In accordance with the requirements of the Labor Code of the Russian Federation, the employee is obliged to comply with the rules of internal work schedule organization and work discipline. The employer of the Labor Code of the Russian Federation is granted the right to bring employees to disciplinary responsibility in the manner established by the Labor Code of the Russian Federation and other federal laws. The employer is obliged in accordance with the Labor Code of the Russian Federation, laws, other regulatory legal acts, a collective agreement, agreements, local regulations containing labor law norms, an employment contract to create the conditions necessary for employees to comply with labor discipline (Article 189 of the Labor Code of the Russian Federation).
Labor discipline is obligatory obedience for all employees to the rules of conduct determined in accordance with the Labor Code of the Russian Federation, other laws, a collective agreement, an agreement, an employment contract, and local regulations of the organization.

Disciplinary responsibility of an employee

For committing a disciplinary offense, that is for non-performance or improper performance by the employee due to his fault assigned to him job duties, the employer has the right to apply to the employee (employees) the disciplinary sanctions listed in Art. 192 TKRF:
* note;
* reprimand;
* dismissal for appropriate reasons.
Federal laws, charters and regulations on discipline for certain categories of workers may also provide for other disciplinary actions. In some cases, a disciplinary sanction may also follow on grounds that are not in the Labor Code of the Russian Federation.
An example the establishment by federal law of an additional basis for the disciplinary dismissal of employees is paragraph 4 of Art. 9 federal law"On emergency services and the status of rescuers": employment contract with a rescuer may be terminated at the initiative of the administration of the emergency rescue service, emergency rescue team in the event of a single unreasonable refusal of the rescuer to participate in the work to eliminate emergency situations.
A disciplinary offense is a failure to perform or improper performance by an employee without good reason of the labor duties assigned to him (Rules of internal labor regulations, job descriptions, regulations, rules of labor protection and safety, equipment and safety of operation of equipment, as well as orders, instructions, written instructions from the administration, the performance of which is mandatory for the employee and which do not contradict the labor function stipulated job description, operating characteristic or employment contract).
Worker cannot be disciplined for refusal:
- from performing work in the event of a danger to his life and health due to violation of labor protection requirements;
- performance of heavy work and work with harmful and (or) dangerous working conditions not provided for by the employment contract.
When imposing a penalty, the employer must take into account the severity of the employee’s misconduct, the circumstances under which it was committed, the employee’s previous behavior, his attitude to work.

Employee liability

Material liability of the employee to the employer

Chapter "39." Employee liability
Article "238." Liability of the employee for damage caused to the employer
The employee is obliged to compensate the employer for the direct actual damage caused to him. Unreceived income (lost profit) is not subject to recovery from the employee.
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.
Article "239." Circumstances excluding material liability of the employee
The material liability of the employee is excluded in cases of damage due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer's failure to fulfill the obligation to ensure proper conditions for the storage of property entrusted to the employee.
Article "240." The right of the employer to refuse to recover damages from the employee
The employer has the right, taking into account the specific circumstances under which the damage was caused, to fully or partially refuse to recover it from the guilty employee. The owner of the property of the organization may restrict the specified right of the employer in cases provided for by federal laws, other regulatory legal acts Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation, regulatory legal acts of local governments, founding documents organizations.
Article "241." Limits of liability of an employee
For the damage caused, the employee shall be liable within the limits of his average monthly earnings, unless otherwise provided by this Code or other federal laws.
Article "242." Full financial responsibility of the employee
The full liability of the employee consists in his obligation to compensate the direct actual damage caused to the employer in full.
Liability in the full amount of the damage caused may be imposed on the employee only in cases provided for by this Code or other federal laws.
Employees under the age of eighteen bear full financial responsibility only for intentional infliction of damage, for damage caused in a state of alcoholic, narcotic or other toxic intoxication, as well as for damage caused as a result of a crime or administrative offense.
Article "243." Cases of full liability
Liability in the full amount of the damage caused is assigned to the employee in the following cases:
"1)" when, in accordance with this Code 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;
"2)" shortage of valuables entrusted to him on the basis of a special written agreement or received by him under a one-time document;
"3)" intentional damage;
"4)" causing 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 government agency;
"7)" disclosure of information constituting a legally protected secret (state, official, commercial or other), in cases stipulated by federal laws;
"8)" causing damage not in the performance of work duties by the employee.
Liability in the full amount of the damage caused to the employer can be established by an employment contract concluded with the deputies of the head of the organization, the chief accountant.
Article "244." Written agreements on the full liability of employees
Written agreements on full individual or collective (team) liability (clause 2 of part one of Article 243 of this Code), that is, on compensation to the employer for damage caused in full for the lack of property entrusted to employees, may be concluded with employees who have reached the age of eighteen years and directly serving or using monetary, commodity values ​​or other property.
The lists of works and categories of employees with whom these contracts may be concluded, as well as standard forms of these contracts, are approved in the manner established by the Government of the Russian Federation.
Article "245." Collective (brigade) liability for damage
When jointly performed by employees certain types work related to the storage, processing, sale (vacation), transportation, use or other use of the values ​​transferred to them, when it is impossible to distinguish between the responsibility of each employee for causing damage and conclude an agreement with him on compensation for damage in full, a collective (brigade) may be introduced material liability.
A written agreement on collective (team) liability for damage is concluded between the employer and all members of the team (team).
Under an agreement on collective (brigade) material liability, values ​​are entrusted to a predetermined group of persons, which is fully liable for their shortage. To be released from liability, a member of the team (team) must prove the absence of his guilt.
In case of voluntary compensation for damage, the degree of guilt of each member of the team (team) is determined by agreement between all members of the team (team) and the employer. When recovering damages judicial order the degree of guilt of each member of the team (team) is determined by the court.
Article "246." Determining the amount of damage caused
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 less than the value of the property according to accounting taking into account the degree of wear and tear of this property.
The federal law may establish a special procedure for determining the amount of damage to be compensated caused to the employer by theft, deliberate damage, shortage or loss of certain types of property and other valuables, as well as in cases where the actual amount of damage caused exceeds its nominal amount.
Article "247." The duty of the employer to establish the amount of damage caused to him and the reason for its occurrence
Before making a decision on compensation for damages by specific employees, the employer is obliged to conduct an audit to determine the amount of damage caused and the reasons for its occurrence. To conduct such an inspection, the employer has the right to create a commission with the participation of relevant specialists.
Requesting a written explanation from the employee to establish the cause of the damage is mandatory. In case of refusal or evasion of the employee from providing the specified explanation, an appropriate act is drawn up.
The employee and (or) his representative have the right to get acquainted with all the materials of the inspection and appeal against them in the manner prescribed by this Code.
Article "248." Damage recovery procedure
Recovery from the guilty employee of the amount of damage caused, not exceeding the average monthly earnings, is carried out by order of the employer. The order 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.
If the one-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 to be recovered from the employee exceeds his average monthly earnings, then recovery can only be carried out by the court.
If the employer fails established order recovery of damages, the employee has the right to appeal against the actions of the employer in court.
An employee who is guilty of causing damage to the employer may voluntarily compensate for it in whole or in part. By agreement of the parties to the employment contract, compensation for damage with installment payment is allowed. In this case, the employee submits to the employer a written obligation to compensate for the damage, indicating specific dates payments. In case of dismissal of an employee who gave a written obligation to voluntarily compensate for damage, but refused to compensate for the specified damage, the outstanding debt is recovered in court.
With the consent of the employer, the employee may transfer to him equivalent property to compensate for the damage caused or repair the damaged property.
Compensation for damages is made regardless of bringing the employee to disciplinary, administrative or criminal liability for actions or inaction that caused damage to the employer.
Article "249". Reimbursement of costs associated with employee training
In the event of dismissal without good reason before the expiration of the period stipulated by the employment contract or agreement on training at the expense of the employer, the employee is obliged to reimburse the costs incurred by the employer for his training, calculated in proportion to the time actually not worked after the end of the training, unless otherwise provided by the employment contract or learning agreement.
Article "250." Reduction by the labor dispute resolution body of the amount of damages subject to recovery from the employee
The labor dispute resolution body may, taking into account the degree and form of fault, the financial situation of the employee and other circumstances, reduce the amount of damage to be recovered from the employee.
Reduction of the amount of damage to be recovered from the employee is not carried out if the damage was caused by a crime committed for mercenary purposes.

