This scientific article examines the features of the initiation and preparation of cases for the recovery of material damage caused to the employer by the employee. A study of modern legislation on the recovery of material damage from an employee was carried out, the corresponding conclusions and their generalization were made.
Instructions
Step 1
In this article, we will consider the specifics of initiating and preparing cases for the recovery of material damage caused to the employer by the employee.
Today, in the conditions of the transition to a market economy, the life of Russia has undergone profound socio-economic transformations, and the newly formed democratic institutions could not fail to serve as changes in the law of the Russian Federation, both material and procedural. These transformations are primarily focused on addressing the political and economic needs of society. Social issues were not ignored either. In the existing market conditions, conflicts often arise between employers and employees. These are: evasion of payment of wages, illegal dismissal, violation of the procedure for concluding an employment contract, etc.
The relevance of the topic under study is certainly quite acute today. This is due to the current state of the legislative regulation of labor legal relations between the employee and the employer and the practice of its application, since it does not fully meet the requirements for the protection of participants in legal relations of an employment nature. This situation is evidenced by discussions at various conferences, round tables, parliamentary hearings and, of course, judicial practice.
Step 2
So, a special place among labor disputes is occupied by cases related to compensation by an employee of an employer for material damage. This is due to their specificity. The correct resolution of such disputes very much depends on taking into account the peculiarities inherent in the consideration of cases of this category. Such features are contained in the norms of labor, civil and procedural legislation1.
A feature of cases on the material liability of an employee to an employer is that they are considered directly in court, while a significant part of other labor disputes can be considered in a labor dispute commission.
Moving on to a more detailed examination of the designated problems, it should be noted that the issue of jurisdiction is one of the main (at the initial stage) issue of legal proceedings. Determining the jurisdiction of a case on the material responsibility of an employee presupposes a solution to the question of in which court it will be considered. If we turn to the generic jurisdiction, then this category of cases is considered by a magistrate. Territorial jurisdiction, according to Art. 28 of the Code of Civil Procedure of the Russian Federation, is determined by the place of residence of the defendant2. The employer must file a claim with precisely the magistrate who serves the site where the defendant resides permanently, or predominantly.
In addition, when going to court, it is important to consider the following.
In the presence of certain conditions, an application for compensation for material damage by an employee cannot be the subject of legal proceedings. So, the terms of Article 248 of the Labor Code of the Russian Federation provide that compensation for damage in an amount that does not exceed the average monthly earnings must be carried out with deduction from wages. The order is announced to the employee by the employer no later than one month after the final determination of the damage caused by the employee. It follows from this that in the presence of these two conditions, the employer does not have the right to go to court with a claim3.
Thus, the employer's claims against the employee for compensation for material damage are considered by the court if: 1) the employer has missed the statutory deadline for announcing the order, as indicated above; 2) the employee does not agree to voluntarily compensate for damage that exceeds his monthly earnings; 3) the employee expressed written consent to compensation for material damage in part or in full within certain (specified by him) terms and then refused these obligations in connection with his dismissal, that is, in this case, there is a basis for the collection of outstanding debt in court … Article 392 of the Labor Code of the Russian Federation establishes a period of one year for going to court on the issue of compensation for actual (material) damage caused by an employee4. When checking compliance with the deadlines established by law, it is necessary to take into account that the beginning of the course of the period is determined by the day following the day when the fact of damage has become known. If, in the event of missing the established time limit, the defendant initiates a dispute in order to apply the statute of limitations, the employer has the right to apply for their restoration. If the reasons for missing the deadline are recognized by the judge as valid, it will be reinstated. For example, the need to carry out inspections in connection with the damage caused by the employee, i.e. when it is necessary to conduct an investigation, audit, etc., can be considered valid.
Next, we will dwell on the content of the statement of claim, to which certain requirements are imposed. Its contents indicate: the amount of material damage; circumstances that served as an unlawful action (inaction) on the part of the employee, the causal relationship between his actions and the resulting consequences in the form of material damage and the latter's fault; in addition, there must be an indication of specific evidence. The application must also indicate the type of material liability (full or limited), the amount of recovery and evidence on which the conclusion about the type and amount of the amount recovered is based. The employer must provide a calculation of the amount to be collected. Additionally, the application contains contact numbers, e-mail addresses and other information that are important for the consideration of the case5. In the event of a claim against several defendants, the application must indicate the calculation of the damage caused by each. The share of damage to be compensated by each of the respondents is also indicated. Since the statement sets out the arguments of guilt, they must be confirmed by job descriptions, explanations of the employee, reports, accounting data, an audit report, an order to prosecute, etc. In order to confirm the size of the employee's average earnings, a certificate is attached to the statement about his wages. At the request of the interested party, the judge may request documents in the form of certificates of wages of the defendant's family members or information about property objects. According to article 98 of the Code of Civil Procedure of the Russian Federation, the amount of the state duty paid by the employer when filing a statement of claim with the court, if satisfied, is recovered from the employee6. If the employer, when filing a claim, was exempted from paying the state duty, then it is collected as state revenue from the defendant. An example is judicial practice, when a claim is filed in a criminal case and, by a court verdict, this requirement is satisfied.
Next, let us turn to the typical mistakes that have developed on the basis of judicial practice and, when committed, it is not possible to recover material damage from the employee7.
