Differences in the material responsibility of an employee and an employer. What are the actions of the employee

Introduction 3

1. The concept of material liability of the parties to an employment contract, the grounds and conditions for its occurrence 4

2. Material liability of the employee: concept, types, procedure for attracting 7

3. Liability of the employer 12

Conclusion 16

References 17

Introduction

The basis of any society is the labor activity of people. Labor is a condition of human existence, independent of any social forms, and constitutes his eternal natural necessity.

The social organization of labor, combining material (objective) and volitional (subjective) relations, on the one hand, is influenced by the technical means of labor, and on the other, it is under the influence of various forms of social consciousness (politics, morality, law, aesthetics, etc.). ).

The need for legal regulation of the organization of labor is due to the needs of social production and the entire course of its historical development. Regulatory regulation is the most effective and technical way of organizing numerous and varied public relations, ensuring their stability and implementation, overcoming arbitrariness in relations between people.

The issues of responsibility of employees and employers are most detailed in labor law.

The subjects of labor legal relations are in an unequal position in relation to each other. The employee is an economically weaker side employment relationship... He is in a more dependent position on the employer than the employer on him. This inequality of the subjects of the labor relationship causes significant differences in legal regulation. material responsibility employer to employee and employee to employer. They relate to the determination of the amount of compensated damage, the procedure and limits of compensation, the nature of the legal norms governing material liability.

This work assumes the study of the liability of the parties employment contract, its grounds, types, procedure for attracting and differences in the material liability of an employee and an employer.

1. The concept of material liability of the parties to an employment contract, the grounds and conditions for its occurrence

Material liability in labor law is a legal obligation of one of the parties to an employment relationship to compensate for damage caused by unlawful culpable actions of the other party in the amount and in the manner prescribed by law.

Article 232 of the Labor Code of the Russian Federation first of all says about the obligation of a party to an employment contract to compensate for damage caused by it to the other party in accordance with the Labor Code of the Russian Federation and other federal laws. This follows from Art. 1 of the Labor Code of the Russian Federation, which considers the material liability of employers and employees as a special type of relationship, the legal regulation of which in accordance with Art. 6 of the Labor Code of the Russian Federation is attributed to the competence of federal government bodies.

The obligation of a party to an employment contract to compensate for the damage caused by it to the other party to this contract begins from the date of its occurrence, regardless of whether the employee is brought to disciplinary, administrative or criminal liability for this damage (Article 248 of the Labor Code of the Russian Federation), and the employer - to administrative responsibility.

An employment contract or concluded in writing the agreements attached to it may specify the material responsibility of the parties to this agreement. At the same time, the contractual liability of the employer to the employee cannot be lower, and the employee to the employer - higher than that provided for by the Code or other federal laws.

This means, for example, that in a contractual manner it is impossible to impose on the employee full financial responsibility for the car, machine and other equipment that he serves. Such liability is governed by the relevant provisions of the Code (Articles 244, 245 of the Labor Code of the Russian Federation), which are not subject to broad interpretation. On the other hand, practice follows the path of establishing, in a contractual manner, additional compensation by the employer for harm caused to the health of the employee in connection with the performance of his labor duties. This approach is consistent with Art. 9 of the Labor Code of the Russian Federation, which says that the level of rights and guarantees of workers established by labor legislation cannot be reduced by contract. For an exception to this rule, see Art. 243 and 277 of the Labor Code of the Russian Federation.

Termination of an employment contract after causing damage does not entail the release of the party to this contract from material liability provided for by the Code or other federal laws.

The Code of Administrative Offenses of the Russian Federation (Article 4.1) provides that the appointment of an administrative penalty does not relieve a person from fulfilling the obligation for which the penalty was imposed. This rule is important for the material liability of an employer brought to administrative responsibility for offenses in the labor sphere. At the same time, the Labor Code of the Russian Federation (Art. 243) strengthens the employee's material liability for damage caused by a crime or administrative violation.

It seems possible to single out some common features that characterize the material responsibility of the parties to the employment contract - the employer and the employee:

The emergence of bilateral material liability due to the existence of an employment contract;

Only the parties to the contract are subjects of liability;

Responsibility arises in the event breaches of duty under an employment contract;

Each party is only liable for a culpable breach of obligations if this caused damage to the other party;

Possibility of compensation for damage on a voluntary basis.

