According to the time sheet on 01/09/2014 N.V. Ochumeloruchkin worked on the territory of the office of Your Comfort LLC. He installed and connected the air conditioning system in office No. 14. The McQuiy M5WMY15LR / M5LCY15FR air conditioner was broken by Ochumeloruchkin due to non-compliance with the rules of operation and safety precautions when installing such equipment.

According to the act of inspection of a faulty air conditioner dated 01/09/2014 No. 1-inspection, the equipment cannot be brought into working condition.

The amount of damage in connection with the breakdown of the air conditioner amounted to 32,565 (thirty-two thousand five hundred and sixty-five) rubles. write down exact amount of damage based on the results of the inventory (inspection) and service checks and clause 13 of Resolution No. 52:
<или>it is possible to determine the exact date of its infliction, then on the day of its infliction;
<или>it is impossible to establish the exact date of its infliction, then the day it was discovered

According to clause 5.4 of the job description, with which N.V. Ochumeloruchkin was familiarized against signature, the installation engineer must know and comply with the installation technology of the installed equipment. N.V. Ochumeloruchkin did not fulfill such obligations. Indicate what illegal action (inaction) the employee committed

01/09/2014 with N.V. Ochumeloruchkin was requested to provide an explanation of what had happened, which he had to provide by 13.01.2014 inclusive. Explanation of N.V. Ochumeloruchkin refused to give, about which an act was drawn up on 01/14/2014.

Based on the established facts, the commission concluded that N.V. Ochumeloruchkin was admitted guilty action, expressed in non-compliance with their official duties. Establish the fault of the employee in causing damage

Failure to follow the rules for working with the equipment has led to its breakdown, and it cannot be repaired. Confirm the causal relationship between the employee's behavior and the resulting damage

According to the results of the investigation, the commission did not reveal any circumstances excluding the liability of the employee.

Chairman

Commission members:

You are not required to provide the injured employee with all of the internal audit materials. But if the employee who is held liable wants to see the documents on the official investigation, then you must provide them to him. Art. 247 of the Labor Code of the Russian Federation.

We determine the limits of compensation for damage by the employee

Now it is important to correctly determine how much money can be withheld from the guilty party. After all, if you recover compensation in an amount greater than allowed by law, the court will cancel such a penalty. In addition, the organization and the manager can be fined during a labor audit. Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.

We find out whether it is possible to recover the damage in full

Full financial responsibility of the employee, that is compensation to the employer for damages in full, can only come in certain cases x Art. 243 of the Labor Code of the Russian Federation.

We calculate how much can be withheld from those from whom it is impossible to recover in full

If none of the cases listed above applies to you, then you can only recover damages from the guilty employee in an amount not exceeding his average monthly earnings.

Anastasia Morgunova, Director of the Department of Tax Consulting, Internet Accounting "My Business"

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

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

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

Occurs when the following conditions are present:

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

(in particular, the damaged property itself);

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

- causality between the illegal actions or inaction of the employee and the resulting direct actual damage. The causal relationship should be obvious. For example, an employee dropped a computer on the floor, which then stopped working;

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

cause damage to the employer.

Confirmation: Part 1 of Art. 233 of the Labor Code of the Russian Federation, 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 guilt of an employee, 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 (unless, of course, he can confirm their presence with sufficient evidence). This is an emergency, force majeure, normal economic risk, necessary defense, as well as the failure of the employer to ensure proper 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 regulatory legal acts, in particular, Art. 401 of the Civil Code of the Russian Federation, art. 37, 39 of the Criminal Code of the Russian Federation, Art. 2.7 of the Code of Administrative Offenses of the Russian Federation. par. 2 p. 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 from practical examples how to apply the above concepts to labor relations.

What is the liability of the employee to the employer?

The responsibility of the employee lies in the obligation to compensate the direct actual damage caused to the employer (losses that can be accurately calculated). In this case, the employer is not entitled to recover lost income (lost profit) from the employee.

Direct actual damage means (in aggregate):

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

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

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

For example, direct actual damage can include:

Lack of monetary or property values;

Damage to materials and equipment;

Expenses for the repair of damaged property;

Payments for forced absenteeism or downtime;

The amount of the fine paid, which is applied to the employer through the fault of the employee.

Damage caused by an employee to third parties means all amounts paid by the employer to third parties in compensation for damage. In this case, the employee can be held liable only within the limits of these amounts and provided that there is a causal relationship between his guilty 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 the damage either in the amount of his average monthly earnings, or in full. It depends on what financial responsibility is assigned to the employee.

