Industrial relations have different stages. Sometimes a team develops perfect mutual understanding, but not always everything happens without incident. The offices are filled with modern technology, and the workshops use expensive equipment. Even at home, it happens that a glass of tea accidentally tips over onto the computer keyboard and you have to replace it. What to do with office supplies; is the employee obliged to compensate the employer for the loss caused to him due to negligence or imprudence?
Concept of financial responsibility
When the founders form a joint venture, they jointly purchase devices on which their hired staff will work. Money is wasted, but the owners hope that everything will pay off thanks to the conscientious work of the employees.
In their plans, they take into account the depreciation of equipment, but do not expect that the time will come when the employee will be obliged to compensate the employer for the losses caused to him for damaged or stolen equipment. Such an expense item should be included in case the problem cannot be corrected using the rules from the Labor Code of the Russian Federation (Article 39 is devoted to this).
If a specialist is entrusted with instruments and technical devices, it is necessary to conclude a liability agreement when hiring. Such protective measures will relieve the entrepreneur of many worries and worries. There will be no need to think about how the employee is obliged to compensate the employer for the material damage caused to him. The agreement will describe all possible cases in advance.
How to dispute
You can challenge an employer’s order to hold you financially liable through a court located at the location of the legal entity or individual for whom the “violator” works. At the same time, employees are not charged a state duty for filing a claim, which cannot be said about employers. They will have to pay to the state treasury an amount that is determined individually for each case in accordance with clause 1. Part 1 Art. 333.19 Tax Code of the Russian Federation.
You can also complain about an employer for non-compliance with labor laws to the labor inspectorate and the prosecutor's office.
When an employee is not obliged to compensate for damage
The employee is not obliged to compensate the employer for the damage caused to him, the Labor Code confirms this if the following occurs:
- flood;
- fire;
- earthquake;
- terrorist act.
When, during constant monitoring of a worker, it becomes clear:
- the work was performed according to the terms of the job description;
- actions were performed with care and care for the entrusted equipment;
- measures were taken to prevent losses.
As a result, a shortage of materials was discovered, the losses are attributed to an economic risk, which does not provide for liability for losses.
Perhaps the employee was trying to eliminate a danger that threatened the lives of other people and save the property of his employer during an accident in which a stranger was at fault. In this case, money cannot be demanded from him for unforeseen damage. As in the case of violence, an attack by criminal elements, where a specialist had to defend himself, as a result of which property was damaged.
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 .
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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 :
- 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.
- 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:
- 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.
- 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.
How to determine malicious intent?
Guilt is considered proven when there are signs of deliberate intent to cause damage to the organization’s property. The violator of the order will have to pay damages for careless handling of the equipment, provided that he agrees with the claims of his superiors.
Malice is determined by the following criteria:
- the citizen planned in advance to commit actions with negative consequences;
- the specialist was fully conscious, understood what he was doing, allowing damage or reducing the amount of materials;
- compensation by the employee for damage to the employer was not part of his plans; all actions were carried out specifically according to preliminary calculations.
Each point must be documented by the manager; the court will not accept or consider unfounded accusations.
Conditions for bringing an employee to financial liability
In Art. 233 of the Labor Code of the Russian Federation and clause No. 52 indicate that the employee’s liability for damage caused to the employer arises when five conditions apply simultaneously.
Direct actual damage to the employer's property
Financial liability extends to losses that can be accurately calculated. In this case, the penalty is not imposed on lost profits.
According to Art. 238 of the Labor Code of the Russian Federation, direct actual damage is subject to compensation . It is expressed in:
- A real decrease in the volume or deterioration in the condition of the employer’s available property (including those transferred to him by third parties under personal responsibility).
- Expenses and excess payments made by the employer for the purchase and restoration of property or for compensation of damage caused by the employee to third parties.
Common types of actual damages are:
- lack of funds or property assets;
- payments for forced downtime or absenteeism;
- damage to materials, equipment and costs for their repair;
- the amount of the fine paid by the employer as a result of the employee’s guilty actions.
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Damage caused by the employee to third parties is all payments made by the employer to compensate for the damage. The employee's liability is limited to these amounts.
Evidence of the fact of damage is the act of its discovery, the employee’s explanatory note, inventory materials, and the damaged property itself.
Illegality of action
It is expressed in the employee’s failure to fulfill his official duties . These include:
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- violation of internal labor regulations;
- non-compliance with the terms of the employment contract;
- ignoring the provisions of the job description.
Negligence and frivolity
Careless handling of construction materials or tools or other devices is a punishable offense. No one will suffer losses from putty or cement being thrown away because the painter takes long smoke breaks while working. The employee is obliged to compensate the employer for damage caused to him due to negligence.
Such actions are determined by the following criteria:
- full awareness that the offense is wrong;
- there was hope that time would hide the shortcomings;
- I didn’t think about the occurrence of losses, but no one canceled the duties and prudence in any position.
In our country there is constitutional equality, so everyone can file a claim in court if it is impossible to resolve the situation peacefully, as well as protest it. To protest that the employee is obliged to compensate the employer for the damage caused to him in the form of monetary compensation, reliable evidence is also needed.
