Hello! Is it possible to deduct a lump sum amount of material damage discovered on the eve of dismissal in the amount of average earnings upon dismissal? Does the limit apply in this case - no more than 20%? Can deductions be made from compensation?

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). Average monthly earnings should be calculated based on the average daily (hourly) earnings and working days (hours) during the month in which the material damage was discovered. You can deduct no more than 20% from an employee’s monthly salary. If deductions are made from the last salary payable upon dismissal of an employee, the employer has the right to withhold the entire amount. The rules established by Part 1 of Article 138 of the Labor Code of the Russian Federation do not apply in this case. Since the legislation does not directly state that in the situation under consideration it is possible not to comply with the restriction established by Part 1 of Art. 138 of the Labor Code of the Russian Federation, it is necessary to obtain written consent from the employee to withhold. This will avoid arguments with him. If an employee does not agree to the deduction, he can voluntarily deposit the amount due from him to the organization’s cash desk. 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.

The rationale for this position is given below in the materials of the Glavbukh System vip version

1. Situation: How to retain debt from an employee who quits. Deductions are made at the initiative of the organization

Withhold the entire amount of debt from the last salary to be paid. Even if it exceeds 20 percent of the salary this month. The rules established by Part 1 of Article 138 of the Labor Code of the Russian Federation do not apply in this case. Based on the systemic interpretation of Articles 137, 138 and 140 of the Labor Code of the Russian Federation, the limitation on withholding in the amount of 20 percent of the due salary applies only to monthly payment of salaries. When an employee is dismissed, the full amount of the debt can be recovered. This point of view is shared by specialists from the Russian Ministry of Health and Social Development in their private explanations.*

The chief accountant advises: since the legislation does not directly state that in the situation under consideration it is possible not to comply with the restriction established by Part 1 of Article 138 of the Labor Code of the Russian Federation, obtain the employee’s written consent to withhold. This will avoid arguments with him.*

It should be noted that in the event of a lawsuit with an employee, the court may side with the latter, obliging the organization to comply with the established limit - 20 percent of the salary amount. For example, the Supreme Court of the Republic of Buryatia concluded that Article 138 of the Labor Code of the Russian Federation limits the amount of deductions for each salary payment in order to provide the employee with an amount sufficient to satisfy his basic living needs. It does not matter whether the employment relationship continues or the employee is dismissed. Consequently, when dismissing an employee, no more than 20 percent of the salary can be withheld from him (see the cassation ruling of the Supreme Court of the Republic of Buryatia dated February 27, 2012 No. 33-531).

Thus, having the written consent of the resigning employee to withhold the entire amount of his debt without restrictions, the organization will protect itself from litigation with him.

N.Z. Kovyazina

Holding order

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

First, calculate the amount of losses, which includes:
– the 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 in the part 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.

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.

In commercial organizations

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

Prepare matching statements:
- either 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 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). In this case, the average monthly earnings should be calculated based on the average daily (hourly) earnings and working days (hours) during the month in which the material damage was discovered (Article 139 of the Labor Code of the Russian Federation, clauses 9 and 13 of the Regulations approved by the Government Decree RF dated December 24, 2007 No. 922).

You can deduct no more than 20 percent from an employee’s monthly salary. 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 January, 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.

Kondratiev’s average daily earnings is 900 rubles/day. There are 15 working days in January.

Kondratyev’s average monthly earnings in January amounted to 13,500 rubles. (900 rub./day ? 15 days).

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

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

The organization identified a shortage of money in the cash register in the amount of 52,000 rubles. With cashier A.V. Dezhneva concluded an agreement on full financial liability. She admitted her guilt.

Dezhneva’s average earnings in the month the shortage was discovered is 10,000 rubles. Since the average earnings are less than the amount of damage, by order of the manager, 10,000 rubles are withheld from Dezhneva. 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 12, 2013, 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 2012, Kondratyev worked 250 days. During this period, he was credited with 200,000 rubles.

In January 2013 there are 17 working days.

Kondratiev’s average salary for the month in which the material damage occurred (January 2013) is:
200,000 rub. : 250 days ? 17 days = 13,600 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 2013, Kondratyev received a salary of 15,000 rubles. Kondratyev is provided with a standard personal income tax deduction in the amount of 400 rubles. (Kondratiev has no children).

The personal income tax amount for January 2013 is:
(15,000 rubles – 400 rubles) ? 13% = 1898 rub.

The employee's income after tax is:
15,000 rub. – 1898 rub. = 13,102 rub.