As a general rule, an employee is limited liability for the damage caused - within the limits of their average monthly earnings (Article 241 of the Labor Code of the Russian Federation). But in some cases, it may be assigned full liability, 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 liability are listed in Art. 243 of the Labor Code of the Russian Federation. For example, it may be assigned to an 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 liability 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, being in a state of intoxication, having the intent to harm the employer, and in some other cases.

Such liability also occurs in the case when the employee was entrusted with valuables under an agreement on full 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 liability can only be concluded with an adult employee (over 18 years old).

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 the conclusion of an agreement on full liability as a "panacea for all ills." Some even offer to sign such a document to all, without exception, employees admitted to the organization. However, it should be noted that agreements on full liability can be concluded only with employees whose positions (works) are included in the Lists, approved. Decree of the Ministry of Labor of Russia No. 85 dated December 31, 2002 (by financially responsible persons). In other cases, the existence of such agreements is not justified - they will not have legal force. This is clearly demonstrated by case law.

Several employers tried to recover from the employees through the court the damage caused in full, however, compensation for damage was recognized as legal only in the amount of the average monthly earnings of the defendants. The fact is that agreements on full liability were illegally concluded with employees who did not fall under the above lists (a specialist in the production department and a watchman). These workers 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 (Ruling of the Supreme Court of the Russian Federation No. 18-В09-72 of November 19, 2009, Ruling of the Moscow City Court No. 33-19538 of June 24, 2011, Definition 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?

Determine the amount you need (as a general rule) based on market prices for property which has suffered damage. They must be valid on the day the damage was caused (for example, on the day a shortage of one or another 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 of Art. 246 of the Labor Code of the Russian Federation.

At the same time, separate normative acts may establish a different procedure for determining the amount of material damage. For example, for theft or shortage of narcotic drugs, psychotropic substances, the 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 of Art. 246 of the Labor Code of the Russian Federation.

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

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, in order to establish the amount of damage (losses) caused and the reasons for its occurrence, the employer must to inspect. For this, 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 a necessary defense. In this case, the material liability of the employee is completely excluded (Article 239 of the Labor Code of the Russian Federation).

If facts of theft, abuse or damage to property are revealed, the above verification is carried out in the form inventory(Clause 2, Article 12 of Federal Law No. 129-FZ of November 21

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

Confirmation: clause 4.1 of the Guidelines, approved. Order of the Ministry of Finance of Russia No. 49 dated June 13, 1995

The amount of material damage received as a result of an accident that occurred through the fault of an employee can be established without an internal audit. This is due to the fact that the rationale for the causes of material damage and its amount can be:

Documents received from the traffic police on the fact of the accident (as confirming the cause of the damage);

Documents obtained from repair and insurance companies (confirming the amount of damage caused by the guilty worker).

After the amount of material damage is determined, the organization needs to demand from the employee a written explanation of the reasons for the damage. In case of refusal (evasion) of the employee from providing such an explanation, an act must be drawn up.

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

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

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

The wiring in this case will be as follows:

DEBIT 73-2 (76-2) CREDIT 94

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

The market value of the property, which is reimbursed by the guilty person, may exceed the value at which the property is reflected in the accounting. 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 the accounting was charged at the expense of the financially responsible person (other guilty person);

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

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

As the funds due from him are recovered from the guilty person, the specified amount is written off to other income in proportion to the repaid debt:

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

The repayment of the 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 value of the missing valuables as part of other income is reflected.

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

DEBIT 94 CREDIT 98

Reflected shortage related to past periods, but identified in the reporting period;

DEBIT 73-2 (76-2) CREDIT 94

The shortage identified in the reporting period, but related to previous periods, was attributed to the financially responsible person (other guilty person).

As the amounts due from him are recovered from the guilty person, the shortage is written off as other income:

DEBIT 98 CREDIT 91-1

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

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

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

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

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

Accountable amounts not returned on time, issued to the employee for the performance of a job assignment, as well as withholding such amounts from the employee's salary;

Lack of property that belongs to the organization, but is not listed on balance sheets, if the reason for the shortage is the fault of the employee (financially responsible or other guilty person), and others.

What is the maximum amount of deductions for material damages from an employee's salary?

The maximum amount of deductions for the amount 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 the monthly salary of an employee (part 1 of article 138 of the Labor Code of the Russian Federation).

The amount of damage that exceeds the average monthly earnings of an employee (when brought to full 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).