Consider the grounds on which material liability arises. They are listed in Art. 233 of the Labor Code of the Russian Federation:

a) the presence of property damage to the injured party. This is a prerequisite for material responsibility. Since the latter is impossible without damage. Each of the parties is obliged to prove the amount of damage caused to it.

b) unlawfulness of behavior (action or inaction). This means committing them contrary to the law, other regulatory legal acts, as well as the terms of the employment contract. As well as violation of the obligations imposed on the party to the employment contract by the relevant legal regulations. The main duties of an employee are provided for by the Labor Code of the Russian Federation in Article 21, they can be assigned to him by internal regulations, an employment contract, and instructions from the employer.

c) Wine. It is possible in the form of intent, which is extremely rare in labor relations, and by negligence. Either form is sufficient to impose liability, but the amount of damages reimbursed depends on whether the fault is intentional or reckless.

d) Causal relationship. It means that the damage was not accidental, it was the result of specific actions of one or the other party to the employment contract. Material liability does not arise for accidental consequences. The causal relationship is established by the court, based on the evidence presented by the parties

Material liability for labor law similar to property liability under civil law. These types of liability are based on the obligation to compensate for the damage caused. At the same time, there are very significant differences due to the specifics of the subject and method of these industries, as well as their service role. According to labor legislation, only direct damage is subject to compensation, in civil, in addition to compensation for losses, lost profits are also subject to compensation.

2. Material responsibility of the employee: concept, types, procedure for attracting

In accordance with article 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for direct actual damage caused to him, which means a real decrease in the employer's cash assets or deterioration of his condition. This property also includes the property of 3 persons, if the employer is responsible for its safety.

Also, direct damage includes the costs or surplus payments of the employer for the acquisition or restoration of property.

Excess payments may be penalties paid by the employer for failure to fulfill contractual obligations with business entities. Equally, these include the wages paid to the employee during his unlawful deprivation of the opportunity to work (Article 234 of the Labor Code of the Russian Federation), as well as the amounts paid to the employee for the delay in payment wages(Article 236 of the Labor Code of the Russian Federation) and compensation for moral damage caused to him (Article 237 of the Labor Code of the Russian Federation).

Lost income (loss of profits) collection from the employee within labor legislation are not subject. Reimbursement of lost profits by an employee is possible only within the framework of civil law.

The employee is financially liable both for direct actual damage directly caused by him to the employer, and for damage incurred by the employer as a result of compensation for damage to other persons. This approach can be called a "regressive approach".

The Labor Code of the Russian Federation provides for cases when an employee is released from material liability, although the damage was caused:

The damage was the result of force majeure

Damage due to normal business risk

Damage caused by extreme necessity or necessary defense

The damage occurred due to the failure of the employer to fulfill his obligations to ensure proper storage conditions for the property entrusted to the employee.

Of particular importance is the provision that excludes the employee's material liability for damage resulting from the execution of an order or instruction. Responsibility for causing such harm is borne by the person who gave the unlawful order or order. However, an employee who has caused damage intentionally in pursuance of a knowingly unlawful order or order, is liable on a general basis.

Bringing an employee to financial responsibility is a right, not an employee's obligation. By virtue of Art. 240 of the Labor Code of the Russian Federation, the employer has the right to completely or partially refuse to recover damage from the guilty employee.

Labor legislation provides for 2 types of material liability:

1. Limited liability.

By general rule an employee who has caused damage to the property of the employer bears limited financial liability - up to no more than his average monthly earnings.

The Labor Code of the Russian Federation includes an article (139) devoted to the calculation of average wages. It says that a unified procedure is established for all cases of determining the size of the average wage, provided for by the Labor Code of the Russian Federation. The specifics of the established procedure for calculating the average wage are determined by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations.

2. Full material responsibility.

The employer comes before the employee in the following cases:

causing damage by unlawful deprivation of his ability to work;
causing damage to the property of the employee;
delays in the payment of wages and other payments due to the employee;
causing moral harm to an employee.

The employer is obliged to compensate the employee material damage inflicted on him by unlawful deprivation of his ability to work (Article 234 of the Labor Code of the Russian Federation). Such responsibility of the employer occurs if the employee has not received earnings as a result of:

illegal suspension of an employee from work, dismissal or transfer to another job;
the employer's refusal to comply or untimely execution of the decision of the review body labor disputes or the state legal labor inspector on the reinstatement of the employee at his previous job;
delay by the employer in issuing a work book to the employee, entering in the wrong or inconsistent with the law wording of the reason for dismissal.

According to the legislator, this is an exhaustive list. Until 2006, Art. 234 of the Labor Code of the Russian Federation contained an indication of other cases provided for by federal laws and the collective agreement.

