Anastasia Morgunova, director of the tax consulting department of online accounting “My Business”

Labor relations are largely based on the employer's trust in the employee. Staff are provided necessary tools and equipment, often of high material value (for example, office equipment). In some cases, the employee is given large sums of money on account, for the safety or strict intended use of which he is responsible. In the event of loss, damage or shortage of property entrusted to an employee, the organization has the right to legally recover damages from the culprit.

Anastasia Morgunova, director of the tax consulting department of online accounting “My Business,” explains how to correctly record the fact of causing harm, establish its size and investigate the circumstances in which it arose.

Under what conditions does the employee’s financial liability to the employer arise?

Occurs when the following conditions are simultaneously present:

- causing direct actual damage. Confirmation of the fact of damage is, for example, an act of discovery of damage caused by an employee, an explanatory note from the employee regarding the fact of damage, inventory materials and other evidence

(in particular, the damaged property itself);

- illegality of actions or employee inaction. For example, damage arose as a result of the fact that the employee did not fulfill his duties established employment contract, job description, internal rules labor regulations and other local acts of the organization;

- causation between the employee’s unlawful actions or inaction and the direct actual damage that occurred. The cause-and-effect relationship must be obvious. For example, an employee dropped a computer on the floor, which then stopped working;

- employee's fault in causing damage to the employer. Guilt is understood as intent or carelessness (frivolity, negligence) in the employee’s actions that led to

to damage to the employer.

Confirmation: part 1 art. 233 Labor Code RF, paragraph 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 52 of November 16, 2006, letter of Rostrud No. 1746-6-1 of October 19, 2006.

A comment:When establishing the employee’s guilt, it is necessary to find out whether he could have acted differently in this situation, whether he had the opportunity to avoid material losses. There are circumstances that completely exclude the guilt of the person who caused the damage (if, of course, he can confirm their presence with sufficient evidence). This is an extreme necessity, an act of force majeure, normal economic risk, necessary defense, as well as the employer’s failure to fulfill the obligation to provide adequate conditions for storing property. The Labor Code of the Russian Federation, mentioning these concepts in Art. 239, does not reveal their essence. I believe that in this case it is necessary to be guided by other legal acts, in particular, Art. 401 Civil Code RF, Art. 37, 39 of the Criminal Code of the Russian Federation, Art. 2.7 Code of Administrative Offenses of the Russian Federation. para. 2 clause 5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 52 of November 16, 2006. On the websitewww.moedelo.org You can learn through practical examples how to apply the above concepts to employment relationships.

What is the financial responsibility of the employee to the employer?

The employee's responsibility lies in the obligation to compensate for direct actual damage caused to the employer (losses that can be accurately calculated). At the same time, the employer does not have the right to recover lost income (lost profits) from the employee.

Direct actual damage means (in total):

Real decrease in the employer's cash assets or deterioration in its condition

(including property of third parties held by the employer, if he is responsible for its safety);

The need for the employer to make costs or excess payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties.

For example, direct actual damage may include:

Lack of cash or property assets;

Damage to materials and equipment;

Costs for repairing damaged property;

Payments for forced absence or downtime;

The amount of the fine paid, which was applied to the employer due to the fault of the employee.

The damage that the employee caused to third parties means all amounts paid by the employer to third parties to compensate for the damage. In this case, the employee can be held liable only within these amounts and provided that there is a cause-and-effect relationship between his culpable actions (inaction) and causing damage to third parties.

Confirmation: part 1, 2 art. 238 of the Labor Code of the Russian Federation, paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 52 of November 16, 2006, letter of Rostrud No. 1746-6-1 of October 19, 2006.

To what extent must the employee compensate for the damage caused?

The employee must compensate for damages either in the amount of his average monthly earnings or in full. It depends on what financial responsibility is assigned to the employee.

By general rule, the employee bears limited liability for damage caused - within the limits of your average monthly earnings (Article 241 of the Labor Code of the Russian Federation). But in some cases it may be entrusted to him full financial responsibility, that is, the obligation to compensate the damage caused to the employer in full (Article 242 of the Labor Code of the Russian Federation).

Cases of full financial liability are listed in Art. 243 of the Labor Code of the Russian Federation. For example, it may be assigned to the employee in accordance with the Labor Code of the Russian Federation or federal laws. So, in accordance with Art. 277 of the Labor Code of the Russian Federation, the head of the organization bears full financial responsibility for damage caused to the employer.