Unfortunately, in our time, disputes between employees and employers arise quite often, and one has only to “ask” google to give results for the query “employers' lawlessness” and the search engine will offer several hundred thousand results. This suggests that the topic of employer's responsibility is quite relevant and many people ask themselves questions every day about whether the employer acted lawfully in relation to them in this or that situation and how they can protect their rights. Naturally, this leads to the fact that the issue of responsibility is also acute among employers, whose rights are sometimes infringed no less.

Understanding this topic can be quite difficult and to protect your rights it is better to contact qualified lawyers. However, in general, everyone needs to navigate this issue, and in order to help both parties understand it, the Faculty of Medical Law has prepared a series of articles “Employer's Responsibility”.

In this article, we will look at general provisions regarding the liability of the employer to the employee. The rest of the articles can be found at the links below:

Article 419 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) contains an indication of bringing persons guilty of violating labor legislation to five types of liability. Among them, applicable to the employer, four can be distinguished (with the exception of the disciplinary one):

• material
• civil law
• administrative
• criminal

First of all, if we talk about the responsibility of the employer to the employee, then we mean material and civil liability. As for administrative and criminal liability, it arises from the employer to the state. However, often such liability arises just for violation labor rights worker. Therefore, in this series of articles, we will also briefly consider these two types of responsibility.

Disciplinary responsibility can only come from the employee, therefore, there is no place for it in the article.

General provisions on the liability of the employer are contained in section XI of the Labor Code of the Russian Federation. The essence of liability is obligations of a party to an employment contract(in our case, the employer), causing damage to the other party(in our case, an employee), repair this damage.

According to Art. 233 of the Labor Code of the Russian Federation for the onset of liability, the following conditions must be met:

• the presence of property damage to the injured party;
• unlawfulness of the action (inaction) that caused the damage;
• causal relationship between the illegal act and property damage;
• guilty of committing an unlawful action (inaction), unless otherwise expressly provided for by the Labor Code or other federal law.

Chapter 38 of the Labor Code considers four grounds for the occurrence of the liability of the employer:

1. unlawful deprivation of an employee of the opportunity to work,
2. damage to his property,
3. delayed salary and other payments,
4. causing moral harm to an employee.

Read more about the obligations and consequences for the employer caused by such circumstances in the articles "", "".

Another form of legal liability aimed at restoring the violated rights of an employee is civil liability. This type of employer's responsibility to the employee takes place in cases where he is responsible for the specified violation according to the norms of not labor, but civil legislation.

In this case, the mechanisms for protecting the rights of an employee are reflected in Articles 15 and 151 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) and consists in the following rules:

• An employee whose right has been violated may demand full compensation for the losses caused to him, unless the law or the contract provides for compensation for losses in a smaller amount.
• If a citizen has been inflicted moral harm (physical or moral suffering) by actions that violate his personal non-property rights or encroach on those belonging to a citizen intangible benefits, as well as in other cases provided for by law, the court may impose on the violator the obligation of monetary compensation for the specified harm.

As we can see, the civil liability of the employer, as well as material, consists mainly in the imposition of property sanctions on him. In this regard, these two types of responsibility are often confused and even combined. According to some legal scholars, material liability is, in fact, civil law (S.S. Alekseev, S.N. Bratus, R.O. Khalfina, etc.).

More about distinctive features material and civil liability of the employer to the employee you can read in.

