee. To collect compensation, the employer is obliged to require a written explanation from the employee regarding the fact of the damage. The request must be made in such a way that the employer has documentary evidence of this. Refusal to give an explanation is formalized by an appropriate act.
6. Demanding compensation from an employee in the presence of circumstances excluding any financial liability. These include: force majeure, extreme necessity and defense, as well as neglect by the employer himself of the rules and regulations for storing property.
7. The absence of an agreement on liability or, conversely, its conclusion in the absence of grounds. If an employee working with material assets does not have a full liability agreement, in the event of damage he will be liable within the limits of his monthly salary. Also, the employer does not have the right to enter into such an agreement with employees employed in positions not specified in the list of positions (Resolution of the Ministry of Labor No. 85). Such a document will be declared invalid in court.

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Limits of compensation for damage by an employee

The law allows partial and full recovery of damages from an employee. The use of one of these options depends on the type of financial responsibility assigned to a given employee in the company.

Full compensation for damage

This type of compensation from an employee can only be recovered in court on the basis of the relevant clause of the employment contract that was concluded with this employee or on the basis of the employee’s performance of the actions listed in Article 243 of the Labor Code of the Russian Federation. These include:

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• Lack of valuables received by the employee on the basis of an official document, including a written contract.
• Intentional causing of damage.
• Acting while under the influence of alcohol or drugs.
• Committing a crime (established by a court decision) during which damage was caused.
• Causing damage as a result of an administrative offense.
• Disclosure of commercial or other secrets protected by law.
• Causing damage during non-working hours.

The employee will be held liable if the court establishes that he committed a crime during which damage was caused. Then the employee will be held criminally liable, as well as financially.

Application of an amnesty to a convicted person in accordance with Article 84 of the Criminal Code of the Russian Federation does not eliminate the need to compensate for damage. The only exceptions are situations when this condition is included in the act of pardon.

Partial compensation for damage

In all cases that do not fall under the provisions of Article 243 of the Labor Code of the Russian Federation, damages will be recovered in the form of deduction of part of the salary.

The retention procedure can be based on a voluntary agreement between the employer and employee, or on the basis of a court decision.

The amount of deduction is calculated based on the annual period preceding the date of damage. The employer determines the average salary for this period and, based on this amount, determines the amount of deductions for damage compensation.

You need to understand that the employer does not have the right to expand the list of cases of full financial liability with a local act or employment contract.

General concepts of math. responsibility

According to Wikipedia’s interpretation, financial liability is the employee’s obligation to compensate for damage caused to material assets belonging to the employer. This obligation is enshrined and regulated by Article No. 247 of the Labor Code (LC) of the Russian Federation.

There are 2 types of mat. responsibilities:

• partial – in the amount of the employee’s average earnings;
• full – covers the entire amount of damage caused, regardless of earnings.

The type of responsibility that is charged to this employee is prescribed in the employment contract when it is concluded, and the presence of material liability can also be recorded in the collective labor agreement. This option implies that responsibility extends to the entire workforce.

Except for situations where this obligation is fixed in an employment contract, complete swearing. liability may arise in a number of cases even without mention of it in the employment agreement with the employee:

• upon loss of mat. values ​​accepted by the employee with the execution of a special document, for example, a one-time power of attorney;
• in case of deliberate damage or destruction of material assets entrusted to the employee, including as a result of the commission of a crime. Even more information about intentionally causing damage to someone else's property can be found here;
• in case of accidental or intentional damage to the employer’s property as a result of the employee’s failure to comply with labor discipline, including due to alcohol or toxic intoxication;
• in the event of a leak of information relating to commercial or official secrets (read about liability for disclosure of trade secrets in the article);
• in case of damage to property when using it for personal purposes.

There are positions for which the imputation of financial liability is mandatory. For example:

• Chief Accountant,
• storekeeper,
• forwarder,
• courier,
• salesman,
• cashier, etc.

A complete list of positions with the obligatory signing of a document on full financial responsibility has been compiled and approved by the Ministry of Health and Social Development of the Russian Federation.