The maximum amount of deductions from an employee’s monthly income is:
RUB 13,102 ? 20% = 2620 rub.

The amount of damage caused by the employee is greater than this amount. However, in January, the accountant withheld only 2,620 rubles from Kondratiev’s salary. The remaining 7380 rubles. (RUB 10,000 – RUB 2,620) 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

Yes, you can if the employee agrees 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 carries out 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:
– deposit the required amount into the cash register;
– 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).

Waiver of Damage Lien

The employer has the right to refuse to withhold 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.

N.Z. Kovyazina

Deputy Director of the Department of Wages, Labor Safety and Social Partnership of the Ministry of Health and Social Development of Russia

Unfortunately, no employer is insured against the possibility of property damage by an employee. Sometimes this is caused by the employee’s negligent attitude towards his professional duties. It is completely natural for the employer to want to compensate for the damage caused at the expense of the employee. But can you always count on this? How to properly recover material damage from an employee? What mistakes are most often made by employers in this case?

When does responsibility come?

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

• 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 extent of the damage and the nature of the violation that led to damage to the property.

Financial liability occurs provided that:

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

If damage to the employer's property is caused by force majeure, defense, or extreme necessity, financial 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 financial liability lies in the employee’s obligation to compensate for the material loss caused by him. In this case, only damaged property is implied; lost profits are not taken into account.

The definition of material damage includes an actual decrease in the quantity or deterioration in the quality of the employer’s property.

For example, lack of money, damaged equipment, raw materials, materials, costs of paying a fine in relation to the employer, who was appointed due to the fault of the employee.

What is the employee's responsibility?

The main types of financial liability of employees are presented in the table:	Type of liability	What is
When does it occur	Full	Damage is fully compensated 1. If this is provided for by law for the position held by the employee, for example, director of an enterprise; 4. in case of alcohol, toxic or drug intoxication of an employee at work, resulting in damage; 5. the illegality of the employee’s actions, which led to damage, has been proven; 6. the employee has disclosed a trade secret
Partial	Only part of the loss is reimbursed. The amount of compensation does not exceed the average monthly earnings	In other cases

A contract of full liability - a guarantee or an attempt by the employer to insure its property?

It is common practice for employers to conclude an agreement on full financial responsibility with each person hired. At the same time, he believes that such an action reliably insures him in the event of property damage caused by an employee. But it is not always the case. Such an agreement will not become a “magic wand” for the employer in any case.

For example, the employer tried to obtain compensation for damage caused by the fault of the head of the department in the performance of professional duties. However, the court refused this, despite the existence of an agreement on full financial 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 damages caused?

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

• conducting an inventory of funds;
• creation of a commission to conduct an official investigation and establish the reasons that caused 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 caused in the market valuation on the day of its occurrence. At the same time, the value of lost or damaged property should not be less than that recorded in the accounting records;
• differentiation of the degree of guilt and responsibility between employees if the loss was caused by the fault of several persons.

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

Without recourse to the courts, a shortfall not exceeding the employee's average monthly earnings is withheld. An order for this must be created no later than a month after the incident occurred and losses were calculated. If an employee objects to the employer’s actions, he can go to court.

The parties may agree to pay off the damage in installments. In this case, you should draw up a payment schedule and indicate specific terms. If an employee has undertaken to compensate for the damage caused, but quits without doing so, the employer can go to court. Also, only in court can the issue of collecting damages from an employee in an amount exceeding his average earnings be resolved if he refuses to voluntarily do so.

Reflection of damage on accounts: postings

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

Account correspondence		Contents of a business transaction
Debit	Credit
73/2	94	Attributing the shortage to the culprit
50, 51, 70	73/2	The employee deposited money into the cash register or company account, or the missing amount was withheld from his salary
73/2	98/4	The difference between the market and accounting estimates of the loss, if any, is shown
98/4	91/1	The difference between the market and balance sheet valuation is written off as the culprit pays off the damage. If the loss is compensated in parts, the difference is written off in proportion to the amount of repayment
94	98	A shortage relating to previous periods was discovered in the reporting period and included in deferred income
98	91	Deferred income relates to the reporting period when the loss is repaid by the culprit.