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In addition to the workers themselves and trade union bodies, compliance with labor legislation and the rights of workers is also monitored by supervisory authorities. In this regard, employers sometimes have to answer for the committed offenses not only to employees, but also to the state.

Well, if you manage to get off with only one administrative punishment, for example, a fine. But there are cases when the violations of the employer are so great that guilty person may even be prosecuted.

The administrative responsibility of employers is established by the Code of the Russian Federation on Administrative Offenses (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation). An obligatory element of the occurrence of such liability is the presence of guilt.

Article 2.2 of the Code of Administrative Offenses of the Russian Federation distinguishes two forms of guilt:

• Intention - an administrative offense is recognized as committed 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;
• Negligence - an administrative offense is recognized as committed through negligence if the person who committed it foresaw the possibility of harmful consequences of his action (inaction), but without sufficient grounds, presumptuously counted on preventing such consequences or did not foresee the possibility of such consequences, although he should have could have foreseen them.

More about the main violations of employers in the field administrative law, as well as the sanctions provided for such offenses, you can read in the article "".

Criminal liability of the employer may occur in case of violation of the constitutional rights of citizens, prescribed in Art. 37 of the Constitution of the Russian Federation: “Labor is free. ... Forced labor is prohibited. ... Everyone has the right to work in conditions that meet the requirements of safety and hygiene, to remuneration for work without any discrimination ... Everyone has the right to rest. A person working under an employment contract is guaranteed the duration of working hours established by federal law, holidays and holidays paid annual leave...

It should be remembered that the basis of criminal liability is the commission of an act containing all the elements of a crime under the Criminal Code:

• the object is a public relation that is protected by the Criminal Code;
• the objective side is a set of signs that characterize the external manifestation of a crime (in particular, action / inaction, causation; time, place, situation and other detailed data);
• subject - an individual who commits a crime (medical worker);
• the subjective side is the mental attitude of a person to the socially dangerous act committed by him (guilt, motive and purpose). The guilt of a person can be in the form of intent (direct or indirect) or negligence (criminal frivolity or criminal negligence).

Unlike administrative offenses, the types of violations in criminal liability are more socially dangerous, therefore, in criminal liability, the sanctions against the employer are more stringent.

You can find a visual table showing the offenses of the employer and the articles of the Criminal Code of the Russian Federation, according to which criminal liability is provided for such violations, in the article "".

In order to understand in more detail the issue of the employer's responsibility to the employee, we recommend that you familiarize yourself with other articles of this section.

The Labor Code of the Russian Federation stipulates liability for violation of labor laws for employees and employers. Read this article to find out what and in what cases penalties are applied.

Which article of the Labor Code of the Russian Federation regulates the issues of bringing to responsibility

According to Art. 419 of the Labor Code of the Russian Federation, those guilty of violating labor rights are subject to disciplinary and / or material liability in the manner established by labor legislation or other federal law. It is also allowed to bring the perpetrators to administrative and criminal liability in the manner prescribed by federal laws.

Types of liability for violation of labor laws

In the Russian Federation, the following types of liability for violation of labor laws apply:

1. Disciplinary - occurs for employees for violation of the labor schedule, which is a disciplinary offense. Expressed in the form of a disciplinary sanction.
2. Material - occurs for employers and employees in the event of damage to the injured party and consists in the obligation to compensate for the damage. Unlike the situation with an employee, the employer may be required to compensate not only the actual damage, but also the amount of lost profits.
3. Administrative - occurs for the head and other officials who have committed administrative offenses. Violators are subject to administrative punishment in the form of a fine.
4. Criminal - applies to leaders who commit the most serious violations of the Labor Code of the Russian Federation. The perpetrators may be temporarily banned from holding a number of positions or conducting certain activities.

It is worth noting: there is also civil liability for violations of labor laws. It is in many ways similar to liability, however, unlike the latter, it is regulated not by the Labor Code, but by federal laws and Civil Code RF. Civil liability provides for the head of the need to compensate the organization or employees for losses caused by his guilty actions.

Examples of bringing to different types of responsibility

Let us consider in more detail, for which violations certain types of liability are applied and what penalties are provided.

Disciplinary responsibility

Disciplinary liability for an employee occurs when a disciplinary offense is committed. This is the failure or improper performance of official duties due to the fault of the employee. According to par. 1 st. 192 of Law No. 197-FZ, the following types of penalties are permissible:

• comment;
• rebuke;
• dismissal for appropriate reasons.

Some categories of workers may be subject to other types of disciplinary sanctions. For them, there are charters and regulations on discipline established by federal laws (Regulations on the discipline of railway transport workers of the Russian Federation, etc.).

Some enterprises introduce fines for being late, non-compliance with the internal dress code. Such sanctions are illegal. In para. 4 tbsp. 192 of Law No. 197-FZ there is an indication of a ban on the use of disciplinary sanctions that are not specified in the Labor Code of the Russian Federation, charters and regulations on discipline established by federal laws.

According to par. 5 st. 193 of Law No. 197-FZ, it is allowed to apply only 1 disciplinary punishment for each violation. The type of punishment is chosen based on the severity of the offense and the circumstances of the incident.

Bringing an employee to disciplinary liability for violation of labor laws in 2020 is not a mandatory measure. The employer has the right not to apply the penalty at his own discretion (paragraph 1 of article 192 of law No. 197-FZ).

Before applying a disciplinary sanction, the employer must request an explanation in writing from the employee. If the employee refuses to give an explanation, this will not be an obstacle to the application of the penalty. Disciplinary action can be applied no later than 1 month from the date of discovery of the misconduct and no later than 6 months from the day the misconduct was committed, and based on the results of an inspection or audit - no later than 2 years from the date of its commission.

Material liability

The financial manager to the company is obliged to fully compensate for the direct actual damage (part 1 of article 277 of law No. 197-FZ). The head also compensates the legal entity for losses that arose through his fault.