It is worth noting that the employer can demand compensation only for direct damage caused to material assets, but not for lost profits that he could have received from lost (or damaged) property (Article 238 of the Labor Code of the Russian Federation).
It is worth noting: in the case when the administration of an enterprise intends to hold an employee financially liable, it is necessary to correctly draw up all documents (employment contract, briefings, financial liability agreement, etc.). Otherwise, the employee will win the case, even if he is 100% guilty. Moreover, the labor commission, the law and the court almost always side with the employee, not the employer.

Recovery of damages by agreement

If the employee agrees to pay compensation, the employer will not have to go to court.

In this case, the parties to the case only need to determine the following aspects of compensation:

• The amount withheld from the employee's salary.
• Duration and form of payments. The employee can compensate for the damage immediately or in installments.
• The method of compensation is money, the transfer of other equipment to replace the damaged one, or its repair.

The agreement is documented.

Making an order

The employer's consent to release the employee from financial liability is formalized by order on the basis of Article 240 of the Labor Code of the Russian Federation. However, this is not a mandatory requirement. The order may not be issued if the parties agree on this.

If the order has not been issued, then after a year, according to Article 393 of the Labor Code of the Russian Federation, the damage is written off and cannot be recovered.

Voluntary Compensation Agreement

The main document when an employee agrees to compensate for damage caused is an agreement on voluntary compensation for damage to the employer.

The agreement must include:

• The name of the organization in favor of which compensation for damage will be paid.
• Positions and full names of the guilty employee, as well as the employee responsible for collecting compensation.
• Consent of both parties to fulfill the agreement.
• The amount of compensation, terms and method of its transfer.

This agreement must be drawn up in two copies, signed by the employee and the employer. Each of them receives their own copy of the document. No blots or corrections can be made on the agreement.

Procedure and features of recovery of damages under collective liability

A collective liability agreement is a type of full liability agreement, so the same requirements apply to them.

Responsibility under such an agreement cannot be divided between all employees who signed it. The courts are based on the fact that such a team acts as a single entity and if there is a shortage, each of the team members must separately prove the absence of their guilt in causing damage to the employer’s property (paragraph 3 of Article 245 of the Labor Code of the Russian Federation).

This is also important to know:
How can an employer recover material damages from an employee?

When resolving such disputes, the court checks the following facts (clause 14 of the PPVS No. 52):

• is it legal to conclude an agreement on collective responsibility in this case;
• whether the employer filed claims against all members of the named team who worked during the period of damage.

If the demands are not presented against all members of the team, the court involves them as third parties who do not make independent claims regarding the subject of the dispute on the defendant’s side, since their testimony can be of great importance for resolving such a dispute.

The admissibility of attracting not all employees who signed the contract does not mean that the employer can thus infringe on the rights of persons against whom he nevertheless made demands. In this case, the distribution of the amount to be compensated is made taking into account all members of the team who worked during the period of damage (for example, the ruling of the Perm Regional Court dated January 27, 2016 in case No. 33-386/2016).

When calculating the amount of compensation, the courts take into account in relation to each employee (paragraph 2, paragraph 14 of PPVS No. 52):

• the degree of his guilt;
• wages;
• actually worked time from the date of the last inventory until the moment of damage.

Maximum amount of deduction from salary

Article 248 of the Labor Code of the Russian Federation determines the percentage of an employee’s salary that the employer has the right to recover as compensation for damage caused. This article states that the amount of deduction cannot be more than the average monthly salary. But Article 138 of the Labor Code of the Russian Federation sets even stricter limits - no more than 20% can be withheld from an employee’s monthly salary.

You need to understand that the employer cannot unilaterally impose penalties on the employee. That is, if the employee has not signed a document agreeing to repay the debt, indicating the repayment period and the amount of the debt, then it cannot be withheld from the salary. This will require a court decision.

Compensation for damage caused to the employer’s property: rules for registration

The situation of an employee causing damage to the employer’s property is one of the most common. Employees “beat” company cars with surprising regularity, damage and break production and office equipment. In this article we will look at the procedure for preparing and issuing a full set of documents necessary in order, firstly, to compensate for damage, and secondly, to reduce the risk of a labor dispute. Most organizations seem to have sorted out the execution of orders and memos. But the execution of acts, all kinds of notifications, demands and proposals to employees is replete with variety: the composition of the details used is different, some assign registration numbers to these documents, while others do not, and do not fully understand why. After reading this article, you will understand everything.