The employee can voluntarily compensate for the damage caused by him (both with limited and with full 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 damage, in which it is necessary to indicate the specific terms of payments (part 4 of article 248 of the Labor Code of the Russian Federation).

The employer can confirm his consent to installment payment:

Either a permissive inscription (for example, “I do not mind” or “allow”) on the written obligation of the employee;

Or a separate administrative document in which the procedure for settlements will be prescribed (for example, an order, an order).

If the 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 courts.

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

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

Answer:
According to Part 1 of Art. 130 of the Labor Code of the Russian Federation, deductions from an employee's salary can be made at the direction of the employer. But the legislation establishes restrictions on deductions from wages: in accordance with Part 1 of Art. 137 of the Labor Code of the Russian Federation, deductions from the employee's salary are made only in those cases that are 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 as part of liability to the employer (part 1 of article 248 of the Labor Code of the Russian Federation), but subject to 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 the direct actual damage caused to him. Direct actual damage is understood as a real decrease in the employer’s cash property or deterioration 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 (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 in force in the area on the day the damage was caused, but not lower than the value of the property according to accounting data, taking into account the degree of depreciation of this property.
At the same time, by virtue of Part 1 of Art. 233 of the Labor Code of the Russian Federation, the material 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 guilty unlawful behavior (action or inaction), unless otherwise provided by the Labor Code of the Russian Federation or other federal laws.
Thus, liability arises under the simultaneous presence of the following conditions: the presence of damage; unlawful behavior (action or inaction) of the tortfeasor; a causal relationship between the illegal 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 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 obligation of the employer to conduct an inspection, including demanding a written explanation from the employee to establish the cause of the damage.

Any employee in the performance of his duties uses various company property, such as office equipment, equipment, tools, furniture, money, etc.

Therefore, along with the main ones, the duties of the employee include careful attitude to the property of the company entrusted to him (paragraph 7, part 2, article 21 of the Labor Code of the Russian Federation).

Imagine a situation - an employee lost a company laptop. An investigation was carried out, the fault of the employee was established.

Determine the amount of damage

The amount of damage is determined by actual losses on the day of its infliction at market prices. But at the same time, the amount of damage cannot be lower than the residual value of the property according to accounting data (part 1 of article 246 of the Labor Code of the Russian Federation).

If it is impossible to establish the day of damage, the amount of damage is determined on the day of its discovery (paragraph 2, clause 13 of the decision of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 No. 52).

When the amount of damage is determined, the employer has the right to involve the employee in (paragraph 6, part 1, article 22 of the Labor Code of the Russian Federation).

Three ways to make amends

• on a voluntary basis (part 4 of article 248 of the Labor Code of the Russian Federation);
• within the limits of their responsibility within the framework of labor relations (Article 241 of the Labor Code of the Russian Federation);
• forcibly, on the basis of a court decision (parts 2 and 4 of article 248 of the Labor Code of the Russian Federation).

Each of the methods has its own characteristics.

Compensation for damages at the good will of the employee

Most The best way conflict resolution - the voluntary consent of the employee to compensate for the damage. This method has several advantages. The parties to an employment contract may:

• establish any amount of deduction, for example, at a time in the full amount, even if it exceeds 20% of the employee's salary;
• agree on any terms, forms and methods of debt payment.

For example, an employee can make a lump sum payment or installment payment. In addition, you can agree with the employee on compensation for damages not in cash, but in kind. That is, the employee can compensate for the damage by providing equivalent property or fixing the damaged one (part 5 of article 248 of the Labor Code of the Russian Federation).

An agreement with an employee on the voluntary repayment of his debt can be drawn up in different ways. For example, you can enter into a separate agreement or ask the employee to write a receipt or statement.

The following situation is possible: the employee gave a written obligation to compensate for material damage, and after that he decided to quit and refuses to pay the debt. The employer is obliged:

• issue an order to dismiss an employee;
• issue a work book;
• make a final settlement with the employee. At the same time, without the consent of the employee, the accountant does not have the right to simultaneously withhold the outstanding amount of damage if the total amount of all deductions exceeds 20% of the payments due to him upon dismissal (part 1 of article 138 of the Labor Code of the Russian Federation). In this case, it is possible to recover the outstanding debt only by force, that is, through the court (part 4 of article 248 of the Labor Code of the Russian Federation).

Liability under the Labor Code

If the employee himself does not agree to pay the damage, the amount of compensation will depend on what kind of material responsibility is assigned to him. She may be:

• limited - within the average monthly earnings of an employee (Article 241 of the Labor Code of the Russian Federation);
• full - regardless of the size of the employee's salary (Article 242 of the Labor Code of the Russian Federation).