Currently, the most common ground for holding an employer liable is illegal suspension from work, dismissal or transfer to another job. Suspension from work, dismissal and transfer to another job are governed by the current labor legislation. In the cases provided for in Art. 76 of the Labor Code of the Russian Federation, the employer is obliged to suspend, not allow the employee to work. Therefore, most often it is not the very fact of the employee's suspension from work that is illegal, but the procedure for applying such suspension is violated, which makes the corresponding order (order) of the employer illegal. So, when an employee who appears at work in a state of alcoholic, drug or other toxic intoxication is removed, his medical examination is not carried out or an act of his appearance in this form at the workplace is not drawn up.

There are frequent cases of transfer of an employee at the initiative of the employer to another job without his consent, prompting the employee, instead of an employment contract concluded for an indefinite period, to agree to fixed-term contract, or under threat of dismissal to move to a part-time work week.

In a small business, employers often do not apply for a job when applying for a job. work book despite the demands of the employee.

The employer is financially liable for damage caused to the employee's property. Such responsibility arises in the event of damage, deterioration, loss of outerwear, headgear, and other things belonging to the employee, even if he did not transfer them for safekeeping to the wardrobe. They can be stored at the workplace, on the territory of the organization in specially designated places.

The property of the employee also includes monetary values. In the local regulatory legal acts, the employer may be obliged to compensate the employee for the non-reimbursable costs incurred in purchasing tickets, booking rooms in a hotel, etc. in the event of a vacation postponement.

Of particular importance in market conditions The legislator pays for the management of the timely payment of wages and other payments due to the employee.

Ensuring the right of every employee to timely and full payment of fair wages, ensuring worthy of a man existence for himself and his family, the Labor Code of the Russian Federation is enshrined as the basic principle of labor law (Art. 2). A similar obligation of the employer is contained in Art. 22 of the Labor Code of the Russian Federation: "To pay in full the wages due to employees within the time limits established in accordance with this Code, the collective agreement, internal labor regulations, labor contracts."

In a market economy, employer delays in wages are widespread. This has become commonplace. The responsibility of the employer in such cases arises regardless of his fault.

The legislator has provided for a number of guarantees for the employee, encouraging the employer to settle accounts with him in a timely manner. So, if the payment of wages is delayed for more than 15 days, the employee has the right, notifying the employer in writing, to suspend work for the entire period until the payment of the delayed amount (part 2 of article 142 of the Labor Code of the Russian Federation). In case of late payment to the employee of the annual paid leave, the employer, upon the written application of the employee, is obliged to postpone such leave for another period agreed with him (part 2 of article 124 of the Labor Code of the Russian Federation).

If the employer violates the established deadline for the payment of wages, vacation payments and other payments due to the employee, the employer is obliged to additionally pay him monetary compensation in the amount of not less than 1/300 of the refinancing rate of the Central Bank of the Russian Federation in force at that time from the detained amounts for each day, starting from the next day after the deadline until the day of actual settlement, inclusive. The size monetary compensation the employee can be established by a collective or labor agreement. Moreover, it cannot be lower than that provided by law (Article 236 of the Labor Code of the Russian Federation).

In cases where financial position organization does not allow the employer to pay off workers in set time, a debt repayment schedule is drawn up, and in extreme cases, the recognition of the organization, the person as bankrupt.

The employer is also liable in the event of harm to the life and health of the employee. This responsibility is mainly governed by the rules of civil law.

An employer's violation of applicable labor laws usually causes the employee moral or physical suffering. Definition of the concept moral harm in violation of the labor rights of workers was given in the resolution of the Plenum The Supreme Court RF of December 20, 1994, No. 10 "Some issues of the application of legislation on compensation for moral harm." According to the Supreme Court of the Russian Federation. moral or physical suffering can be caused by the action or inaction of the employer, encroaching on the material goods belonging to the citizen from birth or by virtue of the law (life, health, dignity of the person, business reputation, privacy, personal and family secrets, etc.) or violating his personal non-property rights (the right to use his name, the right of authorship and other non-property rights in accordance with the law on the protection of rights to the results of intellectual activity) or violating property rights citizens.

From the above definition it follows that compensation for moral damage is possible in the case of a guilty violation by the employer, firstly, the natural rights of the employee, belonging to him from birth or by virtue of the law, both property and non-property; secondly, his personal moral rights; third, the property rights of the employee.

The employer's offense can be expressed in certain of his actions: it can be discrimination in the world of work, dismissal without legal basis or in violation of the established procedure, illegal transfer to another job, unjustified disciplinary action, etc.

The employer's guilty inaction, which violates the employee's rights, manifests itself, for example, in violation of the rules for maintaining the technical process (failure to eliminate a malfunction in the equipment, failure to take the necessary measures to provide the employee with raw materials, materials, semi-finished products proper quality, not introducing him to new or updated technological instructions, labor protection rules, which led to the release of defective products, and, accordingly, a decrease in the employee's earnings).

The employer's guilty omission may occur in the event of failure to comply with decisions judiciary on the reinstatement of an unlawfully dismissed employee at his previous job, etc.

Moral harm caused to the employee in the labor process is compensated in monetary form... Its size is determined by agreement of the parties. If the employee, in negotiations with the employer, could not agree on the need for compensation for moral damage, or the parties did not reach an agreement on its amount, then the employee can go to court. The court has the right to satisfy the employee's demands if the fact of the employer's guilty infliction of moral harm on him is proved. In this case, the amount of compensation to the employee is determined by the court regardless of the property damage subject to compensation (part 2 of article 237 of the Labor Code of the Russian Federation).

According to the Supreme Court of the Russian Federation, the amount of compensation for moral damage is determined by the court based on the specific circumstances of each case, taking into account the volume and nature of the moral or physical suffering inflicted on the employee, the degree of the employer's guilt, other noteworthy circumstances, as well as the requirements of reasonableness and fairness.

In certain cases, officials or the organization itself are responsible for the actions of an employee who violates the law. Moreover, the losses caused by the employee can reach significant amounts. The most common case is that the seller does not use CCP when selling goods (works or services). What other cases of employer liability are encountered in practice? Can this responsibility be minimized or avoided? The answers to these and other questions are in our article.

When and why does responsibility come?

The employer's liability for harm caused by the employee to third parties is established by Art. 1068 of the Civil Code of the Russian Federation. It says here that an organization or an individual entrepreneur is obliged to compensate for harm caused by an employee in the performance of labor (official, official) duties.

In this case, both people hired under an employment contract and those who perform work under a civil law contract are considered employees (Article 1068 of the Civil Code of the Russian Federation).

In the event of a legal dispute, the respondent in such cases is the subject of responsibility (the employer), and the employee, as the direct cause of harm, is involved as a third party.

Please note: the employer will be liable even if, at the time of harm to a third party, he did not have a contractual relationship with the person whom he engaged to perform the work.

So, in one case, the plaintiff's argument that the seller who sold the goods without using the cash register has nothing to do with the individual entrepreneur, could not serve as a basis for releasing the latter from liability. Indeed, in accordance with Art. 18 of the Labor Code of the Russian Federation, the actual admission to work is considered a conclusion labor agreement... The fact of admission to work in point of sale established by the court and confirmed by the case materials ( Resolution of the Federal Antimonopoly Service of the Moscow Region dated 10/14/1998 N КА-А40 / 2509-98).

Another similar case was considered by the court.

During the inspection, the controllers found that when providing the service for soldering the chain, the jeweler did not use the KKT, did not issue a check or a strict reporting form. This violation was recorded by the auditors in the inspection report and the protocol on an administrative offense. Based on the results of considering the materials of the audit, the tax inspectorate issued a resolution to hold the employing company liable under Art. 14.5 of the Administrative Code of the Russian Federation in the form of 30 thousand rubles. fine.

In its cassation appeal, the firm indicated that at the time of the inspection the jeweler was not an employee of the firm. But these arguments were rejected by the court on the following grounds. During the inspection, the jeweler directly provided the service of soldering the chain at the address of the workshop owned by the employer.

And if a person started work with the knowledge or on behalf of the employer, then regardless of the execution of the employment contract in writing, the contract is considered concluded (Article 67 of the Labor Code of the Russian Federation). Therefore, the courts concluded that the jeweler was an employee of the company (resolution of the SKO dated April 21, 2008 N F08-1936 / 2008-704A).

The employer is responsible for the employee's actions, even if the harm was caused on a non-working day (of course, if the person performed work duties on that day). LLC "Voskhod" filed a lawsuit against LLC "UM-6" for the recovery of damage caused by the actions of an employee-driver "UM-6" during loading and unloading operations using a truck crane belonging to the defendant. At the hearing, it was established that, despite the fact that the driver is an employee of the defendant, he did not fulfill his labor duties (it was a day off). The driver performed work on the instructions of the plaintiff, so the defendant filed a counterclaim for the damage caused to the truck crane. In the first instance, the initial claim was satisfied, but the decision of the appellate instance in the initial claim was rejected by the plaintiff and the counter was satisfied. By the resolution of the FAS SZO dated November 21, 2003 N A56-31151 / 02, the decision and the resolution were canceled and the case was sent for a new consideration.