In accordance with Art. 232 of the Labor Code of the Russian Federation (LC RF), the parties to an employment contract are obliged to compensate for the damage caused to each other. At the same time, the contractual liability of the employer to the employee cannot be lower, and the employee to the employer – higher, than provided for by current legislation. This norm reflects the main approach of labor legislation - the liability of the formally “stronger” party cannot be below the minimum limit, and the liability of the “weak” party cannot be higher than this limit.

For the employer, this is reflected in the presence of a number of restrictions. First of all, in terms of compensation for the amount of damage. So, in accordance with Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for direct actual damage caused to him. Lost income (lost profits) cannot be recovered from the employee. In addition, according to Art. 241 of the Labor Code of the Russian Federation, for damage caused, the employee bears financial liability within the limits of his average monthly earnings, with the exception of specially specified cases. Such cases of full financial liability can be divided into two blocks:

• the first, when it occurs on the basis of a special agreement concluded between the parties (usually it is called that - an agreement on full financial liability);
• the second includes a number of grounds that can be conditionally united by the term “culpable actions”: intentional infliction of damage;
• causing damage while under the influence of alcohol, drugs or other toxic substances;
• causing damage as a result of the employee’s criminal actions established by a court verdict;
• causing damage as a result of an administrative violation, if established by the relevant government body;
• disclosure of information constituting a secret protected by law (state, official, commercial or other), in cases provided for by federal laws;
• causing damage not while the employee was performing his job duties.

In this article, we will consider the procedure for processing those cases that are included in the second block. The list of grounds for bringing to responsibility is open, that is, the legislator has provided that full financial responsibility occurs “when, in accordance with this Code (Labor Code of the Russian Federation) or other federal laws, the employee is assigned financial responsibility in full.”

Figure 1 shows an algorithm for documenting the damage compensation process. Here you can clearly see the logic of events and in what situation which documents are drawn up. As you read further text, you can compare it with this visual diagram.

Figure 1 Algorithm for documentary support of the damage compensation process

According to Art. 247 of the Labor Code of the Russian Federation, before making a decision on compensation for damage by specific employees, the employer is obliged to conduct an inspection to establish the amount of damage caused and the reasons for its occurrence. In order to conduct such a check, the employer must create a commission with the participation of relevant specialists.

It is worth noting that a commission cannot arise out of nowhere, that is, the organization’s actions in this direction must be preceded by a document informing management about the occurrence of a problem. This can be a memo from the one who discovered the fact of causing damage, or from the immediate supervisor of the guilty employee (it is shown in Example 1), a statement from the employee himself, or any other document , for example, a resolution on bringing the employee to administrative responsibility, from which it follows that the employer's property was damaged .

Example 1 Service memo about causing material damage

The commission can be:

• situational, that is, created specifically to investigate a specific incident, or
• exist on a permanent basis.

In the first case, its education and the composition of the included persons are determined by order of the head (Example 2).

Example 2 Order to create a commission to investigate

In the second case, the commission can also be formed by order, but more often it is created on the basis of a local regulatory act (LNA). As a rule, separate LNAs are not created on the functioning of the commission - the rules governing its work are included in other documents. These may be internal labor regulations (see Example 3), provisions on disciplinary and financial liability of employees of the enterprise, or other legal regulations related to the mutual responsibility of the parties to the labor relationship. Typically, the need for a permanent commission arises in large enterprises where there are trade union organizations. In order to maintain a high level of social partnership and reduce tension between employees and management, it makes sense to include representatives of the trade union in such a commission. Specific persons included in such a commission are appointed by order of the employer for a certain period or indefinitely. It is worth noting that if the job responsibilities of these employees do not include participation in the work of such a commission, then it makes sense to look at this as an expansion of the scope of work and establish at least a minimum additional payment.