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

The most common mistakes employers make when recovering damages

When trying to obtain compensation for material damage from an employee, an employer often makes the following mistakes:

• an attempt to obtain full compensation for the damage caused. Full compensation for damage is allowed only in cases strictly defined by law (Article 241 of the Labor Code). Also, the manager and chief accountant of the enterprise bears full financial responsibility.;
• concluding an agreement with each employee on full financial liability in the hope of being able to recover the entire loss. Even if such an agreement was concluded, but there were no legal grounds for it (the employee’s position is not on a special list, or his activities are not related to material assets), then it will be declared invalid by the court;
• an attempt to recover from the employee not only the damage caused, but also the lost profit. The employee is obliged to compensate only for direct losses;
• The employer’s mistake is to withhold the amount of the administrative penalty imposed on him due to 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 inspection, an administrative fine was imposed on the store, which the employer paid in the amount of 50,000 rubles. After this, 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 compensate for damages in this amount, and the employer went to court. The court, taking into account all the circumstances, rejected the employer’s claim. In this case, he can receive compensation for the damage caused only partially in an amount not exceeding the average salary of the employee.

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

Question No. 1. Is it possible to pay off material damage in installments?

Yes, the possibility of repaying the damage caused to the employer in parts exists. 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 commitment from the employee to repay the debt in installments and indicate a payment schedule.

On this obligation, the head of the enterprise must put a resolution that he does not object. It is possible to arrange an installment plan with a separate order or order, which will indicate the payment schedule. Question No. 2.

Should an employer be required to withhold damages caused by an employee?

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

Question No. 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 legally defined option of full repayment of the cost of the loss, then the most that the employer can count on is the average salary of the employee. You cannot deduct more than a fifth of your earnings per month. If the employer believes that he has the right to demand repayment of the damage caused in full, but the employee does not want to do this, then such a disagreement must be resolved in court.

Question No. 5. Which 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 higher value is taken as the basis for determining the amount of compensation.

12.07.2016 04:54

In a situation where an employee dealing with material assets (salesperson, cashier, storekeeper) caused material damage to the company, simply put, “stealed,” the natural desire of management is to recover damages from him. But this does not always happen due to non-compliance with the formalities established by law. That is, the employer, of course, can withhold fromemployee's wages the amount of damage. But if the requirements of labor legislation are not met, then the court will side with the employee and return to him not only the amounts withheld by the employer, but also recover moral damages claimed by the employee (Article 237 of the Labor Code of the Russian Federation), interest for delayed wages (Article 236 Labor Code of the Russian Federation), legal expenses (Article 88 of the Code of Civil Procedure of the Russian Federation).

Therefore, compliance with the law when recovering damages is very important. We offer some tips on how to recover damages from an employee so that in the event of a dispute, the court will be on the employer’s side.

Tip 1. Draw up an agreement on full financial responsibility when hiring

In addition to the employment contract with employees servicing material assets, it is necessary to draw up an agreement on full financial responsibility. Without this agreement, it will not be possible to bring the stealing employee to full financial responsibility (see, for example, the Appeal ruling of the Samara Regional Court dated August 13, 2014 in case No. 33-7921/2014).

Sometimes employers go too far and enter into agreements on full financial responsibility with all employees in a row. Please note: only contracts with employees holding positions or performing work specified in Resolution of the Ministry of Labor of Russia dated December 31, 2002 No. 85 will have legal significance. Accordingly, the name of the position or work performed in the employment contract must comply with this Resolution.

The same Resolution provides examples of agreements on full individual and collective liability. At the same time, if several employees work in the same sales area, in the same warehouse, at the same cash register, then it is necessary to conclude an agreement on collective financial responsibility. Concluding an agreement on individual liability in this case would be a mistake.

Can an employee refuse to sign an agreement on full financial liability? Let us recall the explanations of the Plenum of the Supreme Court of the Russian Federation, given in Resolution No. 2 of March 17, 2004. This Resolution states that an employee does not have the right to refuse if the responsibilities for servicing material assets were established when concluding an employment contract.

Also, when hiring an employee, before signing an employment contract, it is necessary to carefully specify in the employee’s job description his job responsibilities related to the maintenance of material assets, that is, what exactly he is obliged to do with goods, money, materials, and other material assets.

Tip 2. Take an inventory and issue a transfer and acceptance certificate when hiring

Is an agreement on full financial liability sufficient to reasonably hold an employee financially liable? Just drawing up this agreement is not enough. It is necessary to formalize the delivery of certain property to the employee (see, for example, the Appeal ruling of the Saratov Regional Court dated October 9, 2014 in case No. 33-774). After all, in paragraph 2 of Art. 243 of the Labor Code of the Russian Federation refers to the shortage of entrusted property.