The liability of the employer for violation of labor legislation in relation to the employee arises when:

• unlawful deprivation of an employee of the opportunity to perform job responsibilities(Article 234 of Law No. 197-FZ);
• causing property damage to an employee (Article 235 of Law No. 197-FZ);
• delay in the payment of wages or other due payments employee (Article 236 of Law No. 197-FZ). Employer's liability for late payment wages read ;
• causing moral harm to an employee (Article 237 of Law No. 197-FZ).

Depending on the circumstances of the damage, the employer has the right to decide not to recover it on the basis of Art. 240 of Law No. 197-FZ.

Administrative responsibility

Additional fact

Each manager has information about the personal data of his employees. Disclosure of this information may also lead to punishment of the official. He can be brought to administrative, material, and even criminal liability. Read more about the responsibility for the disclosure of personal data by the employer.

The Code of Administrative Offenses provides for administrative liability for violation of labor laws. Administrative violations include the following:

• violation of the Labor Code of the Russian Federation and labor protection legislation (Article 5.27 of the Code of Administrative Offenses);
• evading participation in negotiations on the signing of a collective agreement or violation of the term for its conclusion (Article 5.28 of the Code of Administrative Offenses);
• failure to provide information necessary for conducting collective bargaining and organizing control over compliance with the terms of the collective agreement (Article 5.29 of the Code of Administrative Offenses);
• unmotivated refusal to conclude a collective agreement (Article 5.30 of the Code of Administrative Offenses);
• violation or refusal to fulfill obligations under a collective agreement (Article 5.31 of the Code of Administrative Offenses);
• evasion from receiving the demands of employees and from participating in reconciliation procedures (Article 5.32 of the Code of Administrative Offenses);
• non-fulfillment of the terms of the agreement (Article 5.33 of the Code of Administrative Offenses);
• dismissal of employees as a result of a collective labor dispute and strike (Article 5.34 of the Code of Administrative Offenses);
• coercion to participate or to refuse to participate in a strike (Article 5.40 of the Code of Administrative Offenses);
• violation of the rights of persons with disabilities in terms of employment and employment (Article 5.42 of the Code of Administrative Offenses);
• concealment of an insured event (Article 5.44 of the Code of Administrative Offenses);
• non-compliance with the rules for attracting and using foreign work force in the Russian Federation (Article 18.10 of the Code of Administrative Offenses).

The administrative responsibility of the head for violation of labor laws (most often this) is to impose a fine. Disqualification is also possible - depriving a person of the right to work as a leader, to be a member of the board of directors, to conduct entrepreneurial activities to manage a legal entity (Article 3.11 of the Code of Administrative Offenses).

Disqualification applies to individuals who perform managerial functions in companies. Penalties for administrative offenses provided for in Articles 5.28 - 5.33, 5.44 of the Code of Administrative Offenses can be applied both to legal entities - employers, and to officials - their representatives. Penalties for committing offenses under Art. 5.27, 5.40, 5.42 apply only to individuals.

Learn more about the fines for violating labor laws in this video.

Criminal liability

In some cases, criminal liability is introduced for violation of labor laws. Criminal offenses include:

• violations of labor protection rules committed through negligence and resulting in serious bodily harm or death of an employee (Article 143 of the Criminal Code);
• unmotivated denial of employment, unreasonable or mothers of children under 3 years of age (Article 145 of the Criminal Code);
• salary delay for more than 2 months, which arose due to selfish or other personal interest (Article 145.1 of the Criminal Code).

For the commission of these crimes, along with other types of punishment, it is allowed to deprive the perpetrators of the right to get certain positions or engage in certain types of activities for up to 5 years.

To get an expert answer, ask questions in the comments

Liability is a concept that is not defined in labor legislation, but in Part 1 of Art. 232 of the Labor Code of the Russian Federation there is an obligation to compensate for the damage caused.

What is swearing

The material liability of the employee and the employer is expressed in the obligation of a party to an employment contract to compensate the other party for the loss caused by guilty illegal actions. At the same time, a guilty unlawful act means a misdemeanor, expressed in violation of the norms of the labor process.

The legislation determines that the victim has the right not to present a claim to the other party when, for example, the damage is not significant for him (Article 240 of the Labor Code of the Russian Federation). Responsibility does not come.

Thus, the conditions for the onset of material liability are:

• the presence of a labor offense, expressed in guilty unlawful behavior;
• causing damage to the property of one of the parties (or third parties), costs or payments for the acquisition, restoration of property or compensation for damage (including damage caused to third parties) by the other party as a result of these illegal acts;
• realization of the injured party of its right to demand compensation for the damage caused.

It is important to remember about the circumstances excluding the liability of the employee. These include causing damage due to force majeure, economic risk, extreme necessity, necessary defense, failure by the organization to ensure conditions for the storage of property entrusted to the employee.

The following types of employee liability are distinguished:

1. Full. The employee is obliged to compensate the damage caused by him in full.
2. Collective. It is used when, due to the equal distribution of responsibilities between all members of the work team, it is not possible to apply it to one person.

Full matresponsibility

The cases of full liability of the employee include:

• imposing full responsibility on the employee (only adult employees);
• establishing the shortage of values ​​entrusted to the employee;
• presence of intent;
• commission of a misdemeanor in a state of alcoholic or other intoxication;
• criminal acts established by the court;
• disclosure of secrets (commercial, state, etc.);
• administrative offense;
• infliction of harm not in the performance by an employee of his official duties.

Limited - regulated by Art. 241 of the Labor Code of the Russian Federation and makes up most of the cases. It is expressed in causing harm in the course of performing work duties through negligence or due to negligence.

The material liability of the employee for damage caused to the employer occurs within the limits of the average monthly earnings of the perpetrator. This type also applies to minors on a general basis.

Occurs in case of any infliction of losses, if the action (inaction) of the employee does not fall under full liability.