In addition, the employee bears full financial responsibility if he caused damage as a result of a crime, an administrative offense, while drunk, with the intent to cause harm to the employer, and in some other cases.

Such liability also arises in the case when the employee was entrusted with valuables under an agreement on full financial liability, concluded with him individually or as part of a team (team), or he received them under a one-time document (power of attorney). It should be remembered that an agreement on full financial liability can only be concluded with an adult employee (over 18 years of age).

Confirmation: Art. 2439-245 of the Labor Code of the Russian Federation, paragraphs 9-12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 52 of November 16, 2006.

A comment:Employers sometimes consider concluding an agreement on full financial responsibility to be a “panacea for all ills.” Some even offer to sign such a document to all employees accepted into the organization without exception. However, it should be taken into account that agreements on full financial liability can be concluded only with employees whose positions (works) are included in the Lists, approved. Resolution of the Ministry of Labor of Russia No. 85 of December 31, 2002 (materially responsible persons). In other cases, the existence of such agreements is not justified - they will not have legal force. This is clearly demonstrated by judicial practice.

Several employers tried to recover damages in full from employees through the court, however, compensation for damages only in the amount of the average monthly earnings of the defendants was recognized as legal. The fact is that agreements on full financial liability were unlawfully concluded with employees who did not fall under the above lists (specialist production department and watchman). These employees were not directly involved in the maintenance or use of monetary, commodity values ​​or other property. The court indicated that these lists of positions (works) are exhaustive and are not subject to broad interpretation (Determination of the Supreme Court of the Russian Federation No. 18-B09-72 of November 19, 2009, Determination of the Moscow City Court No. 33-19538 of June 24, 2011, Determination of the Primorsky Regional Court No. 33-2124 of March 29, 2010).

How to determine the amount of material damage (losses) caused by an employee?

You need to determine the amount (as a general rule) based on market prices for property that has suffered damage. They must be valid on the day the damage occurred (for example, on the day the shortage of a particular property was discovered). In this case, the amount of material damage cannot be lower than the value of the property according to accounting data (taking into account its wear and tear).

Confirmation: part 1 art. 246 of the Labor Code of the Russian Federation.

At the same time, separate regulations A different procedure for determining the amount of material damage may be established. For example, for the theft or shortage of narcotic drugs or psychotropic substances, an employee is liable in the amount of 100 times the amount of direct actual damage caused to the organization (Clause 6, Article 59 of Federal Law No. 3-FZ of January 8, 1998).

Confirmation: Art. 238, part 2 art. 246 of the Labor Code of the Russian Federation.

How to confirm the amount of material damage (loss)?

It is necessary to confirm the amount before making a decision on compensation for material damage (losses) by the employee. The procedure for confirming the amount depends on the type of material damage caused.

As a general rule, to establish the amount of damage (losses) caused and the reasons for its occurrence, the employer must to inspect. For this purpose, the organization has the right to create a special commission with the involvement of the necessary specialists (Part 1 of Article 247 of the Labor Code of the Russian Federation). For example, such a check is necessary if the damage occurred as a result of necessary defense. In this case, the employee’s financial liability is completely excluded (Article 239 of the Labor Code of the Russian Federation).

If facts of theft, abuse or damage to property are detected, the above check is carried out in the form inventory(clause 2 of article 12 of Federal Law No. 129-FZ of November 21

1996). Its results must be indicated in the comparison sheet (form No. INV-18 or No. INV-19).

Confirmation: clause 4.1 of the Methodological Instructions, approved. By Order of the Ministry of Finance of Russia No. 49 of June 13, 1995

The amount of material damage resulting from an accident that occurred through the fault of an employee can be determined without conducting an internal audit. This is due to the fact that the reasons for the occurrence of material damage and its amount can be justified by:

Documents received from traffic police officers upon the accident (as confirming the cause of the damage);

Documents received from repair and insurance companies (confirming the amount of damage caused by the at-fault employee).

Once the amount of material damage has been determined, the organization must request from the employee written explanations of the reasons why the damage occurred. If the employee refuses (evades) to provide such an explanation, a report must be drawn up.

Confirmation: Part 2 of Art. 247 of the Labor Code of the Russian Federation.

How to reflect in accounting a shortage that arose due to the fault of the financially responsible person (other guilty parties) and was identified as a result of an inventory?

It is necessary to reflect the identified shortage (taken into account after the inventory in the debit of account 94 “Shortages and losses from damage to valuables”) as a mutual settlement with financial responsible employee(by another person) recognized as the culprit.