To determine what kind of property will be given to the employee when financially responsible persons change, it is necessary to conduct an inventory. The need for an inventory is directly provided for by Order of the Ministry of Finance of Russia dated July 29, 1998 No. 34n, Methodological guidelines approved by Order of the Ministry of Finance of the Russian Federation dated June 13, 1995 No. 49. Based on the results of the inventory, the following documents must be drawn up:

Order on the creation of an inventory commission;

An order to conduct an inventory with a note from the employee regarding familiarization (recommended);

Inventory list;

Collation statement.

Property that was reflected in the inventory list and will be transferred from the previous financially responsible person to the subsequent one.

To confirm this, you should issue a transfer and acceptance certificate, in which you should indicate:

Specific property that is transferred to the financially responsible person (in pieces, meters, other units of measurement);

Transfer date;

Signatures of the transferring and receiving person.

Tip 3. Provide storage conditions for property

Art. 239 of the Labor Code of the Russian Federation directly states that it will not be possible to recover damages from an employee if the employer has not fulfilled the obligation “to ensure proper conditions for storing the property entrusted to the employee.” What does it mean? The employer needs to create actual barriers to material assets for unauthorized persons.

For example:

Buying a safe to store cash,

Providing warehouses with locks on doors;

Restricting access to warehouse premises for unauthorized persons;

Organization of security at night in the warehouse area.

In other words, if the warehouse is a “passage yard” for all workers, including those who have nothing to do with it, and the storekeeper tells about this in court along with witnesses, then it will not be possible to recover the shortage from this storekeeper (see Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52).

Tip 4. Record the presence of damage using an inventory

Should any damage be recorded for collection purposes? Art. 238 of the Labor Code of the Russian Federation indicates that the damage must be direct and actual, that is, a real decrease in property or deterioration in the condition of property (and not losses or lost profits). For example, a lack of money in the cashier's register will be a direct actual loss. And if the manager missed a profitable client and “failed” to conclude a contract worth millions - this is lost profit, this damage cannot be recovered.

The shortage of financially responsible persons (that is, those with whom an agreement on full financial responsibility has been concluded) should be recorded through an inventory. Carrying out an inventory is mandatory not only on a planned basis and when changing financially responsible persons, but also when identifying facts of theft, abuse, damage to property, as well as in the event of natural disasters and emergencies (clause 27 of the Order of the Ministry of Finance of Russia dated July 29, 1998 No. 34n) .

It is especially important to carry out an inventory if an employee quits. The courts insist that the lack of inventory does not allow establishing the quantity and value of the goods, as well as at what point the shortage occurred (see, for example, the Appeal ruling of the Lipetsk Regional Court dated February 17, 2014 in case No. 33-415/2014). Other documents drawn up by the employer are not recognized as proper evidence; it is necessary to have inventory records both at the time of hiring and at the time of dismissal of a person (see, for example, the Appeal ruling of the Rostov Regional Court dated April 22, 2013 in case No. 33-4910/2013 ).

The inventory must be drawn up in accordance with the Methodological Recommendations dated June 13, 1995 No. 49. If the employer violated the procedure for conducting the inventory, then the documents compiled as a result of such an inventory cannot serve as reliable evidence (see, for example, the Appeal Rulings of the Supreme Court of the Republic of Mordovia dated February 20. 2014 in case No. 33-332/2014).

Tip 5. Be sure to check after the damage occurred

Such verification is mandatory according to Art. 247 Labor Code of the Russian Federation. To carry out the verification, first of all, you should issue order to create a commission.

This order requires:

Indicate the basis for creating the commission (detection of damage);

Describe what exactly happened;

Specify the terms of the commission’s work;

Indicate the need to provide the results of the commission’s work to the manager.

Why is the inspection carried out? In order to later prove in court that there are grounds for holding financially liable. What exactly will need to be proven- indicates Art. 233 of the Labor Code of the Russian Federation and clause 4 of the Resolution of the Plenum of the Supreme Court of November 16, 2006 No. 52:

The presence of damage (that is, something must be broken, damaged, stolen, etc.);

Commitment by an employee of unlawful actions (or inactions), that is, violating the laws or local regulations of the company;

The employee’s guilt in causing such damage to the employer (intention or negligence);

There is a causal connection between the employee’s actions and the damage incurred by the employer.

The most important thing in the work of the commission is the demand from the employee written explanation(Article 247 of the Labor Code of the Russian Federation). It is better to give the employee a special notice of the need to provide such explanations. The time period for an employee to prepare an explanation under the Labor Code of the Russian Federation is not regulated. Therefore, you can rely on Article 193 of the Labor Code of the Russian Federation, which allows two working days for submitting explanations. If after this period the employee has not provided an explanation, then an act should be drawn up (Article 193 of the Labor Code of the Russian Federation).