Here are some examples:

• damage to the values ​​entrusted to perform labor duties due to inattention or negligence;
• loss important documents, the absence of which is the cause of direct actual damage for the employer;
• improper preparation or failure to draw up documents, which led to the inability of the organization to carry out activities in full;
• expenses for the repair of damaged property;
• payment for a period of forced downtime or absenteeism;
• loss of earnings due to the organization due to negligent performance of duties.

Collective liability

To apply it, it is required to initially conclude an appropriate written agreement with the members of the team.

This type of liability arises during the performance of some work on the storage, sale, transportation, use of transferred assets by a team, if it is impossible to divide into individual members of the team and conclude an agreement with each of them on compensation in full (for example, a warehouse).

Recovery of damages

To recover damages, you must first establish the fault of the employee. To do this, they draw up an inspection protocol, reflecting the amount of losses in it. Based on the protocol, an act is drawn up, the real monetary value of the harm caused is estimated, confirmed by accounting documents. Having set the amount, we check what type of liability the guilty person falls under. If it does not fall under the full (the position is not the same and there is no contract), therefore, the losses are compensated within the average earnings, which is determined on the day the damage is established. And it is produced according to the rules of Art. 139 of the Labor Code of the Russian Federation.

To make deductions from earnings, it is necessary to issue an order, which he will familiarize himself with. In some cases, the perpetrator agrees to voluntarily make amends for the harm caused.

When is the contract

According to Art. 243 of the Labor Code of the Russian Federation, the condition for full liability is established by the terms of a properly executed labor contract with the head or his deputies, the chief accountant. Since these categories are endowed with extensive powers and dispose of material values, they must bear responsibility, including material. Also, by virtue of Art. 277 of the Labor Code of the Russian Federation, the head is obliged to fully compensate the organization for the losses caused.

Registration of the agreement

When hiring, a contract is drawn up. This does not apply to every employee, but positions such as a salesperson or cashier come with financial obligations.

The document comes into effect after it is signed by the parties and contains a clear description of the obligations of the parties and their rights, possible methods for recovering losses and other necessary conditions.

Employer's responsibility

The employer is obliged to compensate the damage caused to the employee, in accordance with labor law, in full size.

The liability of the employer to the employee is established by Ch. 38 of the Labor Code of the Russian Federation.

Circumstances that entail compensation for damage caused to an employee are:

1. Illegal deprivation of the opportunity to work entails payment for the entire period: suspension from work (Article 76 of the Labor Code of the Russian Federation), transfer (Articles 72-74 of the Labor Code of the Russian Federation) or dismissal (Articles 77-84 of the Labor Code of the Russian Federation) in the amount of the employee's average earnings. This also includes the refusal to comply with the decision of the labor dispute resolution body or the state labor inspector on the reinstatement of the employee at work (Articles 389, 396, 357 of the Labor Code of the Russian Federation) and entering into work book incorrect entry or incorrect wording, delay in issuing it (Article 62 of the Labor Code of the Russian Federation), preventing the employee from further employment.
2. Compensation for property damage (Article 235 of the Labor Code of the Russian Federation). It includes: damage to clothing in the course of performance of labor duties; loss of things from the wardrobe or storage places; loss (damage) of personal property used with the consent (knowledge) of the employer in labor activity. Losses in such cases are compensated in full. With the consent of the employee, they are compensated in kind. It is necessary to consider the application for damages and make a decision on it within 10 days. In case of disagreement with the decision, the employee has the right to go to court.
3. Moral damage as a result of illegal actions (inaction) of the employer is compensated in cash (Article 237 of the Labor Code of the Russian Federation), for example, in case of discrimination in the field of labor. Moral harm is understood as physical and moral suffering caused to an employee in violation of his personal property rights and infringing on other intangible benefits belonging to him. The amount is determined by agreement of the parties. In case of refusal to compensate for moral damage, the employee has the right to apply to the court. The absence of property losses does not affect the right to file a claim for compensation for non-pecuniary damage.
4. Violation of the established deadline for the payment of wages or other amounts due to the employee. Art. 236 of the Labor Code of the Russian Federation establishes the obligation of the employer to pay compensation to the employee for delayed wages. This implies the payment of interest (monetary compensation) in the amount of at least 1/150 of the key rate of the Central Bank of the Russian Federation in force at that time on the amount of debt for each day of delay from the next day after the payment deadline until the day of actual settlement inclusive. The obligation to pay is not affected by the presence or absence of guilt.

In certain cases, officials or the organization itself are responsible for the actions of an employee who violates the law. Moreover, the losses caused by the employee can reach significant proportions. The most common case is the non-use of CCP by the seller when selling goods (works or services). What other cases of employer liability are found in practice? Can such liability be minimized or avoided? The answers to these and other questions are in our article.

When and why does responsibility come?

The responsibility of the employer for harm caused by the employee to third parties is established by Art. 1068 of the Civil Code of the Russian Federation. It says here that an organization or an individual entrepreneur is obliged to compensate for the harm caused by an employee in the performance of labor (official, official) duties.

In this case, both people hired under an employment contract and those who perform work under a civil law contract are considered employees (Article 1068 of the Civil Code of the Russian Federation).

In the event of a litigation, the defendant in such cases is the subject of liability (employer), and the employee - as a direct tortfeasor - is involved as a third party.

Please note: the employer will be liable even if, at the time of causing harm to a third party, he did not have a contractual relationship with the person he attracted to perform the work.

So, in one case, the plaintiff's argument that the seller who sold the goods without the use of cash registers has nothing to do with an individual entrepreneur could not serve as a basis for releasing the latter from liability. Indeed, in accordance with Art. 18 of the Labor Code of the Russian Federation, the actual admission to work is considered a conclusion labor agreement. The fact of admission to work in point of sale established by the court and confirmed by the case materials ( Decree of the FAS MO dated 10/14/1998 N KA-A40 / 2509-98).

The court considered another similar case.

