Collective liability claim in court

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Is it possible to recover damages from full size without a liability agreement. Which regulations regulate the holding of an employee to financial liability. When can the court reduce the amount of damage?

To recover from the employee the damage caused - not an easy task. Since the worker is economically more weak side labor relations, Labor Code established quite significant restrictions on the recovery by the employer of damages caused to him.

In this regard, the employer must take into account not only the procedure for collecting such damage from an employee, but also the very procedure for establishing financial liability. Most difficult questions law enforcement summarized by the Plenum Supreme Court RF in .

What is meant by financial responsibility?

It should also be borne in mind that the head of the organization bears full financial responsibility in accordance with the Labor Code of the Russian Federation, regardless of the conclusion with him special agreement or an indication of this in the employment contract. At the same time, his deputies and Chief Accountant may bear full financial responsibility only if it is established by the employment contracts concluded with them (,).

The most common case of establishing full financial liability is the conclusion of an appropriate agreement with the employee.

It should be remembered that an agreement on full financial liability can only be concluded with employees whose positions are indicated in the approved document. If an agreement on full financial liability is concluded with an employee who holds a position or performs work that is not on this list, then it does not entail the obligation to compensate for the damage caused in full.

The financially responsible employee must prove the absence of his guilt

It should be borne in mind that when considering such disputes with employees, the courts quite carefully analyze all the details of establishing full financial liability. Failure to comply with the organization's rules for document preparation may lead to refusal to satisfy the employer's requirements.

Labor Code of the Russian Federation:

Article 277 of the Labor Code of the Russian Federation. Financial responsibility of the head of the organization

The head of the organization bears full financial responsibility for direct actual damage caused to the organization.

In cases provided for by federal laws, the head of the organization compensates the organization for losses caused by his guilty actions. In this case, the calculation of losses is carried out in accordance with the norms provided for by civil law.

Return to contents: Labor Code of the Russian Federation in the current (latest) edition

Comments on Article 277 of the Labor Code of the Russian Federation, judicial practice of application

Explanations of the Plenum of the Supreme Court of the Russian Federation

In accordance with part one of Article 277 of the Labor Code of the Russian Federation, the head of the organization (including the former) bears full financial responsibility for direct actual damage caused to the organization. Direct actual damage, according to part two of Article 238 of the Labor Code of the Russian Federation, is understood as a real decrease in the employer’s cash property or deterioration in condition said property(including 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 make costs or excessive payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties.

Bringing the head of an organization to financial liability in the amount of direct actual damage caused to the organization is carried out in accordance with the provisions of Section XI "Financial liability of the parties to an employment contract" of the Labor Code of the Russian Federation (Chapter 37 " General provisions" and 39 "Financial responsibility of the employee").

The head of the organization (including the former), on the basis of part two of Article 277 of the Labor Code of the Russian Federation, compensates the organization for losses caused by his guilty actions only in cases provided for by federal laws (for example, Article 53.1 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation), Article 25 of the Federal Law of November 14, 2002 N 161-FZ "On State and Municipal unitary enterprises", Article 71 of the Federal Law of December 26, 1995 N 208-FZ "On joint stock companies", Article 44 of the Federal Law of February 8, 1998 N 14-FZ "On Companies with limited liability", etc.). Calculation of losses is carried out in accordance with the standards civil legislation, according to which losses mean real damage, as well as lost income (lost profits) () (see paragraphs 5, 6 Resolutions of the Plenum of the Supreme Court of the Russian Federation dated June 2, 2015 N 21"On some issues that the courts have encountered when applying the legislation regulating the work of the head of the organization and members of the collegial executive body organization")

Damages from the head of the organization are recovered in full even if there is no provision in the employment contract for full financial liability.

Considering that the full financial liability of the head of the organization for damage caused to the organization comes by force of law (Article 277 of the Labor Code of the Russian Federation), the employer has the right to demand compensation for damage in full, regardless of whether the employment contract with this person contains a condition on full financial liability . In this case, the issue of the amount of compensation for damage (direct actual damage, losses) is resolved on the basis of the federal law in accordance with which the manager bears financial responsibility (for example, on the basis of Article 277 of the Labor Code of the Russian Federation or paragraph 2 of Article 25 of the Federal Law of November 14, 2002 . N 161-FZ "On state and municipal unitary enterprises") (clause 9 Resolutions of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 N 52"On the application by courts of legislation regulating the financial liability of employees for damage caused to the employer")

Recovering damages from an employee is not an easy task. Since the employee is the economically weaker party in the labor relationship, the Labor Code has established quite significant restrictions on the employer’s recovery of damages caused to him.