Example 3 Fragment of internal labor regulations on the work of the commission

One of the commission’s tasks is to determine the amount of damage caused to the organization. This can be either damage caused to the organization’s own property or damage caused to the property of a third party and compensated by the organization if it arose through the fault of the employee.

It is mandatory to request a written explanation from the employee to establish the cause of the damage. Moreover, the word “reclamation” appears in Art. 247 of the Labor Code of the Russian Federation, therefore the document given in Example 4 is called “Requirement”.

Example 4 Request for written explanations

If the employee refuses or evades providing the specified explanation, this fact must be confirmed by the signatures of witnesses, preferably at least three (these may not be members of the commission). To do this, you can provide a corresponding section at the bottom or on the back of the requirement (it is in Example 4) or draw up a separate document about this - an act (shown in Example 5).

Example 5 Act on refusal to give explanations

Pay attention to the presence of a registration number in the act from Example 6 and its absence in the act from Example 5. In what situations is it customary to number acts, as well as notifications, proposals and demands sent to employees? You will find the answer in the opinion of Vera Iritikova, head of the document management department of VNIIDAD, which is published at the end of the article.

Example 6 Recording the results of an investigation into the fact of damage caused by an employee

The results of the investigation must be recorded. To do this, you can draw up an official investigation report of the commission or minutes of its meeting and a conclusion on the investigation of the fact of damage caused by the employee. Drawing up an act is more appropriate when the identified circumstances and conclusions of the commission are simply recorded in one document. A protocol is appropriate when it is important to record the progress of the discussion, especially if the members of the commission have different opinions and some decisions are put to a vote.

Example 6.1 Changing the text of the act from Example 6 in a situation where the average monthly income of the perpetrator is less than the damage he caused

An option for documenting the results of the commission’s work is shown in Example 6, which reflects a situation where the amount of damage caused is less than the average monthly earnings of the guilty employee. And in Example 6.1 we showed how to describe the situation and what recommendations to put forward in a situation where the damage caused by an employee turns out to be more than his average monthly earnings (the text from Example 6.1 simply replaces the one highlighted in Example 6).

Note that the average monthly earnings are not always equal to the employee’s salary. It is calculated for the last 12 months and includes actual accrued amounts (salary, bonus, etc.). In order to avoid mistakes when determining the amount of an employee’s average monthly earnings, the commission should contact the accounting department for this information and receive an answer in the form of a document - a certificate.

Recovery from the guilty employee of the amount of damage caused, not exceeding the average monthly earnings, is carried out by order (order) . See Example 7.

Example 7 Order to recover damages from an employee within the limits of his average monthly earnings

Such an order must be issued no later than one month from the date of final determination by the employer of the amount of damage caused by the employee (Article 248 of the Labor Code of the Russian Federation). It is worth noting that the legislator, in our opinion, formulated this norm not entirely correctly. Thus, when recovering damages from an employee that arose when he committed an administrative offense or a criminal crime, the amount of damage must be known much earlier than the facts necessary for its recovery are established (the employee’s guilt and the causal relationship between his actions and the occurrence of the damage). This is due to the specifics of these cases, because recovery is possible only after the competent authority has issued the relevant act (decision or sentence), and the amount of damage in this case can serve as one of the qualifying signs that the employee’s act is classified as administrative or criminal regulation. Therefore, it is logical that in practice the norm is interpreted broadly and the countdown of the month period begins from the moment the decision to bring administrative liability or a court verdict comes into force.

So, if the month period has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer and the amount of damage caused to be recovered from the employee exceeds his average monthly earnings, then recovery is made through the employer’s claim in court.

Now let’s consider options for actions and documents in a situation where the damage is greater than average earnings. Here you need:

• or amicably agree on compensation for damage (then an agreement between the parties is drawn up),
• or go to court,
• however, there is a third option - the employer can completely or partially refuse compensation for damage, so to speak, taking into account previous merits.

By agreement of the parties to the employment contract, compensation for damage by installments is allowed. In this case, the employee submits to the employer a written obligation to compensate for damages, indicating specific payment terms, or the payment schedule is indicated in the agreement itself (Example 9). With the consent of the employer, the employee may transfer equivalent property to compensate for the damage caused or repair the damaged property. The parties can agree not only on full, but also on partial compensation for damage - often for the organization this is still better than going to court and proving its case there.