The employee's fault for causing the damage
It can be expressed in the form of intent or negligence (negligence, frivolity).
These concepts are deciphered in paragraph 3 of Art. 243 Labor Code of the Russian Federation.
Signs of intent to cause damage are:
- the employee’s understanding that he is committing illegal actions;
- foreseeing the possibility of causing property damage;
- conscious assumption of the consequences that have occurred or the desire to provoke them.
Negligence is established if the employee understood the illegality of his actions, but:
- expected to prevent the consequences, although he foresaw the risk of their occurrence;
- did not foresee the risk of consequences, having such an opportunity and being obliged to do so.
The cause-and-effect relationship between the employee’s actions and the occurrence of damage
The employer must prove that it suffered damage directly due to the employee’s unlawful actions and not for other reasons.
Example: the commission, during its own investigation, found that the warehouseman did not check whether the alarm system in the warehouse was connected. There are 2 possible scenarios for the situation:
- If the theft occurred while the alarm was not activated, a cause-and-effect relationship is established.
- If the alarm was turned on, but a crime was committed anyway, a cause-and-effect relationship is not confirmed.
Full refund
The employee is obliged to compensate the employer for direct damage caused to him in full, without taking into account the amount of his wages in the following cases:
- approved the law for this case full compensation;
- valuables were transferred to the employee by power of attorney or contract;
- intentional causing harm;
- damage to property was caused while under the influence of alcohol or drugs;
- a criminal fact was discovered, after a trial a verdict was passed;
- a penalty was imposed for an administrative violation;
- there was a disclosure of commercial, medical, state secrets;
- theft or other illegal actions were detected.
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Resolution on the collection of enforcement fees
When losses are withheld without trial or investigation, within the limits of wages, it is the manager's responsibility to conduct an internal investigation of the incident. There is a legal procedure:
- the enterprise assigns an inventory;
- create a commission;
- a group of people sorts out documents;
- the violator submits a written explanation.
Labor Code of the Russian Federation Art. 246 gives an idea of the order in which the amount that the violator is obliged to repay is calculated. Ideally, the parties to the conflict enter into an agreement on compensation for harm.
Agreement on full financial responsibility
An agreement on full financial liability can be concluded with employees of special positions or employees performing special work. These positions and jobs are listed in Resolution No. 85 of the Ministry of Labor of Russia dated December 31, 2002. For example, the list includes the following positions:
- delivery driver;
- salesman;
- cashier;
- warehouse manager, etc.
An agreement on full financial liability can be concluded with managers, their deputies and chief accountants (Part 2 of Article 243 and Part 1 of Article 277 of the Labor Code of the Russian Federation).
Cases of full financial liability are listed in Article 243 of the Labor Code. In particular, these include the following situations:
- the damage was caused while under the influence of alcohol, drugs or other toxic substances;
- causing damage while the employee was not performing his job duties;
- an employee disclosed a trade secret.
Maximum deduction amount
In case of full financial liability, the employee compensates the entire amount of damage. But even in this case, it is necessary to calculate the maximum amount of deduction for each month, since more than 20% of the salary cannot be withheld (Part 1 of Article 138 of the Labor Code of the Russian Federation). An example of the calculation is given above (example 2).
Collection procedure
It is possible to recover full material damage from an employee by agreement of the parties or by force. If the amount of damage exceeds the employee’s average monthly salary, and he himself refuses to compensate it voluntarily, then the debt can only be recovered in court under Part 2 of Art. 248 of the Labor Code. The employee himself can go to court if he does not agree with the employer’s demands.
The procedure for collecting full material damage involves going through the following stages:
- The fact of damage, its size and causes are established . For these purposes, the employer may create a special commission under Part 1 of Art. 247 Labor Code.
- The employer demands the employee to provide him with a written explanation of the reasons for the damage (such a demand with the results of the inventory must also be in writing and handed to the employee against signature).
- If the employee refuses to provide an official answer , then a separate report is drawn up regarding this under Part 2 of Art. 247 Labor Code.
- The amount of damage is calculated and brought to the attention of employees.
- Damages are being recovered.
Recovery of damage within the limits of average earnings is made on the basis of an order issued by the employer. It is formed no later than one month from the date the amount of damage caused is determined. The starting point may be the date of the inventory. If the month period is missed, then collection is made only in court under Part 1 of Art. 248 of the Labor Code.
The employer must adhere to the specified procedure for collecting damages, regardless of the voluntary or compulsory procedure for collecting damages. But receiving compensation through the court has certain features.
Limited liability
In most cases, the employee’s financial liability is limited (Article 241 of the Labor Code of the Russian Federation). That is, the employee is obliged to reimburse an amount that does not exceed his average monthly earnings.
We collect only average monthly earnings
The Labor Code does not contain a list of situations in which an employee is liable only within the limits of his average monthly earnings. In practice, employees bear limited financial liability in the following cases:
- in case of damage to equipment, tools, materials;
- incorrect preparation of documents when this causes material damage to the company (for example, short delivery of goods);
- the company did not receive money due to the employee’s negligence in his official duties;
- the company paid a fine for its employee.