Based on the results of the inspection, it is necessary to draw up act of the commission's work. This will be the main document for bringing to responsibility. Resolution of the Plenum of the Supreme Court dated November 16, 2006 No. 52 tells us what to indicate in the commission’s work report, because this will have to be proven in court. Therefore, it is better not to limit yourself to two or three sentences, but to describe the documents studied and the employees’ explanations in detail.

The act is signed by all members of the commission. The employee must be familiarized with the act against signature. If he refuses or evades familiarization, a corresponding act is drawn up.

Tip 6: Only seek out-of-court damages if permitted by law.

If, based on the results of the inspection, the manager decides to recover damages, then it is necessary to double-check again exactly how to do this legally.

Please note: the Labor Code of the Russian Federation does not oblige the employer to recover material damage from the employee. Maybe the employee is already resigning, and management doesn’t want to waste time and effort on investigations...

If the head of the company has decided to hold the employee financially liable and collect damages, then such a decision must be formalized by order. In this order, you should first indicate the decision to hold the worker financially liable, and the next paragraph indicate the decision to recover the material damage caused. Such an order can be made no later than one month from the date the amount of damage caused is established (Article 248 of the Labor Code of the Russian Federation).

The employee must be familiarized with the order against signature. If the employee refuses to familiarize himself with the order of engagement, then an appropriate act should be drawn up.

After this, the employer’s actions may vary depending on the situation:

1. The employee repents and the indemnitor agrees. Great! He can deposit money into the cash register or transfer it to the company account. Sometimes employees turn to the employer with a request to recover damages from wages. In this case, you can discuss the return of the amount in parts, and if the employee quits, it is better to draw up a written obligation to compensate for damages indicating specific payment terms (Part 4 of Article 248 of the Labor Code of the Russian Federation).

2. The employee does not admit his guilt and does not agree to compensate for the damage. But the amount of damage does not exceed his average monthly earnings and the collection period (one month from the date the amount was established) has not expired. Despite the employee’s disagreement, the employer can recover the amount of damage independently (Part 1 of Article 248 of the Labor Code of the Russian Federation). In this case, in the collection order, instruct the chief accountant to withhold the damage from the employee’s salary. In this case, the penalty should not exceed 29% of the employee’s monthly earnings (Article 138 of the Labor Code of the Russian Federation). Therefore, for full recovery (if the damage is equal to average earnings) it will take five months.

Before doing this, double-check whether all the measures indicated above have been taken? After all, an employee can go to court, and then all these activities will be checked by the court. If an agreement on liability was not concluded, inventories were not carried out, damage was not checked, it is hardly worth the risk - the court will side with the employee.

3. The employee does not agree to compensate for damage in the amount of average monthly earnings, and the period for recovery has expired. Or the employee does not agree to compensate for damages in excess of the average monthly salary (regardless of the time frame). In this case, damages can only be recovered in court (Part 2 of Article 248 of the Labor Code of the Russian Federation) within one year from the date of discovery of the damage caused (Article 392 of the Labor Code of the Russian Federation). But you will have to prepare documents for the court, since collecting from an employee without a court decision in such cases is extremely risky. The employee will most likely go to court - and the court will confirm that he is right.

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The material side of the “employee-employer” relationship comes down to the usual exchange: labor and its results for money. This, of course, if we simplify and do not take force majeure situations into account. The latter include cases where an employee did something such that his company suffered material losses.

Employers have the right to recover such damages from unfortunate employees. But the procedure for collection is specified in detail by the legislator in order to prevent unjustified deductions from subordinates. If the prospect of getting involved in such a process looms on your horizon, whether you are an employee or an employer, it is advisable to familiarize yourself with all the regulations in this regard. To do this, we offer you this article to help you.

Regulatory regulation

Elements of responsibility

The obligation of the guilty employee to pay in rubles for his actions (or for inaction) is established by the Labor Code of the Russian Federation (Articles 232, 238 of the Labor Code of the Russian Federation). The same Code also establishes the main elements of such liability (Article 233 of the Labor Code of the Russian Federation).

