Who will pay if an employee damages the employer's property?

Employees can damage company property: a salesperson can break a store window, a programmer can spill coffee on the keyboard. And a liability agreement does not guarantee that the employee will compensate for damage.

In this article we will tell you how an employer can get money for damaged property.

From this article you will learn:

1. What is employee financial responsibility?
2. When is it possible and when is it impossible to recover compensation from an employee who damaged property?
3. How much will the employee pay for the damage caused?
4. How to draw up a liability agreement so that it is considered valid and helps compensate for damage
5. How to prove an employee’s guilt and recover damages
6. Conclusions: how to preserve company property and what to do if it doesn’t work out

What is employee financial responsibility?

Financial liability is the employee’s obligation to compensate for damage if he damages, breaks or loses the employer’s property. For example, a loader broke a TV, a turner ruined workpieces, a salesman took money from the cash register, an accountant did not report expenses.

Such situations are regulated by the Labor Code of the Russian Federation. The law provides two types of liability for an employee:

1. Full - the obligation to compensate for damage in full (Article 242 of the Labor Code of the Russian Federation). Direct damage is the extent to which the employer's property has been reduced or damaged and the cost of restoring or purchasing a new one. For example, an employee breaks a computer monitor - he is obliged to buy a new one or pay for repairs. If an employee causes damage to the property of other people for which the employer is responsible, then this is also direct damage. For example, a courier broke an expensive guitar during shipment. The employer compensates the client for the damage and can then seek compensation from the perpetrator.
2. Limited - compensation for damage within the limits of average monthly earnings (Article 241 of the Labor Code of the Russian Federation). For example, an employee damaged property worth 200 thousand rubles. His salary is 50 thousand rubles, so he will pay exactly this amount.

Financial responsibility can be individual or collective. In the first case, the employee is liable with his property. In the second, responsibility is distributed among team members.

An agreement on collective liability is concluded only if several employees perform work together. For example, store clerks, loaders or installers. But there is a nuance.

If one of the employees quits, goes on vacation, or takes long-term sick leave, for example, undergoes surgery, it is necessary to conduct an inventory. This will help record the safety of property at the moment when one of the employees leaves the workplace.

When an employee is transferred to another position, it is necessary to renew the collective liability agreement with the new employee. Before concluding a contract, you also need to first conduct an inventory.

Individual responsibility

Individual liability can be either full or limited. With limited financial liability, the employee compensates for damage within predetermined limits. This limit, as a rule, is the average monthly earnings (provided that the amount of damage exceeds it). When calculating the average salary, it is necessary to take into account all payments that are included in the remuneration system: wages, bonuses, additional payments, etc. (Resolution of the Government of the Russian Federation of December 24, 2007 No. 922).

Limited financial liability occurs in all cases of damage to material assets. Most often - in case of loss of documents, loss of mechanisms, damage to property.

In contrast to limited liability, full financial liability consists of the employee’s obligation to compensate the damage caused to the employer in full.

It arises if a written agreement on full responsibility is concluded with the employee, as well as on the basis of an employment contract with deputy managers and the chief accountant.

In addition, Article 243 of the Labor Code of the Russian Federation stipulates the following cases of full financial liability:

• lack of valuables;
• intentional causing of damage;
• damage to material assets in a state of alcohol, drug or other toxic intoxication (requires documentary confirmation in the form of a medical report and an act of suspension from work);
• damage caused as a result of criminal actions of an employee established by a court verdict, or as a result of an administrative violation;
• disclosure of information constituting a secret protected by law (state, official, commercial or other);
• damage to property by an employee not in the performance of his job duties.

The list of positions of employees with whom agreements on full financial liability can be concluded is given in Resolution No. 85: directors, managers, administrators, warehouse managers, cashiers, controllers, forwarders.

Full responsibility is assigned in the Labor Code of the Russian Federation to the head of the company, who in some cases is obliged to compensate not only the damage itself, but also the losses caused to the organization by his guilty actions.

When is it possible and when is it impossible to recover compensation from an employee who damaged property?

This point is regulated by Art. 233 Labor Code of the Russian Federation. It will be possible to recover compensation if:

• damage has been established;
• the employee’s guilt has been proven;
• there is a connection between the employee’s actions and the damage caused;
• the employee violated the rules, for example, did not act in accordance with the labor instructions or the internal charter of the company.

In Art. 239 of the Labor Code of the Russian Federation stipulates cases when an employee does not have to pay:

1. Force majeure: due to a flood or hurricane, building materials in the warehouse have deteriorated.
2. Normal economic risk: product expiration date has expired.
3. Self-defense: armed robbers broke into the store, the cashier gave them money.
4. The employer did not provide storage conditions: a fire broke out at the jewelry production site due to faulty wiring. But the jeweler is not obliged to monitor utilities.