In this regard, the employer must take into account not only the procedure for collecting such damage from an employee, but also the very procedure for establishing financial liability. The most complex issues of law enforcement were summarized by the Plenum of the Supreme Court of the Russian Federation in Resolution No. 52 dated November 16, 2006.

What is meant by financial responsibility?

The financial liability of an employee means the latter’s obligation to compensate established by law the order and amount of direct actual damage caused through his fault to the employer with whom he has an employment relationship. The provisions on financial liability are enshrined in Chapter. 39 Labor Code of the Russian Federation. Legal basis such liability became the provisions of Part 2 of Art. 8 of the Constitution of the Russian Federation, establishing the protection of all forms of property, and the provisions of Art. 21 of the Labor Code of the Russian Federation, which provides for the employee’s obligation to take care of the employer’s property. Thus, the first thing that the court establishes is the existence of an employment dispute between the parties, as well as the type of financial responsibility of the employee.

The legislation provides the following types material liability: limited and full. In this case, full financial responsibility can be both individual and collective.

Limited financial liability (Article 241 of the Labor Code of the Russian Federation) arises in the event of direct actual damage being caused to the employer, regardless of whether an agreement on financial liability has been concluded with the employee or not. The amount of liability is limited to the employee's average monthly earnings. It should be noted that every employee with whom an employment contract is concluded has limited financial liability.

In contrast to limited liability, full financial liability (Article 242 of the Labor Code of the Russian Federation) occurs in strictly defined cases by law and involves full compensation for damage caused to the employer.

Cases of full financial liability are established by Art. 243 Labor Code of the Russian Federation. These include, in particular:

• shortage of valuables entrusted to the employee on the basis of a special written agreement or received by him under a one-time document;
• intentional causing of damage;
• causing damage while under the influence of alcohol, drugs or other toxic substances;
• causing damage as a result criminal acts employee established by a court verdict;
• causing damage as a result administrative offense, if established by the relevant government agency;
• disclosure of information constituting a secret protected by law (state, official, commercial or other), in cases provided for by federal laws.

They do not bear full financial responsibility minor workers(under the age of 18), except in cases where the damage to the employer was caused by them intentionally and/or under the influence of alcohol, drugs or toxic substances, as well as as a result of a crime or administrative offense(Part 3 of Article 242, Clauses 3–5 of Article 243 of the Labor Code of the Russian Federation).

It should also be borne in mind that the head of the organization bears full financial responsibility in accordance with Art. 277 of the Labor Code of the Russian Federation, regardless of the conclusion of a special agreement with him or an indication of this in the employment contract. At the same time, his deputies and the chief accountant can bear full financial liability only if it is established by employment contracts concluded with them (Part 2 of Article 243 of the Labor Code of the Russian Federation, Clause 10 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 16, 2006 No. 52 ).

The most common case of establishing full financial liability is the conclusion of an appropriate agreement with the employee.

It should be remembered that an agreement on full financial liability can only be concluded with employees whose positions are indicated in the list, approved by resolution Ministry of Labor of Russia dated December 31, 2002 No. 85. If an agreement on full financial liability is concluded with an employee who holds a position or performs work that is not on this list, then it does not entail the obligation to compensate for the damage caused in full.

The financially responsible employee must prove the absence of his guilt

According to Art. 233 of the Labor Code of the Russian Federation, the financial liability of a party to an employment contract arises for damage caused as a result of its culpable unlawful behavior (actions or inaction). Moreover, if with an employee on legally If an agreement on full financial liability is concluded, the employer does not have to prove his guilt. On the contrary, the employee must prove that the damage caused was not his fault (paragraph 2, paragraph 4, Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 16, 2006 No. 52).

It should be borne in mind that when considering such disputes with employees, the courts quite carefully analyze all the details of establishing full financial liability. Failure to comply with the organization's rules for document preparation may lead to refusal to satisfy the employer's requirements.

In this regard, the employer must pay attention to compliance not only legislative norms, but also those provisions that apply in the organization. Compliance of documents on bringing to financial liability with the rules of document flow adopted in the organization will play into the hands of the employer in court.