If at least one of them is missing, it will be illegal to demand the employee to pay for the losses caused. Let's look at these elements one by one:

1. The parties to the conflict must, and not at the time of collection, but at the time the employee committed those actions that caused damage to his employer.
2. Human actions. They must be illegal, that is, contrary to the law. Simply put, the employee ruined something, etc. But doing nothing can also cause harm. In legal terminology, this is called omission.
3. Employee's fault. A person can cause harm through his actions either intentionally (he did something, knowing full well how it would turn out) or carelessly (he didn’t think and didn’t calculate the consequences, although he could have done it).
4. Causality: the employer’s damage must be a direct result of the actions (inaction) of the employee from whom compensation is required.
5. Damage. Those actions mentioned above must entail actual material losses for the enterprise. If an employee “messed up”, but there were no consequences, then his management can simply... In this case there is nothing to collect.

When damage is discovered

If there is still damage, the employer needs to calculate its size. According to the law, only direct damage can be recovered from the guilty employee: the monetary equivalent of the property that was lost or damaged (Article 238 of the Labor Code of the Russian Federation).

If an item has been damaged for which the company is responsible to clients or partners (third parties), its value can also be presented to its employee. For example, a car service worker “broke” a car that belonged not to the workshop, but to its client.

Important: lost profits (those income that could have been received from the lost item or money) cannot be demanded from the employee. An exception is provided only for.

Also, if there is still damage, the employer needs to justify this calculation. This means that you cannot take a certain amount out of thin air and demand that it be paid to you.

For calculations, you should use, necessarily (Article 246 of the Labor Code of the Russian Federation). This is the minimum value. In addition, you can focus on market prices for a similar item that were in effect during the period of its loss or damage. In any case, you must be prepared to document the calculation.

However, full compensation for damage is not always possible. The law provides for two types of employee liability:

1. When does it occur, that is, when the employee is obliged to pay the entire amount for damage (Article 242 of the Labor Code of the Russian Federation). It can only be carried by persons expressly specified in the law. These include:
   • representatives of some professions (cashiers, accountants, etc.). There is a resolution of the Ministry of Labor in which such professions and positions are listed.
   • persons who have lost valuables received under a special document (agreement, order, etc.);
   • employees whose actions to cause harm are recognized as a crime or administrative offense;
   • employees who caused harm during non-working hours or in an “elevated” state (alcohol, drugs, etc.), etc.
2. Limited: you can only charge the culprit; it applies to all other employees by default (Article 241 of the Labor Code of the Russian Federation).

When it cannot be collected

In practice, it happens that damage to an enterprise is caused in such circumstances that it would be unfair to punish an employee for this. Labor legislation has prudently formulated cases when it is impossible to recover damages from an employee in principle (Article 239 of the Labor Code of the Russian Federation). These include:

• force majeure (force majeure): circumstances that a person cannot resist or prevent, for example, an earthquake, war, epidemic.
• cases of normal economic risk: the employee did everything correctly, in accordance with his professional experience, even showed some forethought and tried to prevent disastrous consequences, but the damage still occurred.
• extreme necessity and necessary defense. These concepts relate rather to the field of criminal law.

• The first case: the employee nevertheless caused harm to his enterprise, but did it with the noble goal of saving other people or himself from the danger that threatened them.
• The second case: an employee damaged the property of his organization while defending himself from a criminal. He could protect both himself and someone else. From the standpoint of labor law, he should not have to pay for the damage, but from the standpoint of criminal law, claims may arise against such a hero. It is very easy to exceed the defense limits under Russian law.
• Finally, the most obvious option: management entrusted the employee with the protection and preservation of certain property, but did not organize conditions sufficient for this purpose.

How to recover material damage from an employee

Procedure

So, if your organization has lost money or property due to the fault of your employee, the approximate procedure should be as follows:

1. A memo is submitted addressed to the head of the enterprise. This is usually done by the alleged culprit's immediate superior or another person (when there are no suspects).
2. Based on the note, the director issues an order to conduct an inspection (internal investigation) and creates a commission for this purpose.
3. Check (investigation): carried out, employees are interviewed, various evidence is collected, etc.;
4. If necessary, law enforcement agencies may be involved at this stage. For example, when it is impossible to identify the culprit on your own, there are clear signs that a crime has been committed, etc.
5. After all the circumstances have been clarified and the culprit has been identified, the fine is taken from him. or sign, you will have to draw up a document about this.
6. The inspection (investigation) ends with the issuance of an order. It indicates the culprit, the amount of damage and the circumstances of its infliction.

Be sure to familiarize the guilty employee with this order against signature!

At this stage, the issue of the procedure for collecting damages is resolved:

• if the employee can only bear up to the limit of his monthly earnings, an order is issued to withhold the corresponding amount from his salary. Important: this order must be issued within a month from the day you determined the amount of damage. If you don't meet the deadline, you go to court.
• If the employee is subject to full liability, but refused to pay voluntarily, he should go to court for recovery.
• if you contacted law enforcement agencies and a criminal or administrative case was opened against the culprit, it is advisable to demand compensation for damage in criminal or administrative proceedings, respectively.