If it was not possible to reach an agreement, then before going to court you need to send the employee a proposal for voluntary compensation for damage . It must contain a signature confirming receipt of this document, or you can document the fact of the employee’s refusal to receive it with the signatures of witnesses (Example 8). If the parties managed to reach an agreement that is documented, then there is no need to additionally draw up such a proposal for compensation, although some do.

Example 8 Offer to compensate for damage on a voluntary basis

Example 9 Agreement on voluntary compensation for harm

In accordance with Art. 240 of the Labor Code of the Russian Federation, the employer has the right, taking into account the specific circumstances in which the damage was caused, to fully or partially refuse to recover it from the guilty employee (such a decision is formalized by order , see Example 10). In addition, the employer must take into account the content of Article 239 of the Labor Code of the Russian Federation, according to which the employee’s financial liability is excluded in cases of damage due to:

• force majeure;
• normal economic risk;
• extreme necessity or necessary defense (the text of the order in this situation is shown in Example 10.1 - here the employee was even awarded);
• failure by the employer to fulfill the obligation to provide appropriate conditions for storing property entrusted to the employee.

Example 10 Order to refuse to recover damages from an employee

Example 10.1 Changing the text of the order from Example 10 (replaceable fragments are highlighted with colored fill)

Opinion

Vera Iritikova, head of the document management department of VNIIDAD, member of the Guild of Documentation Managers

The article is extremely interesting because it presents in detail the process of forming a set of documents (a functional document set) for one of the management situations. A functional document complex is always considered as a set of interrelated and interdependent documents that arise in the process of implementing a specific management situation. Moreover, the execution of one document (recording the fact of violation in the memo of the head of the packaging department of Romashka LLC, the initiative document) entails the creation of a subsequent “chain” of interrelated documents and is based on a single organizational basis (approved internal labor regulations of Romashka LLC). A functional document complex may include documents of different types and varieties, belonging to different systems and subsystems of documentation and even having different shelf life, which presupposes their subsequent formation into different cases, when the entire management situation is successfully resolved and the documents are executed. But the execution of document details in this “chain” must be uniform and comply with established rules.

Let's look at the rules for formatting details, where errors are most often made, in those interrelated documents that are given as examples in this article.

The text of Section 7 of the Internal Labor Regulations (Example 3) provides for the creation of a commission to establish the presence of fault and the amount of damage caused (hereinafter referred to as the VU Commission), which presupposes both the creation and organization of its work at the location of Romashka LLC, as stated in the Charter organizations. Based on the officially registered location, the requisite “place of preparation or publication of the document” up, which in organizational, administrative, some reference, information and other internal documents of the organization is formalized simply as the name of the geographical location, taking into account the accepted administrative-territorial division (GOST R 6.30- 2003). Props "Mr. Perm" should be uniformly formalized in an order (Examples 2, 7 and 10), act (Examples 5 and 6), requirement (Example 4), proposal (Example and agreement (Example 9). And only in an internal memo the detail "place compilation or publication of a document” is not formalized, since it is not included in the details of the standard form for a document of this type.

Example 11 shows the correct design of the title part (the so-called “header”) of the document. In accordance with the recommendations of GOST R 6.30-2003, in a requirement, proposal, notification, the place of preparation of the document must be written on a separate line below the date of preparation in the form of the name of the geographical location. But in practice, these types of documents are often sent to employees of an enterprise by mail (especially if they are absent from work), so there is a need to prepare these types of documents on the official letterhead of the organization indicating reference data, i.e. a full postal address to which the employee could send a response (and not just “Perm”, as in the general form), and telephone numbers. In this case, the design options shown in Examples 4 and 8 are possible, which resemble a letter form, which is acceptable. Please pay attention to one more point: if the name of the unit (VU Commission) is indicated as an integral part of the “author of the document” attribute and is written as a separate line under the name of the organization, then it is not duplicated in the position of the signatory of the document (the “signature” attribute) (compare Examples 11 and 4).