An employee is exempt from liability if he could not control the actions of his subordinates

When assigning full individual financial responsibility to an employee, one should take into account not only the Labor Code, but also other regulations governing financial responsibility. For example, there is an order of the USSR Ministry of Trade dated August 19, 1982 No. 162. This document is still in force, and failure to comply with its provisions may result in refusal to satisfy the employer’s requirements.

Thus, despite the fact that the order of application of this document V currently is not fixed anywhere, the courts apply some of its provisions that do not contradict the Labor Code.

The employer must create conditions for the safety of the property entrusted to the employee

Legislation imposes on the employer the obligation to create conditions that make it possible to preserve the property entrusted to employees (Article 239 of the Labor Code of the Russian Federation, paragraph 5 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 16, 2006 No. 52). If the employer cannot prove that such conditions were provided, the court may refuse to satisfy the claim.

The employer must provide the court with evidence confirming the amount of damage caused, as well as the receipt by the employee of material assets. The absence of such evidence will be regarded as an argument in favor of the employee.

The examples presented lead to a clear conclusion: the employer should pay increased attention to creating conditions for preserving the property entrusted to employees, as well as documenting the process of employees receiving material assets.

A fine imposed on an organization is not a basis for full financial liability.

Quite often in practice there are situations when, due to the fault of an employee, an administrative fine is imposed on the organization. The question arises whether this can be regarded as causing direct actual damage to the employer and demand recovery of this amount from the guilty employee. As practice shows, such a situation cannot be regarded as a basis for holding an employee to full financial liability, even if a corresponding agreement has been concluded with him.

cannot be recovered from the employee. Since the defendant partially admitted her guilt, the court imposed financial liability on her in the amount of her average monthly earnings. (Based on materials of judicial practice in civil cases of the Supreme Court of the Republic of Karelia for the first half of 2009).

Art. 241, 242, 243 of the Labor Code of the Russian Federation, the employee is liable for damage caused within the limits of his average monthly earnings, unless otherwise provided by the Labor Code of the Russian Federation or other federal laws. The employee’s full financial liability consists of his obligation to compensate the direct actual damage caused to the employer in full. An employee may be brought to full financial liability if a decision was made against him to impose an administrative penalty (clause 1, part 1, article 29.9 of the Code of Administrative Offenses of the Russian Federation). If the employer, and not the employee, was held administratively liable, then the full amount of the fine cannot be recovered from the employee. Since the defendant partially admitted her guilt, the court imposed financial liability on her in the amount of her average monthly earnings. (Based on materials of judicial practice in civil cases of the Supreme Court of the Republic of Karelia for the first half of 2009).

At the same time, it should be noted that Rostrud at one time indicated: a fine imposed on an organization is direct actual damage. At the same time, the department did not specify what type of liability the employee should be held to (see).

A claim against an employee can be filed within a year.

At the same time, it should be noted that Rostrud at one time indicated: a fine imposed on an organization is direct actual damage. At the same time, the department did not specify what type of liability the employee should be held to (see letter of Rostrud dated October 19, 2006 No. 1746-6-1).

The employer must prove compliance with the procedure for holding the employee financially liable

When filing a claim in court, the employer must follow the procedure for identifying the damage caused to him and proving its size and cause (Article 247 of the Labor Code of the Russian Federation). Before making a decision on compensation for damage by specific employees, the employer is obliged to conduct an inspection to establish the amount of damage caused and the reasons for its occurrence. To conduct such an inspection, the employer has the right to create a commission with the participation of relevant specialists. The procedure for conducting an inventory is determined by Order of the Ministry of Finance of Russia dated June 13, 1995 No. 49, which approved the Methodological Guidelines for the inventory of property and financial obligations. Requiring a written explanation from the employee to establish the causes of damage is also mandatory (Part 2 of Article 247 of the Labor Code of the Russian Federation). If the employee refuses or evades explanation, a report must be drawn up. If the procedure for establishing the amount of damage caused, as well as familiarizing the employee with the inspection materials, is not followed, the employee’s claims may be refused.

We also note that, by virtue of clause 27 of the Regulations on maintaining accounting and financial reporting in the Russian Federation (approved by order of the Ministry of Finance of Russia dated July 29, 1998 No. 34n), an inventory (and, consequently, establishing the amount of damage caused) is mandatory when facts of theft are identified , abuse or damage to property.