The postings in this case will be as follows:

DEBIT 73-2 (76-2) CREDIT 94

Repayment of debt for the shortage by the employee (other guilty person) is reflected.

The market value of the property that is being reimbursed guilty person, may exceed the cost at which the property is recorded. In this case, the organization must make the following entries:

DEBIT 73-2 (76-2) CREDIT 94

The shortage in the amount of the value at which the property is reflected in accounting is attributed to the financially responsible person (another guilty person);

DEBIT 73-2 (76-2) CREDIT 98-4

The difference between the amount to be recovered from the guilty party and the value at which the property is recorded is reflected.

As the guilty person recovers what is due from him Money, the specified amount is written off as other income in proportion to the repaid debt:

DEBIT 50 (51, 70) CREDIT 73-2 (76-2)

Repayment of debt for the shortage by the employee (other guilty person) is reflected;

DEBIT 98-4 CREDIT 91-1

The difference between the amount to be recovered from the guilty person and the cost of the missing valuables as part of other income is reflected.

If a shortage that arose due to the fault of a financially responsible person (other guilty parties) is identified in the reporting period, but relates to previous reporting periods, then it must be taken into account as part of future income:

DEBIT 94 CREDIT 98

The shortage related to previous periods, but identified in the reporting period, is reflected;

DEBIT 73-2 (76-2) CREDIT 94

The shortage identified in the reporting period, but relating to previous periods, is attributed to the financially responsible person (another guilty person).

As the amount due from the guilty person is collected, the shortfall is written off as other income:

DEBIT 98 CREDIT 91-1

The shortfall identified in the reporting period, but relating to previous periods, is reflected in income.

The guilt of the financially responsible person (other guilty persons) must be documented. Supporting documents may be a decision of investigative or judicial authorities, a conclusion on the fact of damage to valuables, which is issued by the technical control department or relevant specialized organizations (quality inspections, etc.).

Confirmation: clauses 5.1, 5.2 of the Methodological Instructions, approved. By Order of the Ministry of Finance of Russia No. 49 of June 13, 1995, Instructions for the Chart of Accounts.

Also on the website www.moedelo.org you will find the necessary accounting entries in order to reflect:

Withholding material damage caused to the organization from the employee’s salary;

Accountable amounts issued to an employee for the performance of an official task that were not returned on time, as well as the deduction of such amounts from the employee’s salary;

Shortage of property that belongs to the organization, but is not listed on the balance sheet accounts, if the cause of the shortage is the fault of the employee (financially responsible or other guilty person), and others.

What maximum size withholding amounts of material damage from an employee’s salary?

The maximum amount of deductions for amounts of material damage from an employee should not exceed his average monthly earnings (Part 1 of Article 248 of the Labor Code of the Russian Federation).

At the same time, no more than 20 percent can be withheld from an employee’s monthly salary (Part 1 of Article 138 of the Labor Code of the Russian Federation).

The amount of damage that exceeds the average monthly salary of the employee (if brought to full financial liability), if the perpetrator does not agree to compensate it voluntarily, can be recovered from him only through the court (Part 2 of Article 248 of the Labor Code of the Russian Federation).

An employee can voluntarily compensate for the damage caused by him (both with limited and full financial liability). In this case, by agreement of the parties, compensation for damage by installments is allowed. In addition, the employee must submit to the employer a written obligation to compensate for damages, in which it is necessary to indicate specific payment terms (Part 4 of Article 248 of the Labor Code of the Russian Federation).

An employer can confirm its consent to payment by installments:

Either a permissive inscription (for example, “I don’t object” or “allow”) on the employee’s written obligation;

Or separate administrative document, which will specify the procedure for settlements (for example, by order, instruction).

If an employee gave a written obligation to compensate for material damage, and then quit and refused to pay the debt, the outstanding debt can only be recovered through the court.

Confirmation: part 4 art. 248 of the Labor Code of the Russian Federation.

Withhold the amount of material damage from the employee’s income in this order.

First, calculate the amount of losses, which includes:

Amount of material damage;

Expenses for the acquisition or restoration of property (for example, repairs);

Expenses for compensation for damage that an employee caused to other citizens or organizations (for example, damage from an accident to the extent not covered by insurance compensation).

The scope of losses that an employee who has caused material damage to the organization is required to compensate is specified in Article 238 of the Labor Code of the Russian Federation.

Situation: who will compensate for damage in an accident for which an employee of the organization is found to be at fault?

Damage in an accident that an employee caused to third parties (in excess of compensation under compulsory motor liability insurance) must be compensated at the expense of the organization (Article 1068 of the Civil Code of the Russian Federation). In this case, the employee who caused the damage is obliged to compensate such expenses in full (clause 6, part 1, article 243 of the Labor Code of the Russian Federation).

The employee must reimburse:

The amount that the organization transferred to the injured party in excess of compensation under compulsory motor liability insurance;

The cost of repairing the organization's car (if the organization did not enter into a voluntary property insurance agreement or the insurance did not fully cover the costs of repairs).

However, by decision of the head of the organization, the employee may not fully or partially compensate for the damage caused by him (Article 240 of the Labor Code of the Russian Federation).

An example of calculating material damage caused by an employee in an accident. The employee compensates for the damage caused in full

Driver of the organization Yu.I. Kolesov became the culprit of the accident.

The damage caused amounted to 130,000 rubles. The insurance payment to the injured party under compulsory motor liability insurance amounted to 120,000 rubles. Repairing your own car cost the organization 35,000 rubles. The organization did not provide voluntary property insurance.

The amount of material damage that the employee is obliged to compensate to the organization is:
130,000 rub. - 120,000 rub. + 35,000 rub. = 45,000 rub.

Creation of a special commission

To confirm the amount of material damage in an organization, you can create a special commission (Article 247 of the Labor Code of the Russian Federation). Its composition is approved by the head of the organization. It is advisable to create a commission when establishing facts of theft or abuse, as well as damage to valuables.

Indicate the identified shortage (cost of losses) in the matching statement.

Prepare matching statements:

Or according to the forms approved by paragraph 1.2 of the Resolution of the State Statistics Committee of Russia dated August 18, 1998 No. 88 (forms No. INV-18 or No. INV-19);

Or according to forms developed by the organization independently and approved by the head of the organization.

If the amount of material damage can be established on the basis of documents received from counterparties, a commission need not be created. For example, in the event of an accident caused by an employee, the amount of material damage can be determined using documents received from insurance and repair companies.

Damage assessment

Determine the amount of damage based on market prices on the day the damage was caused (the employee committed an accident, discovered a shortage, etc.). In this case, the damage cannot be assessed below the value of the property according to accounting data (including wear and tear). When determining damage, do not take into account actual losses in within the limits of natural loss . This procedure is established by Article 246 of the Labor Code of the Russian Federation.

Written explanations from the employee

After determining the amount of damage, obtain written explanations from the employee about the reasons why it arose. If the employee refuses to do this, then draw up a report. This procedure is established by part 2 of article 247 of the Labor Code of the Russian Federation.

Retention Order

To recover the amount of damage from the guilty employee, the head of the organization must issue a withholding order. The order must be issued no later than a month after the commission establishes the amount of damage.

Calculation of the amount of damage

Based on the order, deduct the cost of damage from the employee’s income, not exceeding his average monthly salary. Taking into account this rule, it is necessary to recover damages both in cases where the employee bears limited financial liability, and in cases where financial liability arises for the full amount of damage.

An amount of damage exceeding the average monthly salary can be recovered from an employee only through the court (if he bears full financial responsibility). At the same time, the employee can voluntarily reimburse the amount of damage. In this case, by agreement of the parties, compensation for damage by installments is allowed.

This procedure is established by Article 248 of the Labor Code of the Russian Federation.

Situation: how to determine the average monthly earnings when calculating the amount of material damage that can be withheld from an employee’s income?

The legislation does not provide for a methodology for calculating average monthly earnings. For all cases of maintaining average earnings, a uniform procedure has been established for its calculation based on the average daily (hourly) earnings (Article 139 of the Labor Code of the Russian Federation). Therefore, when calculating the amount of material damage, it is necessary to use it. The different names that are used to determine the amount of payments cannot serve as a basis for using any other procedure.

The cost of damage withheld from the employee’s income should not exceed his average monthly earnings (Part 1 of Article 248 of the Labor Code of the Russian Federation). However, the specific procedure for calculating earnings for such cases has not been determined. So you need to use general rules. Namely, you need to calculate average earnings based on the salary actually accrued to the employee and the time actually worked by him for the previous 12 calendar months. In this case, the months preceding the month in which the employee caused the damage. The total salary for 12 months must be divided by the number of days (hours) worked and multiplied by the number of working days or hours on the employee’s schedule in the month in which he caused the damage. Yes, in this case the average earnings will depend on the month of calculation. However, there is no reason to simply divide your annual earnings by 12. This follows from the provisions of Article 139 of the Labor Code of the Russian Federation, paragraphs 4, 9 and 13 of the regulations approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922).

You can deduct from an employee’s monthly salary no more than 20 percent . Therefore, it will most likely be necessary to recover the amount of material damage in the amount of the average salary within several months.

An example of calculating material damage recovered from an employee. An agreement on full financial liability has not been concluded with the employee.

In August 2015, due to the fault of employee A.S. Kondratiev printer failed. The employee has limited financial liability.

The amount of material damage is estimated at 12,000 rubles.

During the period from August 2014 to July 2015, Kondratyev worked 246 days. During this period, he was credited with 415,245.58 rubles.

There are 21 working days in August 2015.

Kondratiev’s average salary for the month in which the material damage occurred (August 2015) is:
RUB 415,245.58 : 246 days × 21 days = 35,447.79 rub.

Since the average monthly salary is more than the amount of damage, by order of the manager, 12,000 rubles are withheld from Kondratyev. Moreover, from each of his salaries - no more than 20 percent.

An example of calculating material damage recovered from an employee. An agreement on full financial liability has been concluded with the employee

In September 2015, the organization discovered a shortage of money in the cash register in the amount of 52,000 rubles. With cashier A.V. Dezhneva entered into an agreement on full financial liability. She admitted her guilt.

During the period from September 2014 to August 2015, Dezhneva worked 246 days. During this period, she was credited with 402,345.76 rubles.

There are 22 working days in September 2015.

Dezhneva’s average salary for the month in which the material damage occurred (September 2015) is:
RUB 402,345.76 : 246 days × 22 days = 35,982.14 rub.

Since the average salary is less than the amount of damage, by order of the manager, Dezhneva is withheld 10,000 rubles. Moreover, from each of her salaries - no more than 20 percent.

For five months, the accountant withheld 2,000 rubles from Dezhneva’s salary. Dezhneva refused to reimburse the rest of the damage and quit. The organization went to court to recover funds.

An example of calculating an employee’s salary, taking into account deductions within his average earnings

On January 13, 2015, due to the fault of employee A.S. Kondratiev printer failed. An agreement on full financial responsibility has not been concluded with the employee.

The amount of material damage is estimated at 10,000 rubles.

During the period from January to December 2014, Kondratyev worked 247 days. During this period, he was credited with 400,000 rubles.

In January 2015, 15 working days.

Kondratiev’s average salary for the month in which the material damage occurred (January 2015) is:
400,000 rub. : 247 days × 15 days = 24,291.50 rub.

Since the amount of material damage does not exceed Kondratiev’s average salary, the entire 10,000 rubles can be withheld from his income.

For January 2015, Kondratyev received a salary in the amount of 29,000 rubles. Kondratiev has no children.

The personal income tax amount for January 2015 is:
29,000 rub. × 13% = 3770 rub.

The employee's income after tax is:
29,000 rub. - 3770 rub. = 25,230 rub.

The maximum amount of deductions from an employee’s monthly income is:
RUB 25,230 × 20% = 5046 rub.

The amount of damage caused by the employee is greater than this amount. However, in January, the accountant withheld only 5,046 rubles from Kondratiev’s salary. The remaining 4954 rubles. (10,000 rubles - 5,046 rubles) the organization will deduct from the employee’s salary in the following months.

Deductions from compensation payments

Situation: is it possible to withhold the amount of material damage from compensation payments to an employee for the use of his personal property and from daily allowances?

Answer: yes, you can. But only if the employee has written a statement of consent to the retention.

At the initiative of the organization, it is impossible to deduct the amount of material damage from such payments. This conclusion can be made on the basis of Article 137 of the Labor Code of the Russian Federation. It says that deductions at the initiative of the organization should be made from salaries. Compensation payments(daily allowances, compensation for the use of personal property), guaranteed by the Labor Code of the Russian Federation (Articles 168 and 188 of the Labor Code of the Russian Federation), do not apply to wages (Part 1 of Article 129 of the Labor Code of the Russian Federation). At the same time, labor legislation does not establish any restrictions on deductions that an organization makes not on its own initiative, but at the request of an employee. Therefore, if such a statement is made, the amount of material damage can be withheld from any payments.

If the employee does not agree to retention, act as such. Invite him to voluntarily compensate for the amount of material damage exceeding his average monthly earnings. He can:

Contribute the required amount to the cashier;

With the consent of the organization, provide it with property equivalent to the damaged one (repair the damaged property);

Compensate for damage by installments.

This procedure is provided for in Article 248 of the Labor Code of the Russian Federation.

If the employee refused to voluntarily compensate for the damage or did not agree with its assessment, then he will have to go to court to repay the loss. You will also have to go to court if the withholding order was issued later than a month after determining the amount of damage (Article 248 of the Labor Code of the Russian Federation).

At the same time, the organization has the right to fully or partially refuse to recover damages from an employee (Article 240 of the Labor Code of the Russian Federation).

An example of an organization refusing to collect material damage from an employee’s salary

In January, the organization discovered a shortage of money in the cash register in the amount of 52,000 rubles.

With cashier A.V. Dezhneva entered into an agreement on full financial liability.

The employee admitted her guilt.

Dezhneva’s average salary in January was 10,000 rubles. This is less than the amount of damage (RUB 52,000). Therefore, by order of the head of the organization, only 10,000 rubles are withheld from the employee. The remaining amount is 42,000 rubles. (52,000 rubles - 10,000 rubles) Dezhneva refused to pay.

To recover this amount, the organization must go to court. However, the organization did not do this.

Deadline for going to court

It happens that the amount of damage exceeds the employee’s average earnings. The employer cannot deduct more from him. Then the only one the right decision will go to court. The same applies to the situation when an employee quits without compensating for all the employer’s losses, as well as when he refuses to compensate for damages voluntarily.

At the same time, it is very important to comply with the deadline set for employers to go to court. Namely one year. After all, if you miss it, you won’t be able to compensate for the damage at all. This procedure is provided for in Part 2 of Article 392 of the Labor Code of the Russian Federation.

In any case, the court will accept the statement of claim even after the deadline has expired. However, the refund will be denied. But if you present to the court valid reasons for missing the deadline, then it can be reinstated (Part 3 of Article 392 of the Labor Code of the Russian Federation).

Under good reasons understand exceptional circumstances beyond the employer’s will that prevented the filing of a claim. For example, a natural disaster or other force majeure situation that cannot be influenced (resolution of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 No. 52).

How do you count the year for filing a claim? Count it from the date the damage was discovered. That is, from the date of completion of the inventory, during which the amount of damage received was identified or recorded. In this case, consider the period itself to end on the corresponding date. last year term. Moreover, if the last day of the deadline falls on a non-working day, then it is transferred to the next working day. This is exactly the procedure provided for calculating deadlines in parts 3 and 4 of Article 14 of the Labor Code of the Russian Federation.

In practice, a compensation agreement with an installment plan is often signed with the employee. But the guilty do not comply with it. In such circumstances, the period for the employer to go to court is counted from the date when the person violated the terms of the installment plan. This is, in particular, indicated in the ruling of the Supreme Court of the Russian Federation dated July 30, 2010 No. 48-B10-5.

Waiver of Damage Lien

The employer has the right to refuse to recover damages from the employee. Refusal to recover may be complete or partial, taking into account the specific circumstances in which the damage was caused. This right is granted by Article 240 of the Labor Code of the Russian Federation.

Refusal to recover damages is permissible regardless of the following factors:

The type of liability the employee bears (limited or full financial liability);

Form of ownership of the organization.

This is stated in paragraph 6 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52.

Exempt the employee from compensation for material damage by order.

Question:
The employee made a mistake when performing work, which led to additional expenses (material). The employee wrote an explanatory note and admitted guilt.
Is it possible to deduct from the salary the amount of damage caused to the employer?

Answer:
According to Part 1 of Art. 130 Labor Code of the Russian Federation withholdings from wages employee may be carried out by order of the employer. But the law establishes restrictions on deductions from wages: in accordance with Part 1 of Art. 137 of the Labor Code of the Russian Federation, deductions from an employee’s salary are made only in those cases provided for by the Labor Code of the Russian Federation and other federal laws. The Labor Code of the Russian Federation allows deductions from the employee’s wages within the framework of financial liability to the employer (Part 1 of Article 248 of the Labor Code of the Russian Federation), but in compliance with a certain procedure.
So, in accordance with Part 1 of 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. Direct actual damage is understood as a real decrease in the employer’s available property or deterioration in the condition of said property (including property of third parties located at the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to make costs or excessive payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties (Part 2 of Article 238 of the Labor Code of the Russian Federation). According to Part 1 of Art. 246 of the Labor Code of the Russian Federation, the amount of damage caused to the employer in the event of loss and damage to property is determined by actual losses, calculated on the basis of market prices prevailing in the area on the day the damage was caused, but not lower than the value of the property according to data accounting taking into account the degree of wear and tear of this property.
At the same time, by virtue of Part 1 of Art. 233 of the Labor Code of the Russian Federation, the financial liability of a party to an employment contract occurs for damage caused by it to the other party to this contract as a result of its culpable unlawful behavior (actions or inaction), unless otherwise provided by the Labor Code of the Russian Federation or other federal laws.
Thus, financial liability occurs in the simultaneous presence of the following conditions: the presence of damage; unlawful behavior (actions or inaction) of the perpetrator; causal connection between the unlawful act and material damage; guilt in committing an unlawful act (inaction). The absence of at least one of these conditions excludes the possibility of bringing the employee to financial liability (see, for example, letter of the Federal Service for Labor and Employment dated October 19, 2006 N 1746-6-1). To establish these circumstances, Article 247 of the Labor Code of the Russian Federation provides for the employer’s obligation to conduct an inspection, including requesting a written explanation from the employee to establish the cause of the damage.

M.A. Kokurina, lawyer

How to recover damages from an employee when the company’s losses are his doing

Troubles are unpredictable things; they can happen even in a well-functioning work process. The driver got into an accident in a company car, the machine burned out due to improper operation, the goods were taken out of the warehouse while the guards basked in the arms of Morpheus. Or potential clients they didn’t decide to work with you because your business trip employee undermined the company’s image by showing up drunk.

In all such situations, the company management has only one desire - to compensate for losses caused by the employee. But is this always possible and, if so, how should one proceed so that, in principle, it is possible to hold the employee financially liable and obtain compensation for damages from him?

Be that as it may, keep in mind that the accountant’s participation in the “materially responsible” procedure will most likely not be limited to just calculating shortages during inventory or losses from damage to property. Part 3 Art. 11, part 1 art. 30 of the Law of December 6, 2011 No. 402-FZ; clause 27 of the Regulations, approved. By Order of the Ministry of Finance dated July 29, 1998 No. 34n. Surely you will have to participate in an internal investigation, prepare various accounting papers for management to sign, and generally suggest what other formalities must be followed to recover damages from the culprit.

We confirm the amount of damage caused to the company and the employee’s guilt

In order to have time to recover damages from the culprit by order of the manager (that is, without a court decision), registration of all necessary documents you have only 1 month from the date of final determination of the amount of damage Art. 248 Labor Code of the Russian Federation. And it is safer to take this date as the day the inventory is completed or the inspection of damaged property is carried out.

We are creating a commission for an internal investigation

Such the commission is needed to establish and confirm two things:

• exact amount of damage. Keep in mind that the amount of damage can only be calculated based on the book value (residual value for fixed assets) and Art. 246 Labor Code of the Russian Federation. The fact is that when calculating damages at market prices, you are recovering lost profits from the employee, and this is unlawful. Art. 277 Labor Code of the Russian Federation; clause 9 of the Resolution of the Plenum of the Supreme Court of November 16, 2006 No. 52 (hereinafter referred to as Resolution No. 52). Let's say goods are stolen. When determining the amount of damage, their purchase price must be taken into account. If you calculate damages based on the sales price, this will result in the employee being charged both direct damages and lost profits. And in a situation where, due to a drunk employee of your company, counterparties refuse to conclude an agreement with you, it will not be possible to recover damages from the employee, because such a refusal is a lost profit for the company clause 2 art. 15 Civil Code of the Russian Federation;
• the possibility of bringing a specific employee to financial responsibility. To do this, the following five conditions must be simultaneously met: Art. 233 Labor Code of the Russian Federation; clause 4 of Resolution No. 52.

CONDITION 1. Causing direct actual damage to company property. This means that the employer has Art. 238 Labor Code of the Russian Federation:

• <или>the amount of property has decreased;
• <или>the condition of the property has deteriorated;
• <или>there was a need to spend money on the acquisition, restoration of property or compensation for damage caused by the employee to third parties.

CONDITION 2. Illegality of employee behavior, that is, his failure to fulfill his labor duties clause 4 of Resolution No. 52. For example, an employee violated internal labor regulations, terms of an employment contract, provisions job description, with which he was familiarized with signature.