At the same time, the FAS SZO indicated that the crane operator was in labor relations with OOO UM-6 and, on his instructions, performed work in OOO Voskhod. The fact that it was a day off is not decisive, since in this case, too, the employee performed labor function.
In addition to the conditions listed above, the company (entrepreneur) will be liable for the actions of its employee only if the composition of the offense is established (Chapter 59 of the Civil Code of the Russian Federation). It includes:
- the onset of harm, its nature and size;
- the unlawfulness of the behavior of the tortfeasor;
- a causal relationship between the first two elements;
- the fault of the harm-doer.

The court may refuse to satisfy the applicant's claims if the entire set of the listed conditions is not proved. For example, if the causal relationship between the actions of the employee and the resulting consequences is not proven, there are no grounds for recovering losses from the employer's organization. Such conclusions follow from the resolution of the Federal Antimonopoly Service of the Russian Federation of November 2, 2005 N F08-5099 / 05. The essence of the matter is as follows. The driver, an employee of the society, damaged the gates of the plant with a KamAZ car. The plant went to court with a claim against the society for damages. At the hearing, the plaintiff did not present evidence proving that the gates were out of order precisely as a result of a hit by a KamAZ car. As a result, no damage was recovered from the employer.

Similar examples of court decisions can be found in the decisions of the FAS DO of 23.06.2008 N F03-A73 / 08- 1/1660, of 27.02.2008 N F03-A73 / 07-1 / 6465; FAS VVO dated 02.05.2007 N A38-3004-18 / 238-2006; the definition of the Supreme Arbitration Court of the Russian Federation of 05/08/2007 N 5111/07, etc.

When considering such claims, the court is obliged to take into account the gross negligence of the victim himself, if any (paragraph 2 of article 1083 of the Civil Code). But the property status of the employee - the tortfeasor does not matter, since the employer bears responsibility for his actions. At the same time, an employer who has compensated for harm to a third party has the right to shift his own losses on a recourse claim to his employee (part 1 of article 1081 of the Civil Code of the Russian Federation). In practice, the most common cases when the employer is responsible for the employee's actions are the non-use of CCP and road accidents. Therefore, we will dwell on them in more detail.

Non-use of CCP

As you know, organizations and individual entrepreneurs accepting in payment for their goods (works, services) cash and payment bank cards, are obliged to apply the CCP (Article 2 of the Federal Law of 22.05.2003 N 54-FZ "On the Application cash register equipment when making cash payments and (or) payments using payment cards ", hereinafter - the Law on CCP).

The obligation of cashiers-tellers or sellers to apply CCP is not established by the Law on CCP. This obligation is assigned to them on the basis of an employment contract.

Having identified the fact of non-use of the CCP, the tax authorities draw up a protocol on an administrative offense and issue a resolution to bring the perpetrator to justice. The amount of penalties under this article is:
for citizens (cashier-operator) - from 1,500 to 2,000 rubles;
for officials(entrepreneurs, see note to article 2.4 of the Code of Administrative Offenses of the Russian Federation) - from 3000 to 4000 rubles;
for legal entities - from 30,000 to 40,000 rubles. The exact amount of the fine is determined by the controllers. Having fined the firm, the auditors can also bring its employee to justice.

The right to punish non-use cash register(according to article 14.5 of the Code of Administrative Offenses of the Russian Federation) provided to tax inspectors (article 23.5 of the Code of Administrative Offenses of the Russian Federation, article 7 of the Law on CCP).

The law on CCP says that tax structures "carry out checks on the issuance of cash receipts by organizations and individual entrepreneurs." That is, the failure to issue a check to the buyer is the non-use of CCP.

In addition, according to the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 31, 2003 N 16 under the non-application cash machine is understood:
- the use of machines not registered with tax inspectorates;
- using a machine that is not included in the State Register;
- use of KKM without fiscal memory, with fiscal memory in non-fiscal mode or with a failed fiscal memory block;
- the use of KKM, in which the seal is missing or damaged;
- Penetration of a cash register check with an indication of the amount less than that paid by the buyer (client).