The court has the right to reduce the amount of damage recovered from the employee, regardless of his guilt

Considering the employee as obviously the economically weaker party to the dispute, the court in a number of cases may decide to reduce the amount of the penalty (Article 250 of the Labor Code of the Russian Federation, paragraph 16 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 16, 2006 No. 52). As a rule, the employee’s financial and marital status and whether he or she has debts and other obligations are taken into account.

Thus, bringing an employee to financial liability is possible only if several conditions are simultaneously met:

• labor relations have been formalized between the employee and the employer;
• the employer suffered direct actual damage (lost profits do not apply to it);
• the employee is caught in illegal behavior;
• a causal connection between the employee’s unlawful behavior and the occurrence of damage has been proven;
• the employee’s guilt in causing the damage or the legality and correct procedure for concluding an agreement with him on full financial liability has been proven (in this case, the obligation to prove the absence of guilt falls on the employee).

"Personnel department and enterprise personnel management", 2013, N 11

COLLECTIVE MATERIAL RESPONSIBILITY: "WEAK" POINTS

One of the most complex institutions labor law is the collective financial responsibility of workers to the employer. The path of an employer who wants to bring to collective financial liability own employees, tortuous and thorny, and this is not a metaphor, but the reality of both economic and judicial practice. This article is devoted to the failures of employers in applying collective liability, which are reflected in judicial practice, and their analysis.

Features of collective liability

To begin with, let us briefly consider the features of collective liability (CMR), which distinguish it from individual liability. They are the ones that give rise to difficulties and errors in the use of CMO.

First characteristic KMO is its collectivity. In other words, workers have general access to commodity material assets(inventory), and it is not possible to limit the access of each of them to inventory in business processes. Employees serve these values ​​together (Part 1 of Article 245 of the Labor Code of the Russian Federation).

Second essential feature- plurality of persons on the part of employees in the agreement on full KMO (Part 2 of Article 245 of the Labor Code of the Russian Federation). There is only one contract, but its parties are all or part of the team’s employees. All of them must participate in its signing.

The third feature of KMO is special role the degree of guilt of each member of the team, the procedure for determining and proving it (Part 4 of Article 245 of the Labor Code of the Russian Federation).

The fourth is related to proving the amount of damage caused to the employer: it is necessary to take into account the salary of each team member, the degree of his guilt, the time he worked in the team from the day of the last inventory to the day the damage was discovered (paragraph 2 of paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 N 52 “On the application by courts of legislation regulating the financial liability of employees for damage caused to the employer”, hereinafter referred to as Resolution No. 52).

And the fifth feature is the possibility of reducing the penalty from a specific member of the team depending on many factors (paragraphs 3 - 5, paragraph 16 of Resolution No. 52).

Mistakes of employers in attracting workers to CME

To analyze the mistakes and failures of employers in litigation, first, let’s figure out what circumstances are important when resolving the issue of the legality of involving an employee in KMO.

We will call the first category of evidence “general”. These circumstances must be proven both in the case of individual and in the case of collective liability (clause 4 of Resolution No. 52).

These include:

Absence of circumstances excluding the employee’s financial liability;

Compliance with the rules for concluding an agreement on full financial liability;

The presence of direct actual damage and its size;

The employee’s fault for causing the damage;

Causal relationship between the employee’s behavior and the resulting damage.

These include:

Compliance with the rules for establishing collective financial responsibility;

The composition of the members of the collective against whom the claim is brought (is it brought against all members);

The individual responsibility of each team member, taking into account his guilt, wages, and time spent working in the team.

Conclusion of an agreement on full financial liability

Sometimes an employer, instead of an agreement on full collective financial responsibility, enters into agreements with several employees on individual financial responsibility. At the same time, access to inventory items is carried out by employees collectively and it is impossible to differentiate it.

Arbitrage practice. This situation is described in Appeal ruling Investigative Committee for Civil Cases of the Orenburg Regional Court dated January 10, 2013 in case No. 33-83/2013. Two salespeople worked in the store in shifts, and at the end of the shifts inventory of goods and materials was not carried out; accordingly, sellers accessed inventory items jointly and it was necessary to conclude an agreement with them not on individual, but on collective material liability. In this case, the requirement of Part 1 of Art. 245 Labor Code of the Russian Federation. Because of this, the employer lost the case.