Briefly about the regulatory framework

The financial liability of the employee and the employer is established in three chapters of Section XI of the Labor Code of the Russian Federation, namely:

• general provisions are established in Chapter. 37, which contains two articles that establish the obligation of a party to an employment contract to compensate for damage caused by it to the other party to this contract (Article 232 of the Labor Code of the Russian Federation), defines the conditions for the onset of material liability of a party to an employment contract;
• The employer's responsibility to the employee is discussed in Chapter. 38;
• The financial liability of the employee is regulated by Ch. 39.

Please note that:

• under the terms of contracts (labor or financial liability), the employer’s liability to the employee cannot be lower, and the employee’s liability cannot be higher, than it is established by the Labor Code of the Russian Federation or other federal laws;
• in the event of termination of an employment contract, the party to this contract is not released from financial liability;
• financial liability can be applied exclusively to persons with whom employment agreements have been concluded, including part-time workers, temporary and seasonal workers. Individuals with whom civil contracts have been concluded are liable to the other party only within the framework of the Civil Code of the Russian Federation.

All types of financial responsibility of the employee and employer to each other are shown in the diagram.

How much will the employee pay for the damage caused?

The amount of damage is calculated taking into account how much the property was worth on the day of the incident.

For example, an employee damaged equipment worth 100 thousand rubles. The company bought a new one 2 months later, and it already cost 120 thousand rubles. The amount of damage in this case will be 100 thousand rubles.

According to Art. 246 of the Labor Code of the Russian Federation, the amount of damage cannot be less than the value of the property according to the accounting report, taking into account natural wear and tear.

For example, a company purchased laminate flooring according to a report for 50 thousand rubles. After 5 years, taking into account wear and tear, it began to cost 10 thousand rubles. The amount of material damage is 10 thousand rubles.

Damage is calculated based on market prices in a particular region. That is, if the damage is caused in Voronezh, then it is calculated at Voronezh prices. Although in other cities the product may cost more or less.

According to Art. 238 of the Labor Code of the Russian Federation, lost profits cannot be recovered.

For example, a turner damaged a machine worth 50 thousand rubles. The owner of the workshop is sure that the damage is 200 thousand rubles for 3 days of downtime. But according to the law, a turner will only pay for repairs or the purchase of a new machine.

Even if the employer proves the employee’s guilt and provides justification for the losses, there is no guarantee that it will be possible to receive 100% compensation. The court may reduce the amount, referring to Art. 250 Labor Code of the Russian Federation. An exception is damage from a crime committed for personal gain. For example, if a loader stole goods from a warehouse.

In each case, the court itself decides whether the compensation can be reduced. The reasons may be:

• the culprit supports elderly parents;
• the culprit has a difficult financial situation;
• The culprit has a large family.

When will an employer go to court?

An employer may need to go to court if:

• he missed the deadline (1 month) during which he could take measures to independently recover losses from the employee;
• the employee refused to compensate for the damage voluntarily;
• the employee, who partially compensated for the losses voluntarily in accordance with the agreement concluded about this, quit and stopped making payments.

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The employer is given no more than 1 year from the date of discovery of the damage to make such an appeal (Article 392 of the Labor Code of the Russian Federation).
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How to prove an employee’s guilt and recover damages

To recover material damage from an employee, you need to conduct an internal investigation and collect evidence of guilt.

The first stage: draw up an incident report. Describe what happened and why. The act is drawn up in any form. The document confirms that the damage was caused.

Stage two: issue an order to conduct an internal investigation. To check, you need to assemble a commission. It usually includes a manager, deputy, secretary, lawyer and accountant. Each member of the commission must sign the order.

Standard form of an order to conduct an investigation from the Rostrud website

Stage three: obtain a written explanation from the employee. A verbal explanation will not do. A registered letter must be sent to the employee’s residential address demanding an explanation. If he refuses or does not respond on time, draw up an act of refusal. His employee may not sign.

Standard form of an act on an employee’s refusal to provide an explanatory letter from the Rostrud website

Stage four: draw up a conclusion (act) of the commission on the results of the internal investigation. In court, it is important to show that the commission investigated the case and did not simply accuse the employee. You can interview witnesses, provide CCTV footage, order an independent examination of the damage, and conduct an inventory.

For example, if a driver is involved in an accident, evidence of his guilt will be a traffic police report, and if money is missing from the cash register, a recording from a CCTV camera will be evidence.

If the employee refuses to sign the conclusion, a statement of refusal must be drawn up.