Limited Liability

In most cases, the material liability of an employee is limited (Article 241 of the Labor Code of the Russian Federation). That is, the employee is obliged to reimburse the amount that does not exceed the size of his average monthly earnings.

We collect only the average monthly salary

The Labor Code does not contain a list of situations in which an employee is liable only within the limits of his average monthly salary. In practice, employees have limited liability in the following cases:

• in case of damage to equipment, tools, materials;
• incorrect preparation of documents when it causes material damage to the company (for example, short delivery of goods);
• the company did not receive the money due to the negligent attitude of the employee to his official duties;
• The company paid a fine for its employee.

Calculation of average monthly earnings

Average monthly earnings is the maximum amount that can be recovered from an employee with limited liability. How to calculate it?

The legislation does not provide for a separate methodology for calculating the average monthly earnings for situations when it needs to be recovered from an employee on account of the damage caused to him.

In cases where it is a question of keeping the average earnings for the employee, the accountant uses a single calculation procedure based on the average daily (hourly) earnings, which is established:

• article 139 of the Labor Code;
• Regulation on the peculiarities of the procedure for calculating the average wage, approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922 (hereinafter - the Regulation).

When calculating the amount of material damage, it is necessary to use exactly general rules, since the accountant has no other calculation option.

The total amount of the employee's wages for the 12 months before the month of signing the withholding order must be divided by the number of days (hours) worked in this period. Multiply the resulting value by the number of working days (hours) according to the schedule of the guilty employee in the month of signing the order (clause 4 of the Regulation).

Example 1 We calculate the average monthly income

In November 2015, a laptop was lost through the fault of an employee. An internal investigation has been carried out. The worker pleaded guilty. The amount of material damage was estimated at 27,150 rubles.

The contract on full liability with the employee is not concluded. The fact of the transfer of the laptop is fixed. This means that you can recover no more than the amount of his average monthly earnings.

The order to recover damages from the employee was signed in November 2015.

An employee works a 40-hour, five-day work week. The billing period is from November 1, 2014 to October 31, 2015, of which 245 days have been worked. Wages for these days amounted to 330,000 rubles.

Solution

An employee has a daily record of working time. Therefore, to calculate the average monthly earnings, you first need to determine the average daily earnings.

The average daily earnings will be 1346.94 rubles. (330,000 rubles : 245 working days).

The damages order was signed in November 2015. This month has 20 business days. This means that the amount of average monthly earnings will be 26,938.8 rubles. (1346.94 rubles × 20 working days).

The amount of material damage is 27,150 rubles.

The company will not be able to keep it completely, only 26,938.8 rubles. However, other restrictions must be observed.

Maximum amount withheld per month

In addition to the general limit on the amount of deductions, there is another limitation. With each payment of salary, you cannot withhold more than 20% of its amount (part 1 of article 138 of the Labor Code of the Russian Federation). If the amount of damage is greater, the recovery process will take several months.

Only in some cases it is possible to collect more than 20% of the salary. In particular, up to 70% of the salary can be withheld when recovering damage caused by a crime (part 3 of article 138 of the Labor Code of the Russian Federation). But the fact of the crime is established by the court (part 2 of article 8 of the Criminal Procedure Code of the Russian Federation).

The amount of deduction is calculated based on the employee's salary minus personal income tax (clause 1, article 99 of the Federal Law of October 2, 2007 No. 229-FZ "On Enforcement Proceedings").

Example 2 Calculate monthly deduction limit

Let's continue example 1. The amount of material damage is 27,150 rubles. The Company is entitled to retain only RUB 26,938.80. What amount can be withheld from an employee if his salary for November was 57,000 rubles?

He does not receive standard tax deductions.

Solution

Maximum amount of damages to be retained

No more than 9918 rubles can be withheld from the income for November per employee. [(57,000 rubles - 7410 rubles) × 20%].

Actual retention amount

9918 rub.< 26 938,8 руб. Из зарплаты сотрудника за ноябрь 2015 года бухгалтер может удержать только 9918 руб. Оставшуюся сумму в размере 17 020,8 руб. (26 938,80 руб. - 9918 руб.) можно будет удержать из зарплаты за следующие месяцы.

Full liability

Full liability implies compensation by the employee for the entire amount of damage (part 1 of article 242 of the Labor Code of the Russian Federation).