Calculation of average monthly earnings
Average monthly earnings is the maximum amount that can be recovered from an employee with limited financial liability. How to calculate it?
The legislation does not provide for a separate methodology for calculating average monthly earnings for situations where it needs to be recovered from an employee for damage caused by him.
In cases where it comes to preserving the employee’s average earnings, the accountant uses a single calculation procedure based on the average daily (hourly) earnings, which is established:
- Article 139 of the Labor Code;
- Regulations on the specifics of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation dated December 24, 2007 No. 922 (hereinafter referred to as the Regulations).
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When calculating the amount of material damage, it is necessary to use the general rules, since the accountant has no other calculation option.
The total amount of the employee’s wages for the 12 months before the month of signing the withholding order must be divided by the number of days (hours) worked in this period. Multiply the resulting value by the number of working days (hours) according to the schedule of the guilty employee in the month the order was signed (clause 4 of the Regulations).
Example 1. Calculate average monthly earnings
In November 2015, a laptop was lost due to the fault of an employee. An internal investigation was conducted. The employee admitted his guilt. The amount of material damage was estimated at 27,150 rubles.
An agreement on full financial liability has not been concluded with the employee. The fact of transfer of the laptop has been recorded. This means that you can recover no more than his average monthly earnings.
The order to recover damages from the employee was signed in November 2015.
The employee works a 40-hour, five-day work week. The billing period is from November 1, 2014 to October 31, 2015, of which 245 days were worked. The salary for these days amounted to 330,0000 rubles.
It is necessary to calculate the average monthly earnings.
Solution
The employee has daily working hours. Therefore, to calculate the average monthly earnings, you first need to determine the average daily earnings.
The average daily earnings will be 1346.94 rubles. (RUB 330,000: 245 work days).
The order to recover damages was signed in November 2015. This month has 20 working days. This means that the average monthly earnings will be 26,938.8 rubles. (RUB 1,346.94 × 20 working days).
The amount of material damage is RUB 27,150.
The company will not be able to retain it in full, only 26,938.8 rubles. However, other restrictions must be observed.
Maximum deduction amount per month
In addition to the general limit on the amount of deductions, there is one more limitation. For each salary payment, you cannot withhold more than 20% of its amount (Part 1, Article 138 of the Labor Code of the Russian Federation). If the amount of damage is greater, the collection process will take several months.
Only in certain cases can you recover more than 20% of your salary. In particular, up to 70% of the salary can be withheld when collecting damage caused by a crime (Part 3 of Article 138 of the Labor Code of the Russian Federation). But the fact of the crime is established by the court (Part 2 of Article 8 of the Code of Criminal Procedure of the Russian Federation).
The amount of deduction is calculated based on the employee’s salary minus personal income tax (Clause 1, Article 99 of the Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings”).
Example 2. We calculate the limit on the amount of deduction for the month
Let's continue with example 1. The amount of material damage is 27,150 rubles. The company has the right to withhold only RUB 26,938.80. How much can be withheld from an employee if his salary for November was 57,000 rubles?
He is not entitled to standard tax deductions.
Solution
Maximum deduction amount
First you need to calculate personal income tax. It is equal to 7410 rubles. (RUB 57,000 × 13%).
From income for November, no more than 9,918 rubles can be withheld from an employee. .
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Actual withholding amount
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9918 rub. < RUB 26,938.8 An accountant can only withhold 9,918 rubles from an employee’s salary for November 2015. The remaining amount is 17,020.8 rubles. (RUB 26,938.80 – RUB 9,918) can be withheld from your salary for the following months.
What is the procedure for repaying the damage caused?
Article 235 of the Labor Code of the Russian Federation establishes the obligation of the company’s management to compensate for losses caused to the employee’s property in full.
To determine the amount of compensation, one should be guided by the market prices of the damaged item.
Holding liable is possible provided that a causal connection is established between the damage caused and the employer’s actions .
The company's management can avoid punishment if it is proven that they are not guilty.
In order to bring the employer to financial liability, it is important to register the fact that he committed an unlawful action , during which damage was caused to the employee. For this purpose, appropriate documentation is drawn up. The procedure for compensation for damage caused to an employee by an employer involves the preparation of other papers necessary for registration of this process.
Is it possible to reduce the amount of compensation for damage caused?
Yes, according to Article 250 of the Labor Code of the Russian Federation, as well as paragraph 16 of the RF Supreme Court Order No. 52 dated November 16, 2006, the court can reduce the amount of damage, taking into account:
- the degree and form of the employee’s guilt;
- his financial situation;
- marital status;
- other circumstances.
Only those persons who caused damage by a crime committed for personal gain cannot count on a reduction.
A reduction in size is permissible for both cases of full and limited, collective and individual liability. At the same time, a decrease in the penalty from one or more members of the team cannot be the basis for an increase in the penalty from other members of the team.
Watch the video of a large seminar on financial responsibility for HR specialists, which covers many of the subtle aspects of holding an employee accountable:
