Responsibility for material damage caused is the duty of the employee to compensate the damage to the institution, enterprise, entrepreneur, organization. An employer may also be held liable for violation of employee rights, after which he will pay compensation. A financial liability may be general or partial. To get a full refund, you must follow the procedure for bringing an employee to liability.
What liability is considered material?
The contract prescribes an exact definition of this concept, which may arise in case of violations committed by the employee in the course of labor activity. An employee will be attracted to her in any case, even if previously had other types of financial obligations.
When an employment contract is signed, a liability agreement is also concluded. It must necessarily indicate the reasons why one of the parties may be considered guilty. This agreement exists in 2 copies. Such an agreement will be valid all the time while the employee is at the enterprise. In any place, the procedure for bringing an employee to liability must be the same.
What is needed to bring to fulfillment of obligations?
The current legislation provides the employer with many legal instruments. They are able to help him fully repair the damage and avoid it in the future. Also, this legislation outlines the procedure for bringing an employee to liability.
Damage is the damage or destruction of the employer's property or the deterioration of its condition, which may result in new costs for the purchase or repair. This category also includes property belonging to other persons who are not related to the organization, but it was the employer who undertook to maintain their safety (article 237 of the Labor Code of the Russian Federation).
Under what conditions can one be held accountable?
In order to receive compensation from an employee, you must have these criteria and comply with the procedure for bringing the employee to liability.
- The wrongfulness of his actions. It is expressed in the fact that the damage was caused as a result of non-fulfillment or improper fulfillment by the employee of his own obligations, which were provided for by the labor contract.
- The presence of guilt. This means that a person understood the illegal nature of his own behavior and realized what results it could lead to. If the employee caused damage intentionally or by accident, then he will also be punished. In the first case, the employee will be considered guilty, despite the fact that he realized the unlawfulness of his own actions, but arrogantly hoped to warn them, or failed to predict the consequences, but this is his responsibility.
- Proof of damage upon its location (damage, loss, breakdown of equipment and so on).
- Evidence of the connection in which the employee and the damage are related.
Under what circumstances is an employee released?
Moreover, article 238 of the Labor Code of the Russian Federation provides for some situations and conditions for bringing an employee to liability, in which case the payment of funds may not occur:
- The appearance of harm due to natural or other events, such as earthquakes, wars, revolutionary uprisings, hurricanes and other natural and social phenomena. The employee cannot influence or warn them about the listed incidents.
- The employee acted in the circumstances of the last need or the necessary defense to save his life.
- Guilty took economic risk justified in this area of work.
- The owner voluntarily agreed to refuse compensation for his own property losses.
- When conditions were not provided for the storage of property entrusted to the employee.
General procedure for attracting
What is the procedure for bringing an employee to liability? He is as follows:
- Identification of the cause and fact of damage. This can happen during the audit or inventory process. With all this, it is very important that this fact is officially documented by other higher employees.
- Organization of internal expertise. It is carried out so that management is able to confirm the employee’s guilt with high probability, as well as understand the approximate damage. The amount of harm inflicted can be determined in accordance with Articles 245 and 246 of the Labor Code of the Russian Federation. So, in case of damage to property, real losses are calculated on the basis of its book price and taking into account depreciation. In other words, in this case it is strictly forbidden to rely on the market price, as well as to recover the lost profit from the employee.
- Request to the employee to write an explanatory note. If he did not agree to provide it, then an act must be drawn up in the presence of eyewitnesses.
- Drawing up an act or opinion on the results of the audit. It solves the question of how the compensation will be paid and lists all the evidence that will prove the guilt of a particular employee. The document must be executed within a month from the moment of determining the amount of losses and is compiled in random form. In accordance with the Labor Code of the Russian Federation 20, the procedure for bringing an employee to liability can only be framed in this form.
How can I recover the amount of damage?
Current legislation provides for partial and full recovery of damage from an employee. With all this, according to the generally accepted rule, the employee is subject to limited liability, in which the offender pays compensation in the amount of his average monthly earnings. The total amount of this payment is fixed and established by the PP of the Russian Federation “On the specifics of the procedure for calculating the average wage” dated November 23, 2006 No. 921. Namely, in such variants, a settlement period of one year is used from the date of the injury, if it is known, or from the date its location.
But in exceptional cases, the employee will reimburse the damage in a partial amount, and if the amount is more than his salary, then he will be calculated in parts. The grounds for bringing an employee to liability, which were provided for in Article 242 of the Labor Code of the Russian Federation, are presented below:
- lack of valuable things entrusted to the employee;
- intentionally causing harm;
- causing damage while being drunk;
- damage by a criminal method / deed in accordance with the Labor Code of the Russian Federation, established by a court / state body;
- distribution of secrets when signing a non-disclosure document;
- damage during non-working hours or during a break.
What are the methods of collecting debt?
Based on current laws, we can distinguish several methods for obtaining compensation from a delinquent employee. The option will be selected depending on the actions of the accused. It should be noted that the dismissal of the employee does not relieve him of the obligation to pay the debt, and if he refuses to make payments, then the employer can achieve this through the court.
With general agreement
If there is no conflict between the management and the employee and one of the parties pleads guilty, an agreement on voluntary compensation is drawn up, and the procedure for bringing the employee to full material liability. The relevant aspects are presented below:
- the required percentage of the monthly salary;
- time for payment and the form in which it will be made, for example, by installments;
- in what ways will payment be made.
With cancellation of payment payments
This method is more common than others. It consists in performing all the steps of bringing an employee to material liability outlined before, and withholding the required amount from the employee’s salary based on the order of the manager. The document must be executed within 30 days from the time that the fact of damage was established and sent to the accounting department. After that, an order is made to hold the employee liable.
It is necessary to pay attention to the fact that the deduction cannot be higher than the monthly salary, and also cannot exceed 20% of its total amount.
Through the court
If the perpetrator evades duties, the employer must go to court. In court, they can issue an order and procedure for bringing an employee to full liability. With all this, in the appeal you must indicate:
- what position the employee is in;
- under what circumstances he was entrusted with property, subsequently damaged;
- when and how property was damaged;
- whether a check was made at the site of the damage;
- what the employee says and how he explains the circumstances of the breakdown;
- reason to demand from the employee a particular amount.
It must be emphasized that it is necessary to file a claim within the limitation period of 3 years from the date of the damage. With all this, the current regulatory legal acts allow the submission of the appeal even after the expiration of this period, but the plaintiff will have to provide conclusive evidence and explanations of why he failed to apply to the court in a timely manner.
In order to bring an employee to disciplinary and material liability, the following points should be considered:
- according to the criteria of contracts (labor or liability), the employer's obligation to the employee cannot be higher, and the employee lower than it is established by the Labor Code of the Russian Federation or other national laws;
- when an employment contract is terminated, none of its parties is exempted from the fulfillment of its conditions.