The conclusion on the results of the investigation should contain the following sections:

• the fact of damage, its nature;
• extent and causes of damage;
• employee's fault;
• illegality of the actions committed;
• a cause-and-effect relationship between the employee’s actions and the damage.

Standard form of the report on the results of the investigation from the Rostrud website

Fifth stage: issue an order to hold the employee financially liable. This must be done within a month after the extent of the damage is established. The employee must sign the order. If he refuses or has disappeared, draw up an act of refusal.

The employee has the right to appeal the results of the investigation in court.

Standard form of an order to hold an employee financially liable from the Rostrud website

Then there are three possible scenarios:

1. The employer issues an order and the damages are deducted from the employee's salary. This is possible when the amount of compensation does not exceed the monthly salary. You can deduct no more than 20% of your salary each month.
2. The employee enters into a separate agreement with the employer on the period and procedure for compensation for damages. The parties can agree on anything: the employee can pay the entire amount in cash at once, or he can pay in installments for several years, for example, 7 thousand rubles every month for 5 years.
3. The amount of damage is greater than the salary, the employee refuses to pay - compensation will have to be recovered through the courts.

Example from judicial practice: Chelyabinsk District Court, case No. 2-297/2020 dated February 25, 2021.

During the inventory of the shoe store, a shortage of 246 thousand rubles was revealed. The owner demanded to recover this amount from four sellers. Agreements were concluded with them on full collective financial responsibility.

The court rejected the claim. During an internal investigation, violations were found. In addition, the plaintiff did not provide invoices for the goods to substantiate the amount of damage.

Stage six: go to court. An employer can file a claim within a year of discovering the damage. Such cases are heard by the district court, not the magistrate.

You can file a claim against a fired employee. Dismissal does not relieve one from liability.

The following must be attached to the claim:

• labor contract;
• job description;
• agreement on full financial liability;
• act on the transfer of material assets to the employee;
• incident report;
• order to create a commission;
• employee's explanatory letter;
• conclusion on the results of the internal investigation;
• order to prosecute;
• evidence of guilt;
• acts of refusal, if any.

Example from judicial practice: Obninsk City Court, case No. 2-40/2020 dated February 25, 2021.

The construction company sued the accountant, accusing him of unjust enrichment. Allegedly, he spent a million rubles on the purchase of materials and did not report.

The court rejected the claim. One of the arguments was a violation of the statute of limitations.

How is a property damage report drawn up?

There is no unified form for the act of damage. It must be drawn up in free form, indicating the following details:

1. testimony of the specialist who discovered the damage;
2. list of damaged valuables;
3. cost of damage;
4. possibility of recovery.

The document is signed by all members of the commission to investigate what happened. It is the basis for determining the degree of guilt of the employee for damage to property and imposing punishment.

Important! If a damage report was not drawn up, the employee does not have an obligation to compensate for the damage.

When guilt is established, the employee and the company can agree on voluntary repayment of damages. In this case, installment payments are possible. If an employee refuses to transfer funds, they can be recovered through the court.

Author of the article

Dmitry Leonov

Work experience 15 years, specialization - housing, family, inheritance, land, criminal cases.

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Conclusions: how to preserve company property and what to do if it doesn’t work out

If you want to keep the company's property:

1. Conclude an agreement with the employee on full financial responsibility. The employee's position must be indicated as in the list of positions and works. The wording cannot be changed, otherwise the document will not have legal force.
2. Draw up an act of acceptance and transfer of material assets (goods, cars, tools) to the employee in two copies. Write down what these values ​​are, who transfers them to whom and in what quantity. Add a clause stating that by signing the deed, the employee confirms the integrity of the property.
3. Add a section on financial responsibility to the employment contract. This does not guarantee full compensation for damage, but it will encourage the employee to take care of your property.

If an employee damages, defaces, or steals property, then to recover material damage:

1. Draw up an incident report and conduct an internal investigation. Collect evidence of the employee's guilt. Get a written explanation from him. If he does not give an explanation, draw up a refusal act.
2. Prove the extent of the damage. Provide invoices for the goods, the conclusion of an independent appraiser, accounting data and other information.
3. If the amount of damage is less than the employee’s monthly salary, then compensation is deducted from his salary. If the culprit refuses to pay, collect documents to go to court.

How does voluntary compensation work?

When the amount of damage is greater than the employee's average monthly earnings (and this usually happens in situations where there is an agreement on full liability), the employee who admits his guilt may agree to voluntarily compensate him in full or in part. Due to the significance of the amount, the parties draw up a document indicating this intention, containing a schedule of planned payments.

It is also possible to compensate for damage by replacing the damaged property with a new one or repairing the damaged property.