A similar case is set out in the Appeal Ruling of the Investigative Committee for Civil Cases of the Irkutsk Regional Court dated May 11, 2012 in case No. 33-3962/12.

Sometimes, when hiring an employee to join the team, they forget to sign a KMO agreement with him.

Arbitrage practice. The appeal ruling of the Supreme Court of the Republic of Karelia dated September 18, 2012 in case No. 33-2788/2012 states that the employee was hired twice by the same organization. The first time they signed an agreement with her about the KMO, but the second time they forgot about it. Accordingly, this served as one of the main arguments for refusing the employer’s claim for compensation for damage caused by the employee.

There are also cases when an agreement is signed only with the team leader, and the rest of the employees are only familiar with it.

Arbitrage practice. The appeal ruling of the Investigative Committee for Civil Cases of the Yaroslavl Regional Court in case No. 33-5164/2012 describes exactly this case: the agreement on KMO was signed by the head of the team, the signatures of the other members of the team are absent in the agreement. And they are present only in the sheet of familiarization with the contract. And the court did not consider this circumstance an appropriate way to conclude an agreement on KMO. The damage was not recovered even from that employee - the team leader who signed the contract, and not the acquaintance sheet. There is no plurality of persons on the part of employees in this case; Part 2 of Art. 245 Labor Code of the Russian Federation.

Failure to provide adequate conditions

for accounting and safety of inventory items

In some cases (which the employer “forgets”), the employee may be completely released from financial liability or the amount of compensation may be reduced. In particular, if the employer has not provided proper conditions for working with inventory materials (Article 239 of the Labor Code of the Russian Federation).

Arbitrage practice. The appeal ruling of the Moscow City Court dated March 18, 2013 in case No. 11-5867 stated that thefts from the store occurred regularly, the employer was aware of this, but he did not take specific measures to strengthen the security of the store. The number of staff and store volumes also objectively did not allow employees to fully exercise control over inventory items. Based on this, the court reduced the amount of damage recovered from employees by applying Art. 250 Labor Code of the Russian Federation, clause 16 of Resolution No. 52.

Arbitrage practice. In the Determination of the Investigative Committee for civil cases of the Rostov Regional Court dated May 31, 2012 in case No. 33-6044/2012, much attention is paid to the following circumstances: the employer did not create appropriate conditions for employees to ensure that the movement of inventory items was recorded; the goods were not checked for weight and volume upon receipt. Accounting was carried out with significant violations, which was established by the accounting examination of the case. Under such circumstances, the employer was unable to recover the damage that either was or was not caused to him.

Failure to comply with the procedure for determining material damage,

incorrect determination of its size

Courts pay great attention to the procedure for conducting inventory, based on the results of which workers are held collectively liable. The procedure for conducting an inventory is regulated by the Methodological Guidelines for the Inventory of Property and Financial Liabilities, approved by Order of the Ministry of Finance of Russia dated June 13, 1995 N 49 (hereinafter referred to as the Guidelines).

Arbitrage practice. The Decision of the Moscow Regional Court dated May 24, 2011 in case No. 33-11842 examined violations of the inventory procedure, due to which it was impossible to determine the amount of damage caused and, accordingly, it became impossible to recover it from employees.

Arbitrage practice. A similar position is set out in the Decision of the Moscow Regional Court dated November 30, 2010 in case No. 33-22915/2010. The court drew attention to the violation of the inventory procedure: the financially responsible persons did not participate in it and were not familiar with its results. Violated by the employer and Art. 247 of the Labor Code of the Russian Federation: evidence of demanding explanations from employees was not presented.

It should be noted that even if the employee gives voluntary consent to compensate for the damage charged to him and partially compensates for the damage from his salary, this is not a reason to violate the procedure for identifying damage.

Arbitrage practice. A similar position is set out in the Appeal Ruling of the Investigative Committee for Civil Cases of the Vologda Regional Court dated September 12, 2012 in case No. 33-3764/2012. The court drew attention to the violation of the Methodological Instructions and Art. 247 of the Labor Code of the Russian Federation, concluding that “only if the above procedure is strictly observed, the employer has the right to recover damages from the employee.”