To go to court, you must draw up a statement of claim for compensation for damage, attach to it copies of all acts, orders, explanations of the case, employment documents and other documents, pay the state fee and file a lawsuit. The actual collection is carried out after the decision comes into force by the bailiffs.

You can download an example of an order for compensation for material damage.

Order on compensation for material damage by an employee (sample)

If an employee quits

If your employee causes material damage to the company, his obligation to pay for the damage will cease only after payment. Whether he continues to work or not has no bearing on this duty. It is impossible to simply issue a retention order, so in any case you will have to go to court.

The amount of damage is determined by the employer in two ways: in general And special ok. Yes, according to Art. 246 of the Labor Code of the Russian Federation, the amount of compensation must correspond to current losses.

Important! Cash payments are made by the offending employee, regardless of whether he is brought to administrative, disciplinary, or criminal liability for those actions (or lack thereof) that resulted in damage to the employer.

Features of the collection procedure

After the employer has recorded the fact of the damage caused, he can partially or completely refuse financial compensation. This measure is appropriate in two cases: if the losses are insignificant or the guilty employee has a positive reputation in professional circles (the property was “damaged” due to negligence).

Important! The employer's decision to collect compensation in the established amount must be documented (in the form of an order). Once the amount of damage is established, the employer issues an order to withhold funds from the subordinate's salary. This document must be issued no later than 30 days from the date of determination of the fact of damage and its reflection in the inventory act.

The amount that will be collected from the employee should not exceed his monthly salary (set on the basis of the actual salary for 12 months).

Deduction of funds to cover material damage is not carried out from:

• Business travel allowances;
• Payments that cover the material costs of transferring an employee to another location;
• Funds for depreciation of inventory;
• Maternity leave;
• Maternity benefits.

If material damage to the employer was caused by a group of people, then the amount of compensation paid by each of them is determined by the degree of guilt and the type of financial liability (it can be full or limited).

Important! If the employer was unable to voluntarily agree on the amount of payments with the team, the amount of compensation is determined in court.

In order to accurately calculate the amount of compensation required, it is necessary to determine the market price of the damaged property on the day it was discovered. It is noteworthy that this figure should not be lower than that indicated in the financial statements minus the degree of depreciation of material assets.

Determining the amount of compensation for damage to the employer is generally carried out in 2 ways:

• Based on actual losses taking into account the market value of material goods on the current day;
• Based on the financial statements, focusing on the degree of depreciation of the property.

The last calculation option is advisable to use when the market price of a product is lower than its purchase price.

Important! The general procedure for recovery for material damage caused allows the employer to withhold an amount that does not exceed the average monthly salary of the guilty employee. The remainder of the compensation must be covered by the company's funds or insurance premiums (if the damaged property was insured).

The amount of compensation is determined in a special manner in the following situations:

• material damage was caused to the employer due to deliberate damage to property, as a result of theft or shortage;
• the actual amount of damage exceeds the nominal value of the “damaged” goods.

In accordance with the labor legislation of the Russian Federation, the employer can withhold from the employee’s salary no more than 20%, and if the damage was caused as a result of criminal activity - up to 70%.

Redress Mechanisms

An employee may voluntarily compensate the employer for damage caused. In this case, a document (agreement) is drawn up, which strictly regulates the specific terms of payments.

The amount and form of compensation for damage are determined by both parties - it can be money or other property that is equivalent to the lost (damaged).

Compensation can be paid by the employee gradually (an installment agreement is concluded), the guilty person undertakes to fully cover the damage by a certain time.

Important! If the employee does not repay the debt within the established time frame, the employer may sue him for the unpaid funds.

It should be remembered that with a voluntary agreement, the employee can cover compensation, the amount of which does not exceed his average monthly salary. When a large amount is fixed in the agreement, the employee has the right to refuse to pay the remaining part of the debt.

Compensation for damage is carried out not only voluntarily, but also out of court - the employer withholds a set amount from the salary of the offending employee.

Extrajudicial collection of compensation is carried out subject to several important conditions:

• the total amount of damages covered does not exceed the monthly salary of the person at fault;
• no more than 30 days have passed since the damage (loss) of the property;
• the employment relationship between both parties continues throughout the period of payment of compensation.

In court, damages are compensated in the following situations:

• the amount of money required by the employer exceeds the monthly salary of the offending employee;
• More than a month has passed since the discovery of the fact of damage (loss) of property.