An audit will not replace an inventory

Internal control is carried out not only by the management bodies of the economic entity, but also by the audit commission (auditor) of the economic entity (clause 18.1 of Information No. PZ-11/2013).

In a corporate organization, the election of an audit commission (auditor) falls within the exclusive competence of the highest body of such an organization (Part 2 of Article 65.3 of the Civil Code of the Russian Federation).

From the perspective of labor legislation, an economic entity is an employer. Article 20 of the Labor Code of the Russian Federation defines an employer as an individual or legal entity that has entered into an employment relationship with an employee.

In cases provided for by federal laws, another entity entitled to enter into employment contracts may act as an employer. But the audit commission (auditor) does not have the authority to conclude employment contracts. Thus, in an LLC, the auditor is considered a body of the company and is elected exclusively by the general meeting of its participants. A person performing the functions of the sole executive body of a company cannot be a member of the audit commission of the company or an auditor (clause 6 of Article 32, subclause 5 of clause 2 of Article 33 of Law No. 14-FZ).

Based on Article 47 of Law No. 14-FZ, the auditor of the company has the right at any time to conduct inspections of the financial and economic activities of the company and have access to all documentation relating to the activities of the company. At the request of the auditor, the director of the company, as well as employees of the company, are obliged to give the necessary explanations orally or in writing.

note

Shortage is the physical absence of cash and material resources, including goods and fixed assets, identified as a result of control procedures, audits, and inventory (clause 172, section 2 “GOST R 51303-2013. National standard of the Russian Federation. Trade. Terms and definitions” , approved by order of Rosstandart dated August 28, 2013 No. 582-st).

Thus, shortages can also be identified as a result of an audit. However, the auditor does not have the right to take any action to recover damages from employees. Article 247 of the Labor Code of the Russian Federation vests the corresponding powers only with the employer. It reads:

• 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.

Let us add on our own: such specialists can be members of the audit commission.

So, it is unlawful to equate an audit with an inventory, although the Ministry of Finance of Russia in its letter dated February 13, 2009 No. 03-03-06/4/4 did not see any difference between these activities. True, the letter is devoted to tax legal relations. Meanwhile, in the tax sphere, paragraph 1 of Article 11 of the Tax Code applies, by virtue of which the concepts and terms of civil and other branches of legislation of the Russian Federation should be applied in the meaning in which they are used in these branches of legislation, unless otherwise specifically provided for by this code.

As a result, we believe: following an audit that reveals a shortage, the manager is obliged to schedule an unscheduled inventory of the same assets.

Seller's shortage

The actual presence of inventory items is revealed during the inventory (Part 2 of Article 11 of the Federal Law “On Accounting”). We remind you that the inventory procedure is regulated by:

• Guidelines for inventory of property and financial obligations (approved by order of the Ministry of Finance of Russia dated June 13, 1995 No. 49);
• subsection IV “Inventory and inspection” of section I of the Methodological guidelines for accounting of inventories (approved by order of the Ministry of Finance of Russia dated December 28, 2001 No. 119n).

Inventories are carried out in a planned manner established by the head of the organization. However, an inventory is mandatory before drawing up annual financial statements (except for property, the inventory of which was carried out no earlier than October 1 of the reporting year), when financially responsible persons change, or when facts of property theft are revealed.

Verification of the actual availability of property is carried out with the obligatory participation of financially responsible persons.
EXAMPLE 1. CASE FROM PRACTICE
During the inventory process, the seller was informed about a sudden attack of illness in a disabled child. Having warned the administration about the impossibility of further participation in the inventory, the employee left the store. At the same time, she asked to postpone the inventory to the next day. Her request was not fulfilled and the inventory was completed without her participation. As a result of the inventory, a shortage was identified. However, under such circumstances, the employee’s financial liability is excluded. Firstly, her action was dictated by extreme necessity, and secondly, in the absence of a financially responsible person, the employer was obliged to suspend the inventory.

Based on Article 246 of the Labor Code, the amount of damage caused to the employer due to loss and damage to property is determined by actual losses, calculated on the basis of market prices prevailing in the area on the day the damage was caused, but not lower than the value of the property according to accounting data.

The actual cost of missing inventory items is reflected in the debit of account 94 “Shortages and losses from damage to assets”:

DEBIT 94 CREDIT 41

— reflects the amount of shortage of goods.

At the same time, VAT amounts on written-off goods that were previously lawfully accepted for deduction are not subject to restoration (decision of the Supreme Arbitration Court of the Russian Federation dated May 19, 2011 No. 3943/11).

Based on Article 247 of the Labor Code, requiring a written explanation from the employee to establish the cause of the damage is mandatory. In case of refusal or evasion of the employee from providing the specified explanation, a corresponding act is drawn up.