The first mistake: the absence of an agreement with a materially responsible person on full financial responsibility. So, a prerequisite for recovering material damage from an employee in full is the presence of the specified contract, and if it is absent, then it is possible to recover material damage from an employee only in the amount of average earnings, which is enshrined in Article 241 of the Labor Code of the Russian Federation. An example in this case is the following court decision. The individual entrepreneur B. applied to the court with the aim of recovering material damage from the shop assistants D. and V., which was caused by them in the performance of their labor duties. He explained that these workers are in labor relations with him, but an agreement has not been concluded with them either on full financial responsibility, or on responsibility for the entrusted commodity and material values. After the inventory, D. and V. had a shortage in the amount of 29,765 rubles. He asked to recover from D. and V. the indicated amount of damage jointly and severally. The court dismissed the claim on the grounds that there was no agreement on full liability for damage caused and, in this regard, the decision should be based on the provisions of Article 241 of the Labor Code of the Russian Federation8.
The second mistake: the employer demands compensation for material damage in full, while the employee is not a financially responsible person. Material liability in full is imposed only in those cases that are provided for by the Labor Code of the Russian Federation. Employees of the age category up to 18 years old bear this responsibility only in case of deliberate damage, in case of damage in a state of alcoholic, drug or other toxic intoxication and for damage caused by an administrative violation or a crime (Article 242 of the Labor Code of the Russian Federation).
Mistake three: with the current collective financial liability, the employer requires compensation for damage from only one person. Article 245 of the Labor Code of the Russian Federation provides for the possibility of concluding an agreement on compensation for damage in full collectively, if it is impossible to delineate the responsibility of each employee separately. To be exempted from such responsibility, a member of the collective must prove his innocence.
Mistake four: the employer does not provide proper storage of material values entrusted to his employee. Article 239 of the Labor Code of the Russian Federation establishes a provision according to which a circumstance precluding material liability in this case is a failure on the part of the employer to ensure the proper storage of material assets that he entrusted to the employee.
Fifth mistake: the employer was unable to prove the amount of the damage caused. This obligation is enshrined in article 247 of the Labor Code of the Russian Federation. A claim may not be satisfied if there is no evidence of the amount of damage caused and if the procedure for establishing a specific amount of damage is flawed. Mistake six: the employer makes claims against the employee for damages under circumstances that exclude his financial liability. Article 239 of the Labor Code of the Russian Federation establishes the circumstances under which the material liability of the employee is excluded. These are: force majeure, normal economic risk, extreme necessity or necessary defense, failure by the employer to ensure the proper storage of material assets entrusted to the employee (discussed in the fourth error). The seventh mistake: the employer brings the employee to financial responsibility for causing damage as a result of his criminal actions in the absence of a court verdict that has entered into legal force. So, according to paragraph 5 of Article 243 of the Labor Code of the Russian Federation, full liability for damage in the commission of criminal acts is imposed on the employee by a court verdict that has entered into legal force.
Mistake eight: the employer demands damages in excess of the actual damages. Article 246 of the Labor Code of the Russian Federation establishes the amount of damage based on the basis of actual losses, which are calculated from market prices in force at the time of damage, but not lower than the value of the property according to accounting data, taking into account the degree of deterioration of this property.
Mistake ninth: the employer collects overpaid wages in the event that such a right is not granted to him (Article 137 of the Labor Code of the Russian Federation). According to this article, such an amount can be recovered in the following cases: upon reimbursement of an unearned advance that was issued against wages; in order to repay the advance payment that was not returned or unused on time and which was issued in connection with a business trip or transfer to work in another locality; in order to return the amount that was excessively paid to the employee due to the admission of accounting errors or admission of the employee's guilt in non-compliance with labor standards; in case of dismissal of an employee before the end of the year for which he has already received annual paid leave and for unworked vacation days.
Mistake ten: the employer demands the recovery of the amount of damage upon the expiration of the limitation period. According to Article 248 of the Labor Code of the Russian Federation, the order must be made by the employer within one month from the date of the final determination of the amount of damage caused by the employee.
Based on what is stated in this article, it can be concluded that within the scope of the employment contract concluded between the employee and the employer, property relations may arise, in which the employee will be obliged to pay the employer a certain amount of money. This article discusses both the peculiarities of initiating and preparing cases for the recovery of material damage caused to the employer by the employee, and ten typical mistakes made in this category of cases. In judicial practice, cases on the consideration of labor conflicts belong to the category of particular complexity. This is due to the complexity of the actual composition of these cases, the inconsistency of the evidence base, the ambiguity of the application of the norms of law. When preparing to consider cases of this category, the Justice of the Peace should investigate the causes and conditions that led to the occurrence of damage9. In the event of a violation of the law, the court issues a special ruling, according to which it is required to take measures to eliminate the identified deficiencies. As for the process of preparation and consideration of cases on the recovery of damage by the employer from the employee, unfortunately, it should be noted that today there are obvious gaps in individual norms of both material and procedural legislation concerning the consideration of individual and collective labor disputes10. The shortcomings of legal theory have an impact on law enforcement practice and, in the current situation, many issues should be subjected to deep theoretical comprehension.
Step 3
Course of Russian labor law: Vol. 1: General part: textbook for universities / Ed. E. B. Khokhlova. - SPb.: Publishing house of St. Petersburg University, 1996. - 356s.
"Civil Procedure Code of the Russian Federation" dated November 14, 2002 N 138-FZ (as amended on December 28, 2013)
Commentary on the Labor Code of the Russian Federation.-2nd ed., Rev., Add. and revised / Resp. ed. prof. Yu. P. Orlovsky. - M: INFA-M, 2011. - 985s.
"Labor Code of the Russian Federation" dated 30.12.2001 N 197-FZ (as amended on 02.04.2014), (as amended and supplemented, entered into force on 13.04.2014)
Mavrin, S. P. Labor law of Russia: textbook for universities. / S. P. Marvin, E. B. Khokhlov. - M.: Jurist, 2002.-- 345s.