Full liability agreement

An agreement on full liability can be concluded with employees of special positions or employees performing special work. These positions and works are listed in the Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85. For example, the list includes positions:

• forwarding driver;
• salesman;
• cashier;
• warehouse manager, etc.

An agreement on full liability can be concluded with managers, their deputies and chief accountants (part 2 of article 243 and part 1 of article 277 of the Labor Code of the Russian Federation).

Cases of full liability are listed in Article 243 of the Labor Code. In particular, these include the following situations:

• the damage was caused in a state of alcoholic, narcotic or other toxic intoxication;
• causing damage not in the performance of work duties by the employee;
• The employee divulged a trade secret.

Maximum deduction amount

With full financial responsibility, the employee compensates for the entire amount of damage. But even in this case, it is necessary to calculate the maximum amount of deduction for each month, since more than 20% of the salary cannot be withheld (part 1 of article 138 of the Labor Code of the Russian Federation). An example of the calculation is given above (example 2).

Reason for retention - order of the director

The head of the company has the right to decide the issue of withholding material damage from the employee. He can (Article 240 of the Labor Code of the Russian Federation):

• collect a debt in the amount of the average monthly salary (with limited material liability of the employee);
• fully or partially forgive the damage.

Any decision of the leader is issued by order. The head of the company must issue an order within one month from the date when the amount of material damage is established (part 1 of article 248 of the Labor Code of the Russian Federation).

Just do not forget that the employee must be familiarized with the order for the recovery of damage against signature. If he refuses to sign the order, they draw up an act.

For an accountant, the order is the basis for withholding the amount of damage from the employee's salary.

Compensation through the court

In some cases, the employer will still have to file a claim with the court, in particular (parts 2 and 4 of article 248 of the Labor Code of the Russian Federation):

• if the employee disputes the amount of material damage, the compensation of which is charged to him by the employer;
• the employee refuses to voluntarily compensate for material damage;
• the employer missed the monthly deadline for issuing an order for the recovery of damages;
• to recover a part of the amount of damage that exceeds the average monthly salary;
• that the employee reimburse the company for expenses that cannot be recognized as direct actual damage.

In this case, a reduced limitation period is applied - one year (part 2 of article 392 of the Labor Code of the Russian Federation).

Unfortunately, not a single employer is insured against the possibility of damage to property by an employee. Sometimes this is caused by the negligent attitude of an employee to his professional duties. It is quite natural that the employer wants to compensate for the damage caused by the employee. But can you always count on it? How to properly recover material damage from an employee? What mistakes are most often made by the employer in this case?

When does responsibility come?

The onset of liability for causing damage to the property of the employer is provided for by the Labor Code of the Russian Federation (Article 283). Liability can be characterized by two features:

• one of its parties must be an individual who works for the employer at the time of damage to property;
• the amount of liability depends on the amount of damage and the nature of the violation that led to damage to property.

Liability comes under the condition that there is:

• direct damage;
• illegal behavior, negligence, improper performance of their professional duties;
• the fault of the employee who caused the damage.

If damage to the employer's property is caused by force majeure circumstances, defense, extreme necessity, liability does not arise. Also, the employee is not responsible for property when the employer has not provided the necessary conditions for its safety.

What is financial responsibility?

The essence of liability lies in the obligation of the employee to compensate for the material loss caused by him. In this case, only damaged property is meant, lost profits are not taken into account.

The definition of material damage includes a real decrease in the quantity or deterioration in the quality of the property of the employer. For example, lack of money, damaged equipment, raw materials, expenses for paying a fine in relation to the employer, which was appointed through the fault of the employee.

What is the responsibility of an employee?

The main types of material liability of employees are presented in the table:

Full liability agreement - a guarantee or an employer's attempt to insure their property?

It is common for an employer to conclude an agreement on full liability with each hired employee. At the same time, he believes that such an action reliably insures him in the event of property damage caused by an employee. But this is not always the case. Such an agreement will not become a lifesaver for the employer in any case.

For example, the employer tried to receive compensation for damage caused by the fault of the head of the department in the performance of professional duties. However, the court denied this, despite the existence of an agreement on full liability between the employee and the organization. The reason was that the official duties of this employee did not directly include ensuring the safety of the company's property.

How to recover the damage caused?

The procedure for recovering material damage to the employer consists of several stages:

• conducting an inventory of funds;
• creation of a commission to conduct an internal investigation and establish the causes that provoked the damage;
• obtaining from the employee a written explanation of the reasons for the loss. If he refuses, then the refusal should be recorded in the act;
• calculation of the amount of damage inflicted in the market value on the day of its occurrence. At the same time, the value of the lost or damaged property should not be less than that recorded in the accounting records;
• delimitation of the degree of guilt and liability between employees if the loss was caused by the fault of several persons.