Attention

If at least one of the conditions for bringing an employee to financial responsibility is not met, not a penny can be recovered from him for the damage he caused. Appeal rulings of the Vologda Regional Court dated April 17, 2013 No. 33-1755/2013; Khabarovsk Regional Court dated September 21, 2012 No. 33-5957/2012.

CONDITION 3. Cause-and-effect relationship between the employee’s behavior and the resulting damage. That is, it is necessary to prove that the damage arose precisely as a result of the employee’s unlawful behavior, and not for any other reasons. Suppose, as a result of the investigation, the commission found out that the storekeeper did not check the alarm connection in the warehouse. Wherein:

• <если>it was turned off and theft occurred, then there is a cause-and-effect relationship;
• <если>it was included, but the theft still occurred, then there is no cause-and-effect relationship between the employee’s behavior and the resulting damage.

CONDITION 4. The employee's fault for causing the damage. Guilt can manifest itself in two forms clause 3 art. 243 Labor Code of the Russian Federation:

• <или>intent. That is, the employee:

• was aware of the illegal nature of his behavior;
• foresaw that his behavior could cause property damage;
• desired/consciously allowed such consequences to occur;

• <или> carelessness. In other words, the employee was aware of the illegal nature of his behavior and at the same time:
  • <или>foresaw the possibility of harmful consequences, but hoped to prevent them without sufficient grounds;
  • <или>did not foresee the possibility of harmful consequences, although he should have and could have foreseen.

CONDITION 5. There are no circumstances excluding the employee’s liability. There are only four such circumstances Art. 239 Labor Code of the Russian Federation. If during the investigation at least one of them is revealed, the employee cannot be held financially liable and damages cannot be recovered from him.

Even if the culprit confirms in writing his willingness to pay compensation to the company, advise the manager not to refuse to conduct an internal investigation. It is the employer's responsibility Art. 247 Labor Code of the Russian Federation, without fulfilling which the employee will subsequently be able to challenge in court the holding of financial liability and achieve recognition of voluntary compensation for damage as illegal Appeal ruling of the Belgorod Regional Court dated December 4, 2012 No. 33-3846.

How many people should be included in the service commission and who exactly it should be is not established by law. Therefore, the manager independently decides who is needed to investigate the causes of damage. It can be:

• company employees;
• specialists performing specific duties within the framework of a civil contract. Let's assume you don't have an expert on staff who could determine the exact causes of the breakdown. Then you invite a specialist, concluding an agreement with him for the provision of consulting services;
• outsiders who are willing to participate in the investigation. For example, due to the fault of the seller in the store, the emergency fire alarm went off and the goods were damaged. There were buyers there at the time and they were willing to take part in the investigation. There is no prohibition for this. But usually outsiders are not made members of the commission, but witness statements from their words are recorded, which are attached to the investigation materials.

To create a commission, you need to issue an order in any form, signed by the head of the company.

Order No. 3

Moscow

In connection with the discovery of a breakdown of the property of Vash Uyut LLC (inspection report for broken equipment dated 01/09/2014 No. 1-inspection) in accordance with Art. 247 Labor Code of the Russian Federation

I ORDER:

1. Form a commission to investigate the fact of damage to Vash Uyut LLC, consisting of:
- Chairman of the Commission - Leading Engineer Chief Moisey Sergeevich;
- members of the commission:

– accountant Elena Mikhailovna Accountant;
– HR inspector Irina Anatolyevna Personnel.

2. Empower the commission to demand explanations from employees of Vash Uyut LLC and other witnesses, to collect and study documents, photographs and videos related to the fact of damage being investigated.

3. Entrust the commission conduct an internal investigation by January 23, 2014. The legislation does not provide for a time period for conducting an inspection. Set it taking into account the circumstances (for example, whether it is necessary to collect testimony from witnesses during the investigation, call experts), as well as taking into account the one-month period for issuing an order from the manager to recover damages

During the investigation it is necessary to establish:
- what is the exact amount of direct actual damage caused to the company;
- whether the behavior of the employee suspected of causing damage was unlawful;
- whether the unlawful behavior of the employee suspected of causing damage caused damage to the company;
- whether the employee suspected of causing the damage is guilty;
- are there any circumstances that exclude the employee’s financial liability ( irresistible force, normal economic risk, extreme necessity and necessary defense).