During the inspection, the inspectors found that when providing the service for soldering the chain, the jeweler did not use the CCP, did not issue a check or a form strict accountability. This violation was recorded by the auditors in the act of inspection and the protocol on an administrative offense. Based on the results of consideration of the audit materials, the tax inspectorate issued a decision to hold the employer's company liable under Art. 14.5 of the Code of Administrative Offenses of the Russian Federation in the form of 30 thousand rubles. fine.

In the cassation complaint, the firm indicated that at the time of the check, the jeweler was not its employee. But the court rejected these arguments on the following grounds. During the inspection, the jeweler directly provided the service of soldering the chain to the address of the workshop owned by the employer.

And if a person started work with the knowledge or on behalf of the employer, then regardless of the execution of the employment contract in writing, the contract is considered concluded (Article 67 of the Labor Code of the Russian Federation). Therefore, the courts came to the conclusion that the jeweler was an employee of the company (resolution of the SKO dated 21.04.2008 N F08-1936 / 2008-704A).

The employer is responsible for the actions of the employee, even if the harm was caused on a non-working day (of course, if the person performed work duties on that day). Voskhod LLC filed a lawsuit against UM-6 LLC to recover damages caused by the actions of the UM-6 driver during loading and unloading operations using a truck crane belonging to the defendant. At the court session, it was established that, despite the fact that the driver is an employee of the defendant, he did not fulfill his labor duties (it was a day off). The driver performed work on the instructions of the plaintiff, so the defendant filed a counterclaim for damage caused to the truck crane. In the first instance, the initial claim was satisfied, but the decision of the appellate instance in the initial claim was denied to the plaintiff and the counter was satisfied. By the decision of the FAS SZO dated November 21, 2003 N A56-31151/02, the decision and the decision were canceled and the case was sent for a new consideration.

At the same time, the FAS SZO indicated that the crane operator was in labor relations with LLC "UM-6" and, on his instructions, performed work at LLC "Voskhod". The fact that it was a day off is not decisive, since in this case, too, the employee performed labor function.
In addition to the conditions listed above, the company (entrepreneur) will be liable for the actions of its employee only if the offense is established (Chapter 59 of the Civil Code of the Russian Federation). It includes:
- the occurrence of harm, its nature and size;
- wrongfulness of the behavior of the tortfeasor;
- causal relationship between the first two elements;
- the fault of the perpetrator.

The court may refuse to satisfy the applicant's claims if the totality of the listed conditions is not proven. For example, if there is no evidence of a causal relationship between the actions of an employee and the consequences that have occurred, there are no grounds for recovering losses from the employer's organization. Such conclusions follow from the decision of the FAS SKO dated 02.11.2005 N Ф08-5099/05. The essence of the matter is this. The driver - an employee of the company damaged the gates of the plant with a KamAZ car. The plant filed a lawsuit against the company for damages. At the court session, the plaintiff did not present evidence showing that the gates were out of order precisely as a result of a KamAZ car hitting them. As a result, no damages were recovered from the employer.

Similar examples of court decisions can be found in the resolutions of the FAS DO dated 06/23/2008 N F03-A73 / 08-1/1660, dated 02/27/2008 N F03-A73 / 07-1 / 6465; FAS VVO dated 02.05.2007 N A38-3004-18 / 238-2006; determination of the Supreme Arbitration Court of the Russian Federation of 08.05.2007 N 5111/07, etc.

When considering such claims, the court is obliged to take into account the gross negligence of the victim himself, if any (paragraph 2 of article 1083 of the Civil Code). But the property status of the employee who caused the harm does not matter, since the employer is responsible for his actions. At the same time, the employer who has compensated the harm to a third party has the right to transfer his own losses on a recourse claim to his employee (part 1 of article 1081 of the Civil Code of the Russian Federation). In practice, the most common cases where an employer is liable for an employee's actions are non-use of CCPs and traffic accidents. Therefore, we will dwell on them in more detail.

Non-use of CCP

As you know, organizations individual entrepreneurs accepting in payment for their goods (works, services) cash and payment bank cards, are required to apply cash register equipment (Article 2 of the Federal Law of May 22, 2003 N 54-FZ "On the use of cash registers in the implementation of cash payments and (or) payments using payment cards", hereinafter referred to as the Law on cash register equipment).

The obligation of cashiers-operators or sellers to use cash registers is not established by the Law on cash registers. This obligation is assigned to them on the basis of an employment contract.

Having revealed the fact of non-use of the CCP, the tax authorities draw up a protocol on an administrative offense and issue a decision to bring the perpetrator to justice. The amount of penalties under this article is:
for citizens (cashier-operator) - from 1500 to 2000 rubles;
for officials (entrepreneurs, see note to article 2.4 of the Code of Administrative Offenses of the Russian Federation) - from 3,000 to 4,000 rubles;
for legal entities - from 30,000 to 40,000 rubles. The specific amount of the fine is determined by the controllers. Having fined the firm, auditors can also hold its employee accountable.

The right to punish non-compliance cash register(under article 14.5 of the Code of Administrative Offenses of the Russian Federation) provided to tax inspectors (article 23.5 of the Code of Administrative Offenses of the Russian Federation, article 7 of the Law on CCP).

The law on cash registers says that tax structures "carry out checks on the issuance of cash receipts by organizations and individual entrepreneurs." That is, failure to issue a check to the buyer is the non-use of cash registers.

In addition, according to the decision of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 31, 2003 N 16, the non-use of a cash register means:
- use of cars that are not registered with the tax authorities;
- use of a machine not included in the State Register;
- use of cash register without fiscal memory, with fiscal memory in non-fiscal mode or with a failed fiscal memory block;
- the use of KKM, in which the seal is missing or damaged;
- breaking through the KKM check indicating the amount less than that paid by the buyer (client).

Practice shows that in this situation, the employer-organization is always responsible for the actions of its employee (decisions of the Supreme Arbitration Court of the Russian Federation dated June 28, 2005 N 480/05; FAS MO dated 04/14/2008 N KA-A41 / 2550-08; FAS SKO dated 06/04/2008 N F08-3017/08; FAS TsO dated 06/26/2008 N A62-4372 / 2007, dated 06/26/2008 N A68-10134 / 07-2/8 etc.).