In acts and protocols, if necessary, the place of compilation or publication of the document is subject to specification, down to the name of the specific room, its number (for example, workshop No. 3 or room No. 17). Compare Examples 5 and 6.

The status of the VU Commission (permanently operating or created to solve specific, one-time tasks) affects the availability and design of indices, i.e. registration numbers , documents that are created in the process of its activities:

• If the VU Commission is permanent, then its acts, as well as minutes of meetings, are registered (identified):
  within her term of office and
• within their document flows (in each document flow - in gross order, i.e. separately in order of act numbers and meeting minutes numbers).

In this case, the index is usually written as an integer, without fractions or oblique lines. Naturally, the VU Commission will need to keep logs of minutes of meetings and acts, and organize these documents into files (responsibility rests with the chairman of the VU Commission or the secretary, if there is one).

The same rules are observed when indexing requirements, notifications, proposals, which the VU Commission can draw up as internal documents of the organization:

• If the VU Commission is permanent, then its proposals, demands and notifications can, in turn, constitute one or three separate document flows (depending on the number of documents of these types compiled within the commission’s term of office), and their indexing/registration must be carried out within its flow in gross order.
• If the VU Commission is a “one-time” one, then no indexes are placed on its demands, notifications and proposals. Of course, in this case, there may be exceptions, for example, when the commission has to send repeated notifications, they can be identified by dates, or they can begin to be numbered.

By the way, please note: within the framework of one management situation, it is possible to formalize a request from the VU Commission to an employee (as in Examples 11 and 4), and then proposals to him, but on behalf of the entire organization, signed by the general director or his deputy (as in Example 8) . Such documents will have different indexing (numbering) lines, because compiled and processed within different document flows.

In Example 11 we show how to draw up proposals, demands, notifications and acts using the general form of the organization, in which the following are entered on the free space intended for registration of the name of the type of document: PROPOSAL, DEMAND, NOTICE or ACT. In this case, after the name of the organization in the general form, it is necessary to indicate the name of the unit / body that is the author of the document (in our case, this is the VU Commission).

It is recommended that the employee’s notes on familiarization or receipt of notification (requirements, etc.) be drawn up according to the visa model, i.e. with the full name of the position, specialty or profession, a personal signature and a transcript of the signature, which is also recommended to be done in your own hand (do not print in advance in the document) and with the date of receipt or review personally affixed by the employee (see Example 11 on the next page).

All these features of documenting the activities of the VU Commission should be established in a small regulatory document, for example, the Regulations for the work of the VU Commission, especially if it is created in an organization with permanent status. The publication of such regulatory documents has become a necessity in modern organizations, since it is impossible to provide for all specific cases of documentation and identification of documents in the Instructions for Office Work (a document of a sufficiently high level). The general rules of registration in each management situation need clarification and specification. And their identification in the system of office work and management of the organization as a whole is based on the correct execution of document details.

Example 11 Requirement issued using the organization’s general form with details located in the corner

Rossol S.V., corporate consultant, Kalinin and Partners Law Firm Source: United Editorial Board of Business Magazines

How to collect the remaining debt from a resigned employee?

An employee may resign from the company before he repays the debt for the damage caused. The employer does not have the right to refuse to dismiss him on the basis of the presence of an outstanding debt. Such actions are a violation of the law and the employee has the right to go to court. In particular, this is possible on the basis that the employer did not issue a work book to the employee in a timely manner, which became an obstacle to employment at a new place of work. In this case, the court will make a decision obliging the employer to pay the employee compensation in the form of his average earnings for the time until he was issued a work book.

However, the employer also has the right to go to court if the resigned employee refuses to pay the remainder of the compensation for damage. The fact of dismissal does not relieve the employee of this obligation.

What is property damage and how to punish an employee for damaging company property?

The law defines property damage as complete or partial damage to someone else's property. The company's fixed or working capital suffers significant damage, making their further use at the enterprise impossible or extremely difficult.

Damage may include the following:

1. deterioration of the company's property;
2. reduction in the amount of fixed or working capital;
3. the emergence of a need for additional payments to the state or contractors (for example, fines to suppliers).