Practice shows that in this situation employer-organization always bears responsibility for the actions of his employee (resolutions of the Supreme Arbitration Court of the Russian Federation of June 28, 2005 N 480/05; FAS ZSO of April 22, 2008 N F04-2557 / 2008 (4003-A70-3); FAS MO of April 14, 2008 N KA-A41 / 2550-08; FAS RMS dated 04.06.2008 N F08-3017 / 08; FAS TsO dated 26.06.2008 N A62-4372 / 2007, dated 26.06.2008 N A68-10134 / 07-2 / 8, etc.).

The arbitrators emphasize that all trade transactions taking place at the point of sale should be considered as being carried out on behalf of the organization. This is fully consistent with the position of the Supreme Arbitration Court of the Russian Federation, given in the definition of 11/08/2007 N 8467/07: "the failure of a legal entity to use KKT due to improper performance of labor duties by its employee is not a circumstance that exempts the legal entity itself from administrative responsibility under Article 14.5 of the Administrative Code RF ".

Thus, the fault of a legal entity as a subject of administrative legal relations is determined by the fault of the seller. It would seem that the Code of Administrative Offenses of the Russian Federation still gives some loophole to employers-organizations. Let us turn to paragraph 2 of Art. 2.1 of the Administrative Code of the Russian Federation. It says here that "a legal entity is found guilty of committing an administrative offense if it is established that ... this person did not take all the measures depending on him (rules and regulations. - Ed.) Compliance." It turns out that if it turns out that all the appropriate measures have been taken, responsibility can be avoided. However, in practice, it is almost impossible to prove this.

The cashier of the company did not break through cashier's check... Having considered the company's claim against the inspectorate that fined it, the appellate court indicated that the firm was guilty of committing an offense under Art. 14.5 of the Administrative Code of the Russian Federation, absent.

After all, the company has taken all the necessary measures to ensure that the seller-cashier complies with the CCP Law. Namely: there was a cash register registered in the tax office at the point of sale; the seller, when concluding an employment contract, was familiarized with job description, where it is indicated that the seller must carry out monetary settlements with the population only with using KKM... However, the FAS ZSO ( Resolution of the FAS ZSO dated 01.11.2007 N F04-7158 / 2007 (39850-A45-3)) took the side of the inspection. At the same time, the federal court agreed with the court of first instance, which indicated that "the non-use by a legal entity of KKT ... due to improper performance of labor duties by its employee is not a circumstance that exempts the legal entity itself from liability for an administrative offense under Article 14.5 of the Code of Administrative Offenses of the Russian Federation."

Similar decisions were made by the judges in the decisions of the FAS ZSO of 03.07.2008 N F04-4071 / 2008 (7598-A46- 32), from 27.03.2008 N F04-2148 / 2008 (2927-A27-32). Individual entrepreneurs are another matter. The liability of an individual entrepreneur (Article 2.2 of the Code of Administrative Offenses of the Russian Federation) will occur only if it is proven that he is guilty (intent or negligence). Thus, the employer-entrepreneur will be liable if it is found that he did not ensure the implementation of the rules for the application of CRE by a specific employee acting on his behalf in settlements with buyers.

Arbitration practice abounds in examples when the courts exempted entrepreneurs from liability for non-use of CCP, if the unincorporated legal entity was able to prove that their fault was absent (Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation of 05/22/2007 N 16234/06; FAS UO of 15.07.2008 N F09-4992 / 08-C1 , dated 25.03.2008 N Ф09-1842 / 08-С1; FAS TsO dated 17.01.2008 N А64-2541 / 07-15, dated 14.01.2008 N А64-2540 / 07-15; FAS DO dated 21.07.2004 N Ф03 -A73 / 04-2 / 1684, etc.).

Here is one of these examples.

The shop owned by the entrepreneur had a registered tax office KKM, an employment contract and an agreement on full liability were concluded with the seller, the seller was familiarized with the job description.

In such circumstances, the courts concluded that the inspection did not prove the entrepreneur's guilt. As a result, the FAS UO released the latter from responsibility ( Resolution of the Federal Antimonopoly Service of the UO dated 25.03.2008 N F09-1842 / 08-C1).

If responsibility for non-use of CCP cannot be avoided, then it can be mitigated. The grounds for mitigating liability are listed in Part 1 of Art. 4.2 of the Administrative Code of the Russian Federation. In addition, the arbitration court may declare mitigating circumstances not specified in the Code of Administrative Offenses of the Russian Federation (part 2 of article 4.2 of the Code of Administrative Offenses of the Russian Federation). For example, the court may take into account the fact that the violation was recorded by the controllers for the first time, and reduce the amount of the fine ( Resolution of the FAS SZO dated 05/07/2007 N A56-11958 / 2006).