The arbitrators emphasize that all trading activities carried out at the point of sale should be considered as being carried out on behalf of the organization. This is fully consistent with the position of the Supreme Arbitration Court of the Russian Federation, given in the ruling dated 08.11.2007 N 8467/07: "non-use by a legal entity of CCP due to improper performance of labor duties by its employee is not a circumstance that exempts the legal entity itself from administrative liability under Article 14.5 of the Code of Administrative Offenses RF".

Thus, the guilt of a legal entity as a subject of administrative legal relations is determined by the fault of the seller. It would seem that the Code of Administrative Offenses of the Russian Federation still provides some loophole for employers-organizations. Let us turn to paragraph 2 of Art. 2.1 of the Code of Administrative Offenses of the Russian Federation. It says here that "a legal entity is found guilty of committing an administrative offense if it is established that ... this person did not take all measures depending on him to comply with them (rules and norms - Ed.)." It turns out that if it turns out that all possible measures have been taken, liability can be avoided. However, in practice, it is almost impossible to prove this.

The cashier of the company did not break through cash receipt. Having considered the company's claim against the inspectorate that had fined it, the court of appeal indicated that the company's fault was in committing an offense under Art. 14.5 of the Code of Administrative Offenses of the Russian Federation, absent.

After all, the company took all necessary measures for the seller-cashier to comply with the Law on CCP. Namely: at the point of sale there was a serviceable cash register registered in the tax office; the seller, at the conclusion of the employment contract, was familiarized with the job description, which states that the seller must perform cash settlements with the population only using cash registers. However, FAS ZSO ( Decree of the FAS ZSO of 01.11.2007 N F04-7158 / 2007 (39850-A45-3)) sided with the inspection. At the same time, the federal court agreed with the court of first instance, which indicated that "the non-use by a legal entity of a CCP ... due to improper performance of labor duties by its employee is not a circumstance that exempts the legal entity itself from liability for an administrative offense under Article 14.5 of the Code of Administrative Offenses of the Russian Federation."

Similar decisions were made by the judges in the resolutions of the FAS ZSO dated July 3, 2008 N F04-4071 / 2008 (7598-A46-32), dated March 27, 2008 N F04-2148 / 2008 (2927-A27-32). Another thing - individual entrepreneurs. The responsibility of the PBOYuL (Article 2.2 of the Code of Administrative Offenses of the Russian Federation) will come only if it is proved that he is guilty (intent or negligence). Thus, the entrepreneur-employer will be liable if it is established that he did not ensure the implementation of the rules for the application of cash register equipment by a specific employee acting on his behalf in settlements with buyers.

Arbitration practice is replete with examples when the courts released entrepreneurs from liability for non-use of CCPs if the PBOYuL managed to prove that they were not guilty (decrees of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 22, 2007 N 16234/06; FAS UO dated July 15, 2008 N F09-4992 / 08 - C1, dated 03/25/2008 N F09-1842 / 08-S1; FAS TsO dated 01/17/2008 N A64-2541 / 07-15, dated 14.01.2008 N A64-2540 / 07-15; FAS DO dated 07/21/2004 N F03-A73 / 04-2 / ​​1684, etc.).

Here is one of those examples.

In the store owned by the entrepreneur, there was a KKM registered with the tax office, an employment contract and an agreement on full liability were concluded with the seller, the seller was familiarized with the job description.

Under such circumstances, the courts came to the conclusion that the inspection did not prove the guilt of the entrepreneur. As a result, the FAS MA released the latter from liability ( Decree of the FAS UO dated 03/25/2008 N Ф09-1842 / 08-С1).

If liability for non-use of CCP cannot be avoided, then it can be mitigated. The grounds for mitigation of liability are listed in Part 1 of Art. 4.2 of the Code of Administrative Offenses of the Russian Federation. In addition, the arbitration court may recognize extenuating circumstances that are not specified in the Code of Administrative Offenses of the Russian Federation (part 2 of article 4.2 of the Code of Administrative Offenses of the Russian Federation). For example, the court may take into account the fact that the violation was recorded by the controllers for the first time and reduce the amount of the fine ( Decree of the FAS SZO dated 07.05.2007 N A56-11958 / 2006).

Other mitigating circumstances taken into account by both judges and tax authorities include: the unintentional nature of the actions of the seller, the short duration of his stay at work, as well as the low amount of income from entrepreneurial activity(Resolutions of the FAS UO of 09.07.2007 N F09-5099/07-S1; FAS SKO of 26.12.2007 N F08-8536/07-3211A).

Moreover, the court may recognize these circumstances as mitigating, regardless of whether the applicant requested that they be taken into account at the stage of consideration of the case by an administrative body. However, it should be borne in mind that the amount of the fine cannot be set below the limit provided for in Art. 14.5 of the Code of Administrative Offenses. If the controllers set the minimum amount of the fine, then the court will have no reason to reduce it ( Decree of the FAS SKO dated 06/28/2005 N F08-2768 / 05-1124A).

Article 2.9 of the Code of Administrative Offenses of the Russian Federation provides for the possibility of releasing a person who has committed an administrative offense from liability if it is insignificant. Then there will be no fine at all, and the inspectors will be limited to only a verbal remark. The insignificance of the act is determined by the court based on the degree of public danger of the offense and the nature of the offender's guilt ( resolutions of the FAS SZO dated July 30, 2008 N A52-529 / 2008; FAS TsO of 19.06.2008 N A09-8008/07-22; FAS VVO dated 11.06.2008 N A11-11130/2007-K2-28/105/17). At the same time, a small amount of the sale does not indicate the insignificance of the offense (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of May 17, 2005 N 391/05).