Arbitrage practice. The ruling of the Moscow Regional Court dated September 21, 2010 in case No. 33-18292 illustrates an interesting situation when, when establishing the amount of damage, only the shortage of inventory items was taken into account, but their excess was not taken into account. Accordingly, the plaintiff employer incorrectly calculated the amount of damage, violating Art. 238 of the Labor Code of the Russian Federation: it is necessary to take into account actual material damage. And the actual damage is the shortage minus the surplus of goods and materials. Therefore, the court refused the employer.

Incorrect determination of the degree of individual responsibility

team members

When determining the degree of guilt of each employee, the employer does not always take into account the circumstances that the courts subsequently pay attention to.

Arbitrage practice. In the Determination of the Investigative Committee for Civil Cases of Primorsky regional court dated June 27, 2012 in case No. 33-5651 we're talking about about two sellers who are being sued for damages. They worked as part of a team of three people, but the claim was brought against only two. The third salesperson quit earlier, and no inventory was taken after her dismissal. The damage arose, among other things, due to the concealment of material shortages responsible persons during a previous inventory count, in which a third employee who had previously resigned participated. Based on these facts, the court reduced the amount of damages recovered for the two defendants to 40% each, referring to paragraph 14 of Resolution No. 52 and Art. 250 Labor Code of the Russian Federation.

Note also that in the above judicial act The court also points out that it is impossible to recover damages from team members jointly, since the responsibility of team members is not joint and several, but shared, that is, the specific share of each team member must be determined. Oddly enough, such a mistake is made not only by employers, but also by the courts themselves. The higher courts are correcting this error.

Arbitrage practice. The Presidium of the Moscow City Court, by its Resolution dated 09/07/2012 in case No. 44g-126/12, overturned the decisions of previous instances that collected the amount of damages jointly and severally from the team in favor of the plaintiff. And he emphasized that it is impossible to apply such an institution civil law, How joint responsibility, to relations in the field of labor law, stating non-compliance with Part 4 of Art. 245 of the Labor Code of the Russian Federation, clause 14 of Resolution No. 52.

The courts also actively use the possibility of reducing the amount of liability of a team member depending on his life and financial circumstances, time of work in the team, referring to Art. 250 of the Labor Code of the Russian Federation and clause 16 of Resolution No. 52, containing an open list of such circumstances. In particular, it states: "... assessing financial situation employee, it should be taken into account property status(amount of earnings, other basic and additional income), his marital status (number of family members, presence of dependents, deductions for executive documents) etc." This is confirmed by the following examples of judicial practice.

Arbitrage practice. In the appeal ruling of the Moscow City Court dated July 10, 2012 in case No. 11-19325 of one of the workers, the amount of damages recovered was reduced due to the fact that she was a student, lost her breadwinner, and worked in a team for less than a month before the date of the inventory and identification of the shortage.

In the Determination of the Moscow City Court dated December 24, 2010 in case No. 33-38370, the amount of damage due to two members of the team was reduced by more than half, since one was a pensioner suffering from a number of chronic diseases, and the other was pregnant and also had limited funds.

In the appeal ruling of the Investigative Committee for civil cases of the Belgorod Regional Court dated October 2, 2012 in case No. 33-2865 of one of the workers, the amount of damage was reduced due to the presence of a young child and small income.

Unfortunately for the employer, the same paragraph 16 of Resolution No. 52 notes that a reduction in the amount of the penalty from one or more members of the team (team) cannot serve as a basis for a corresponding increase in the amount of the penalty from other members of the team (team). The only plus: this paragraph states that the court does not have the right to completely release the employee from financial liability.

Thus, even if the employer has collected all the necessary evidence to hold employees financially liable, among them there may be pregnant women, pensioners, people with many children, alimony payers, etc. And this will be the basis for reducing the amount of damage collected.

What to do to prevent failures in court cases with financially responsible team members? Let's consider this issue in more detail.

Firstly, it is necessary to take measures from the very beginning, even at the stage of concluding an agreement on the financial liability of employees. It is necessary to correctly determine the type of financial liability depending on how many employees and how they access inventory items. If there are signs specified in Part 1 of Art. 245 of the Labor Code of the Russian Federation, it is necessary to establish collective rather than individual financial liability.

Secondly, the KMO agreement must be signed with all team members. Please note: read below personal signature with the text of the contract does not mean its signing by the employee. In this case, the agreement will not be valid.