Other mitigating circumstances, taken into account by both judges and tax authorities, include: the unintentional nature of the seller's actions, the short duration of his stay at work, as well as the low amount of income from entrepreneurial activity(Resolutions of the FAS UO dated 09.07.2007 N F09-5099 / 07-C1; FAS SKO dated 26.12.2007 N F08-8536 / 07- 3211A).

Moreover, the court may recognize these circumstances as mitigating, regardless of whether the applicant requested that they be taken into account at the stage of consideration of the case by the administrative body. However, it should be borne in mind that the amount of the fine cannot be set below the limit provided for in Art. 14.5 Administrative Code. If the supervisors are appointed minimum size fine, then the court will have no reason to reduce it ( Resolution of the Federal Antimonopoly Service of Russia of June 28, 2005 N F08-2768 / 05-1124A).

Article 2.9 of the Code of Administrative Offenses of the Russian Federation provides for the possibility of releasing a person who has committed an administrative offense from liability if it is insignificant. Then there will be no fine at all, and the inspectors will limit themselves to only verbal remarks. The insignificance of the act is determined by the court based on the degree of public danger of the offense and the nature of the offender's guilt ( Resolutions of the FAS SZO dated 30.07.2008 N A52-529 / 2008; FAS TsO dated June 19, 2008 N A09-8008 / 07-22; FAS VVO dated 11.06.2008 N A11-11130 / 2007-K2- 28/105/17). At the same time, the small amount of the sale does not indicate the insignificance of the offense (resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 05/17/2005 N 391/05).

Accident involving a company employee

Consider another category of cases - when a company is held accountable for the actions of an employee in an accident. The party injured in an accident applies to the court in case of refusal of the causer of harm to compensate for the damage on a voluntary basis. The plaintiff establishes the amount of damage caused independently, otherwise the court will reject his claim (). Moreover, the employer compensates for the damage even if the employee caused harm to a third party accidentally (through negligence). Two situations are possible:
- the vehicle belongs to the organization;
- the vehicle belongs to the employee.

In which of these cases will the employer compensate for the harm caused by his employee? According to Part 1 of Art. 1079 of the Civil Code of the Russian Federation, it is the owners of the sources increased danger (legal entities and citizens) are obliged to compensate for the harm caused by such a source, unless they prove that the harm arose as a result of force majeure or the intent of the victim.

Therefore, the company will be responsible for an accident committed by an employee, in the event that it is she who owns the car ( Resolution of the FAS SZO dated June 17, 2008 N A56-3993 / 2007). If the car belongs to an employee, then he will be responsible.

Moreover, if we are talking about rented cars, then the lessor is responsible for the accident (Article 640 of the Civil Code of the Russian Federation). Even if the driver was following the renter's order. An example of such a court decision is. The court partially recovered from the CJSC the damage caused to the entrepreneur in the accident, indicating that the CJSC is considered the person responsible for the losses in the property of the entrepreneur. The latter acted as a lessor under a vehicle lease agreement with a crew, on the basis of which the car was leased to an LLC. However, the gross negligence of the entrepreneur himself, which contributed to the increase in harm, is the basis for reducing the amount of compensation. We emphasize: from the literal interpretation of the norm of Art. 1068 of the Civil Code of the Russian Federation, it follows that the employer is obliged to compensate for the harm caused by the employee in the performance of labor (official, official) duties.

It turns out that if an accident occurred when the employee used the car for personal purposes, the employer will not be held liable. V by the resolution of the FAS TsO dated 30.11.2007 N А36-1030 / 2006 there is such a wording: "Since CJSC" A "did not provide the court with evidence showing that the driver at the time of the accident was not in the performance of labor (official, official) duties (used the car for personal purposes) or unlawfully took possession of the car, the courts came to a reasonable conclusion about the legality of the claim made by the plaintiff. "

In this case, the plaintiff just demanded damages from the CJSC. This means that if the firm presented evidence that the driver used the car for personal purposes, the court would consider the plaintiff's claims unlawful. In such cases, the courts insist that the plaintiff must prove:
- the presence and extent of harm;
- the causal relationship between the harm that has arisen and the actions of the harm-doer;
- the reality of lost profits.