The employer has the opportunity to withhold the loss from the perpetrator not only through the court, but also in the pre-trial order.

Without recourse to the courts, a shortage is withheld, not exceeding the average monthly salary of an employee. An order to this effect must be created no later than a month after the incident occurred and the losses were calculated. If an employee objects to the actions of the employer, then he can go to court.

The parties may agree to pay damages in instalments. In this case, you should draw up a payment schedule and indicate their specific dates. If the employee took the obligation to compensate for the damage, but quit without doing this, then the employer can go to court with this. Also, only in court can the issue of recovering damages from an employee in an amount exceeding his average earnings, if he refuses to do so voluntarily, be resolved.

Reflection of damage on accounts: postings

The value of the property established during the inventory should be shown in the debit of account 94. Read also the article: → “”. This amount is recorded in the accounts as follows:

The shortage cannot be withheld from the employee if the employer does not have documentary evidence of his guilt.

The most common mistakes employers make when claiming damages

Trying to get compensation for material damage from an employee, the employer often makes the following mistakes:

• attempt to recover the damages incurred in full. Full compensation for damage is allowed only in cases strictly defined by law (Article 241 of the Labor Code). Also, the head and chief accountant of the enterprise bears full financial responsibility.;
• conclusion of an agreement with each employee on full liability in the hope of the possibility of recovering the entire loss. Even if such an agreement was concluded, but there were no legal grounds for this (the employee’s position is not in a special list, or his activity is not related to material values), then it will be declared invalid by the court;
• an attempt to recover from the employee not only the damage caused, but also lost profits. The employee is obliged to compensate only for direct loss;
• the mistake of the employer is to withhold the amount of the administrative penalty imposed on him through the fault of the employee. For example, the seller did not ensure that expired food products were removed from the shelves in a timely manner. As a result of the check, an administrative fine was imposed on the store, which the employer paid in the amount of 50,000 rubles. After that, the employer tried to withhold the amount of the fine from the seller who committed the violation, whose earnings are 22,000 rubles. The seller refused to pay damages in this amount, and the employer went to court. The court, taking into account all the circumstances, dismissed the employer's claim. In this case, he can receive compensation for the damage caused only partially in an amount not exceeding the average wage of the employee.

Answers to current questions about the recovery of material damage from an employee

Question number 1. Is it possible to repay material damage in installments?

Yes, it is possible to pay off the damage caused to the employer in installments. This is permissible subject to the mutual consent of the parties to the employment contract. To do this, it is necessary to draw up a written obligation of the employee to repay the debt in installments and indicate the payment schedule. On this obligation, the head of the enterprise must put a resolution that he does not mind. It is possible to issue an installment plan by a separate order or order, which will indicate the payment schedule.

Question number 2. Does an employer have to pay damages caused to them by an employee?

Recovery of material damage is not the responsibility of the employer. Rather, it is his right. The employer has the right to refuse this procedure if the circumstances specified in Article 240 of the Labor Code of the Russian Federation occur. These include the difficult financial situation of the employee, a small amount of damage caused, minor children who are dependent. The employer may not recover material damage either initially or refuse to recover at the stage of litigation. In this case, you must issue a waiver of claims in writing.

In most cases, the employer can recover only that part of the damage that does not exceed the average salary of the employee. The list of cases when full liability arises is established by law and the employer cannot expand it in any way. Normative acts do not establish a specific procedure for calculating average earnings for the purpose of compensating for the loss caused by an employee. When determining it, you can use the general calculation rules based on the duration of the calculation period of 12 months.

Question number 4. How much, in accordance with the law, can the employer withhold from the culprit for the damage caused?

If the case does not fall under the variant of full repayment of the cost of the loss defined by law, then the most that the employer can count on is the average salary of the employee. In a month, you can not deduct more than a fifth of earnings from earnings. If the employer believes that he has the right to demand repayment of the inflicted loss in full, and the employee does not want to do this, then such a disagreement must be resolved in court.

Question number 5. What assessment takes into account the amount of damage caused by the employee?

Answer. Without fail, the cost of the loss caused by the employee must be calculated based on market prices. But if the assessment of the missing funds in the accounting of the enterprise exceeds the market value, then the greater cost is taken as the basis for determining the amount of compensation.