Thirdly, the employer should properly ensure the possibility of safety and inventory accounting. If this does not happen, these omissions will serve as the basis for either refusing the claim or reducing damages. It is objectively difficult, for example, to expect two or three employees who are in a large trading floor that they will be able to simultaneously sell goods and monitor their safety with a significant flow of customers.

Fourthly, it is necessary to carefully observe the procedure for conducting inventories and the norms of Art. 247 Labor Code of the Russian Federation: strictly follow Methodical instructions, request explanations, record a refusal to give explanations, etc. It is these actions that make it possible to collect the bulk of evidence that is decisive for establishing the fact and extent of damage.

Fifthly, you need to pay attention to the distribution of damage between employees, take into account the team members who left by the time the inventory was taken, the working hours, the salary of each employee, the conscientiousness of their performance of their duties, the availability mitigating circumstances. And, of course, there is no point in demanding joint and several compensation for damages from workers.

Opinion. Irina Kuroles, lawyer, expert at the magazine "Human Resources and Enterprise Personnel Management"

Full brigade financial responsibility.

It is rare that an employer will be able to understand the nuances of the legislation governing the application of financial liability to employees of organizations. Considering that the issues of concluding and executing agreements on full collective (team) financial liability are very common due to the development market economy, especially in trade organizations, some points should still be given attention.

So, in modern organizations trade operating in the format of supermarkets, hypermarkets, etc., sometimes there is a division of “territories” for customer service: sales floor, prepared food departments, industrial premises, utility rooms, etc. The legislator has provided for an alternative to collective liability in this regard - brigade liability, but, unfortunately, did not properly disclose this concept.

IN Soviet time Order of the Ministry of Trade of the USSR of August 19, 1982 N 169 was in force “On approval of the Instructions on the procedure for applying in state trade the legislation regulating the financial liability of workers and employees for damage caused to an enterprise, institution, organization” (hereinafter referred to as the Instructions). It has not been canceled, so it seems possible to use it in on a limited basis, if its provisions do not contradict current legislation.

In accordance with clause 2.6 of the Instructions, the financial responsibility of the team for valuables located on the sales floor (in production) and in the utility room can be established if:

The utility room is used by only one team, all its members have Free access to material assets located both on the sales floor and in the utility room, and participate in all trade, warehouse and production operations;

All commodity transactions production, auxiliary warehouse, commodity-money transactions of the trading floor constitute a single process of the team’s work and are controlled by all its members.

Financial liability separately for valuables located on the sales floor and in the utility room (warehouse) is applied at enterprises that have common utility rooms for supplying goods to several teams working in separate departments or sections. In these cases, two or more teams are created, each of which reports independently for the valuables located on the sales floor, or for the valuables stored in the utility room/warehouse (clause 2.8 of the Instructions).

In large department stores and specialized stores that have separate warehouses, team financial responsibility can be organized separately in departments (sections) and warehouses. In stores where the sales floor is located in premises isolated from each other, brigade liability is established separately for the valuables located in each of these premises (clause 2.9 of the Instructions).

Thus, we see that the possibility of concluding agreements on full brigade financial responsibility of individual brigades exists. The employer remains to distinguish between the concepts of “team” and “collective” financial liability based on the characteristics of the trading activity.

In other words, if there are signs of the presence of separate teams, for example:

Division of divisions: sales area, production;

Distribution of employees among departments;

Delineation of property entrusted to employees;

Separateness of premises

The risk of incorrectly concluding an agreement on full financial liability is that if workers of a certain team are held liable for a shortage of valuables beyond the control of this team, these workers may go to court in connection with a violation of their rights, expressed in the establishment of full material liability. responsibility for property that was not entrusted to them and control over which, by virtue of limited access they could not implement. For example, a meat production cook cannot be held responsible for a shortage of cakes on the sales floor, and a salesperson at a display cannot be held responsible for a shortage of products used in production.

As we can see, the process of bringing workers to collective financial responsibility is very labor-intensive. What matters here are the nuances of personnel document flow, the quality of the accounting department’s work when conducting inventories, and the realities of maintaining economic activity, and circumstances completely beyond the control of the employer - the employee may be a student, a pensioner, or the mother of young children.

Judicial practice does not make life easier for the employer; accordingly, in order to successfully attract employees to CMO, all the listed nuances must be taken into account.