When drawing up (submitting) a statement of claim, the victim must prove the fact of damage to property, indicate the amount of compensation and determine the degree of guilt of each employee (if we are talking about collective labor liability).

Rules for filing a claim

The document is drawn up in free form manually or using technical means. The form must indicate:

• Name of the court;
• Address, full name or name (in case the claim is filed on behalf of a legal entity) of the plaintiff, his actual address, signature;
• Full name, address of the defendant;
• Subject of the claim (fact of damage caused, evidence of the defendant’s guilt);
• Amount of compensation required (cost of claim);
• Information about pre-trial attempts to resolve the situation (if any).

In this case, compensation can only be demanded in court. In accordance with Article 392 of the Labor Code of the Russian Federation, the employer has the legal right to go to court within 12 months from the moment of causing material damage. The date of its discovery is the date on which the inventory was taken, or the date when the victim discovered the damage caused.

If the employer and his former employee previously entered into a voluntary agreement on the payment of compensation, but at a certain point the guilty person did not make the next payment, and, moreover, subsequently quit, the date of the first missed payment will be the starting point of the one-year period allotted for filing a claim. .

How to determine the amount of damage caused by a dismissed employee: the amount of payments already made is subtracted from the actual amount of compensation.

Boundary payment rates

The legislation provides for partial or full liability of the employee for damage caused to the employer. The latter is appropriate only when the employment contract contains a clause according to which the employee committed illegal actions that resulted in material damage. According to Art. 243 of the Labor Code of the Russian Federation, these include the following situations:

• knowingly causing harm;
• the presence of a shortage of valuables that were entrusted to the employee in accordance with the agreement;
• criminal actions of an employee (established in court);
• the damage was a consequence of the act of the guilty person while intoxicated;
• cases of disclosure of confidential information relating to the economic activities of the enterprise (including that which is protected at the legislative level);
• losses caused due to an administrative violation (the fact of its existence was recorded by the relevant government authority);
• the damage occurred during non-working hours.

If the court decides that causing damage is actually a criminal act, the guilty person bears not only financial, but also criminal liability for the act.

Many “victims” of negligence or intentional sabotage by employees, without their knowledge, withhold amounts exceeding their monthly income.

Some employers issue an order to withhold funds to pay compensation later than a month from the date of discovery of the fact of damage. In both the first and second situations, payment can only be demanded in court.

Other errors related to material penalties for damage compensation:

• The actual amount of damage caused by the employee is not established;
• Violation of inventory rules;
• There is no written explanation from the employee regarding the situation.

Upon the fact of causing damage, the employer must demand written explanations from the guilty person; if the guilty employee refuses to testify, this must also be documented.

When an employer cannot demand payment of compensation:

• Extreme necessity, defense, force majeure, resulting in damage to property;
• Neglect of the exploitation and storage of material goods by the employer himself;
• Absence of an agreement on the financial responsibility of the offending employee (or drawing up a document without convincing grounds).

If an agreement on full financial liability was not initially drawn up with the employee who deals with valuables, then he will be compensated for the damage caused in the general manner - in an amount not exceeding his monthly salary.

In addition, the employer does not have the legal right to enter into such agreements with persons employed in positions not included in the list of Resolution of the Ministry of Labor No. 85.

According to Article 239 of the Labor Code of the Russian Federation, an employee may refuse compensation for material damage in the case when a specially created commission discovered:

• The existence of a natural economic risk in relation to a specific enterprise;
• Presence of force majeure circumstances;
• The absence of such working conditions that would allow the financially responsible person to safely operate the entrusted values ​​and ensure their safety;
• Signs of self-defense or extreme necessity, resulting in damage to property.

It is noteworthy that in case of intentional harm, shortage, loss of property or theft at the enterprise, special rules for calculating losses are established. For example, if psychotropic or narcotic drugs are lost, the offending employee is obliged to compensate for direct losses 100 times their original value.

Important! Full financial liability of an employee for causing damage can be established exclusively in court (Article 243 of the Labor Code of the Russian Federation).

So, as a result of damage caused by a guilty employee, the employer may demand payment of compensation in the established amount. Repayment of payments is carried out voluntarily (by agreement), extrajudicial, judicial procedure. The total amount that the employee who caused the damage undertakes to repay must not exceed the amount of his monthly income (can be paid, by agreement with the employer, in installments).

If there are controversial issues related to material damage caused, a special commission may be invited to the enterprise (conducts an investigation, establishes the amount of compensation).