Important! It does not matter whether the damaged valuables are owned by the hiring company or rented.

Liability arises for damage caused to property knowingly or through negligence. It can be expressed in the following forms:

1. criminal (if a crime is discovered);
2. administrative (if the amount of losses incurred does not exceed 2,500 rubles);
3. disciplinary (the management of the company determines the punishment of the culprit in the form of a reprimand, dismissal, etc.);
4. material (a set amount is recovered from the guilty employee to cover the damage caused).

Financial liability does not exclude the possibility of criminal and disciplinary liability. Even if the employee’s employment contract is terminated, he is obliged to compensate the losses of the former employer in accordance with current legislation.

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Criminal prosecution is possible in cases where it is proven that methods dangerous to the life and health of people were used for damage. Aggravating circumstances include the commission of an act by an organized group of persons or hooligan motives for the crime.

The employer's right to refuse compensation for damages

Article 240 of the Labor Code of the Russian Federation gives the employer the right to release the employee from financial liability. You need to understand that this is the employer’s right, and not his obligation.

In practice, they are usually released if the damage is insignificant, the employee is in a difficult financial situation and has dependent minor children.

Refusal to collect compensation from an employee must be made in writing. This can be done both before the trial and during it.

Conditions for releasing an employee from liability

There are several situations in which an employee is not obliged to compensate for material damage to the employer:

• if the incident resulting in loss or unintentional damage to the employer’s property occurred as a result of force majeure. For example: natural disaster,
• terrorist attack,
• strike;

In addition, material damage that was caused under conditions of normal economic risk is not subject to recovery. That is, the employee properly performed his job duties, while exercising caution and care, taking measures to prevent damage, which nevertheless was caused. For example, this can happen when new work methods or technological processes are introduced into production.

Forced recovery of damages

If it is impossible to resolve the conflict by agreement of the parties, the employer has the right to file a lawsuit. The employee will be held financially liable regardless of whether criminal, administrative or disciplinary measures are applied to him. That is, one type of punishment does not exclude another.

The law identifies the following grounds for an employer to go to court:

• The employee’s refusal to repay the debt voluntarily.
• It is impossible to withhold the amount of compensation from the employee’s salary, since the amount of compensation is more than his average monthly salary.
• Delay in issuing an order to withhold compensation. Such an order must be adopted within a month from the date of registration of the results of the internal audit.
• Refusal of an employee to pay compensation after his dismissal from this company.

In cases of recovery of damages, the law establishes a three-year limitation period. The employer has the right to go to court during this time. But if there is less than a month left before the expiration of the statute of limitations, the court will not accept the statement of claim.

However, there is an exception - if there is evidence that the statute of limitations was missed for a good reason, it will be possible to file an application with the court later.

Types of damage to workers' health

Work injury is an injury received as a result of violent external influence for objective reasons related to professional activity. The reason may be:

• the actions of the person himself or other people;
• psychological factors (for example, conflict situations);
• mechanical, thermal, chemical energy;
• sudden excessive strain on the employee's strength.

If a person has a heart attack after being told he has been fired, the court will not consider it a work-related injury.

Occupational disease is health damage resulting from unfavorable environmental factors during work activity.

These and other problems may be collectively known as “work accidents.”

Deterioration of employee health in the workplace

Responsibility for violation of labor safety rules

Responsibilities of the employer in the event of an accident

How to file a claim?

The procedure for going to court includes the following steps:

• Drawing up an application. It indicates the details of the court, the applicant (employer), the employee and all the circumstances of the incident. It is important to document the employee’s guilt and indicate the amount of compensation, also justified by official documents.
• Payment of state duty.
• Submitting an application, documents on the case and a receipt for payment of the fee to the court.
• A court hearing during which the employer must prove the employee’s guilt by providing all the documents he has.

When comparing this method of collecting compensation with a voluntary agreement between the parties, it becomes clear that the agreement is beneficial for both the employer and the employee, since it allows you to avoid unnecessary waste of time and money. In addition, the trial often turns out to be a psychologically difficult process.