Accident involving a company employee

Consider another category of cases - when a company is held liable for the actions of an employee during an accident. The party injured in an accident files a lawsuit in court if the tortfeasor refuses to compensate for the damage on a voluntary basis. The plaintiff establishes the amount of harm caused on his own, otherwise the court will refuse his claim (). Moreover, the employer compensates for the damage even if the employee caused harm to a third party by accident (through negligence). Two situations are possible:
- the vehicle belongs to the organization;
- the vehicle belongs to the employee.

In which of these cases will the employer compensate for the harm caused by his employee? According to Part 1 of Art. 1079 of the Civil Code of the Russian Federation, it is the owners of sources of increased danger ( legal entities and citizens) are obliged to compensate for the harm caused by such a source, unless they prove that the harm arose as a result of force majeure or the intent of the victim.

Therefore, the company will be liable for an accident committed by an employee in the event that it is the owner of the car ( Decree of the FAS SZO dated 06/17/2008 N A56-3993 / 2007). If the car belongs to an employee, then he will be responsible.

Moreover, if we are talking about rented cars, then the lessor is responsible for the accident (Article 640 of the Civil Code of the Russian Federation). Even if the driver was acting on behalf of the tenant. An example of such a court decision is. The court partially recovered from CJSC the damage caused to the entrepreneur in an accident, indicating that it was the CJSC that was considered liable for losses in the entrepreneur's property. The latter acted as a lessor under a vehicle rental agreement with a crew, on the basis of which the vehicle was leased to LLC. However, the gross negligence of the entrepreneur himself, which contributed to the increase in damage, is the basis for reducing the amount of compensation. We emphasize: from the literal interpretation of the norm of Art. 1068 of the Civil Code of the Russian Federation it follows that the employer is obliged to compensate for the harm caused by the employee in the performance of labor (official, official) duties.

It turns out that if an accident occurred when the employee used the car for personal purposes, the employer will not be held liable. IN Decree of the Federal Antimonopoly Service of the Central Organ of November 30, 2007 N A36-1030 / 2006 there is such a wording: "Since CJSC" A "did not provide the court with evidence indicating that the driver at the time of the accident was not in the performance of labor (official, official) duties (used the car for personal purposes) or unlawfully took possession of the car, the courts came to a reasonable conclusion about the legitimacy of the plaintiff's claim."

In this case, the plaintiff just demanded that ZAO pay damages. This means that if the firm provided evidence that the driver used the car for personal purposes, the court would consider the plaintiff's claims unlawful. In such cases, the courts insist that the plaintiff must prove:
- the presence and extent of harm;
- causal relationship between the harm that has occurred and the actions of the harm-doer;
- the reality of lost profits.

For example, the plaintiff, when considering the case in court, did not prove the existence of a causal relationship between the actions of the defendant and the losses incurred by him. Evidence objectively confirming that during the declared period of time the impossibility of the movement of trolleybuses was due to the specified accident was absent in the case. Therefore, the Court of Appeal refused to satisfy the claims filed by the plaintiff for the recovery of losses caused by the demurrage of trolleybuses as a result of an accident that occurred through the fault of the driver of the respondent company ( Decree of the FAS UO dated 04.24.2008 N F09-2652 / 08-C4).

The owner of a source of increased danger may be exempted by the court from liability in whole or in part (clauses 2 and 3 of article 1083 of the Civil Code of the Russian Federation), if it is proved that the gross negligence of the plaintiff himself led to the accident.

For example, in a controversial case, the court indicated that the defendant cannot be fully liable to the plaintiff, since the gross negligence of the plaintiff himself, which was expressed in violation of the Rules by the driver, also contributed to the fact of the accident. traffic RF. And since the gross negligence of the victim himself, which contributed to the occurrence (increase) of harm, is the basis for reducing the amount of compensation (paragraph 2 of article 1083 of the Civil Code of the Russian Federation), the court reduced the amount of losses subject to compensation to the victim by 50% ( Decree of the FAS SZO dated 10.06.2008 N A05-8990 / 2007).

If the organization has insured its liability under OSAGO or has entered into a voluntary insurance agreement, then the damage to victims - third parties will be paid Insurance Company. But this does not exclude the repayment of damage by the organization - the owner of the vehicle. In the event that the insurance indemnity is not enough to fully compensate for the harm caused, the insured company compensates for the difference between the insurance indemnity and the actual amount of damage in accordance with Art. 1072 of the Civil Code of the Russian Federation ( Decree of the FAS MO dated 17.09.2007 N KG-A41 / 8003-07).

In some cases, the insurance company may file a recourse claim against the defendant firm. For example, if it is proven that:
- there was an intent of the driver to cause harm to the life or health of the victim;
- harm was caused while driving vehicle in a state of alcoholic or drug intoxication;
- the driver was deprived of a driver's license;
- the driver fled the scene of the accident;
- the driver was not included in the OSAGO agreement as a person authorized to drive the vehicle;
- the insured event occurred when using the car in a period not provided for by the compulsory insurance contract.

Let's take an example. When considering the case, the insurer, referring to the fact that the insured event occurred when the driver was in a state of intoxication, also fled the scene of an accident, filed a lawsuit with the arbitration court against the insured organization, the owner of the car. This fact was not disputed by the defendant, therefore the court decided to impose the obligation to compensate for the damage caused as a result of an accident on the defendant as an employer owning the vehicle on the right of ownership ( resolutions of the Federal Antimonopoly Service of the Central Organ of December 5, 2007 N A62-273 / 2007, of November 30, 2007 N A36-1030 / 2006).

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1 Labor Code RF dated December 30, 2001 N 197-FZ, this code was declared invalid from February 1, 2002. A similar provision is contained in Art. 67 of the Labor Code of the Russian Federation.

Journal "Arbitration Justice in Russia" N 10/2008, E.A. SHELENKOVA, practicing lawyer, specialist in tax and administrative law; S.N. SHELENKOV, head of the legal group of CJSC KG "Econ-Profi"