For example, the plaintiff, when considering the case in court, did not prove the existence of a causal relationship between the actions of the defendant and the losses incurred by him. There was no evidence in the case that objectively confirming that the impossibility of trolleybuses' movement was due to the specified accident during the stated period of time. Therefore, the appellate court refused to satisfy the plaintiff's claims to recover damages caused by the downtime of trolleybuses as a result of an accident that occurred through the fault of the driver of the defendant society ( Resolution of the Federal Antimonopoly Service of the UO of 24.04.2008 N F09-2652 / 08-C4).

The owner of a source of increased danger may be exempted by the court from liability in whole or in part (paragraphs 2 and 3 of article 1083 of the Civil Code of the Russian Federation), if it is proved that the accident was caused by gross negligence of the plaintiff himself.

For example, in a disputable case, the court indicated that the defendant cannot be fully liable to the plaintiff, since the fact of the accident was also facilitated by gross negligence of the plaintiff himself, which was expressed in the driver's violation of the Rules road traffic RF. And since the gross negligence of the victim himself, which contributed to the occurrence (increase) of harm, is the basis for reducing the amount of compensation (clause 2 of article 1083 of the Civil Code of the Russian Federation), the court reduced the amount of losses to be reimbursed to the victim by 50% ( Resolution of the FAS SZO dated 10.06.2008 N A05-8990 / 2007).

If the organization has insured its liability under OSAGO or has entered into a voluntary insurance contract, then the damage to the injured - to third parties will be repaid Insurance Company... But this does not exclude the repayment of damage by the organization - the owner of the vehicle. In the event that insurance compensation is not enough to fully compensate for the damage caused, the insured company compensates for the difference between the insurance indemnity and the actual amount of damage in accordance with Art. 1072 of the Civil Code of the Russian Federation ( Resolution of the Federal Antimonopoly Service of the Moscow Region of 17.09.2007 N KG-A41 / 8003-07).

In some cases, the insurance company may file a recourse claim against the defendant firm. For example, if it is proven that:
- there was an intention of the driver to harm the life or health of the victim;
- the harm was caused while driving vehicle in a state of alcoholic or drug intoxication;
- the driver was deprived of his driver's license;
- the driver fled from the accident scene;
- the driver was not included in the CMTPL agreement as a person allowed to drive a vehicle;
- the insured event occurred when using the car during the period not contractual compulsory insurance.

Let's give an example. When considering the case, the insurer, referring to the fact that the insured event occurred when the driver was in a state of alcoholic intoxication, and, moreover, fled from the scene of the accident, filed a claim with the arbitration court against the insured organization, the owner of the car. This fact was not disputed by the defendant, therefore the court ruled to impose the obligation to compensate for damage caused as a result of an accident on the defendant as an employer who owns a vehicle on the right of ownership ( Resolutions of the FAS TsO of 05.12.2007 N A62-273 / 2007, of 30.11.2007 N A36-1030 / 2006).

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1 by the Labor Code of the Russian Federation of December 30, 2001 N 197-FZ, this code was declared invalid from 02/01/2002. A similar provision is contained in Art. 67 of the Labor Code of the Russian Federation.

Magazine "Arbitration Justice in Russia" N 10/2008, Ye.A. SHELENKOVA, practicing lawyer, specialist in tax and administrative law; S.N. SHELENKOV, head of the legal group of CJSC KG "Econ-Profi"

Unfortunately, in our time, disputes between employees and employers arise quite often and one has only to "ask" google to return results for the query "lawlessness of employers" as a search engine will offer several hundred thousand results. This suggests that the topic of employer responsibility is quite relevant and many people every day ask questions about whether the employer acted lawfully towards them in a given situation and how to protect their rights. Naturally, this leads to the fact that the issue of responsibility is also acute among employers, whose rights are sometimes not less infringed upon.

It can be quite difficult to understand this topic and it is better to turn to qualified lawyers to protect your rights. However, in general, everyone needs to be guided in this issue, and in order to help both parties understand it, the Faculty of Medical Law has prepared a series of articles "Employer's Responsibility".

In this article we will look at general provisions regarding the employer's liability to the employee. You can familiarize yourself with the rest of the articles by following the links:

Article 419 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) contains an indication of bringing persons guilty of violating labor laws to five types of liability. Among them, applicable to the employer, four can be distinguished (with the exception of the disciplinary one):

material
civil law
administrative
criminal

First of all, if we talk about the responsibility of the employer to the employee, then we mean material and civil liability. With regard to administrative and criminal liability, it arises from the employer to the state. However, often such responsibility comes precisely for the violation of the employee's labor rights. Therefore, in this series of articles, we will also briefly consider these two types of responsibility.

Disciplinary responsibility can only occur with an employee, therefore, there is no place for it in the article.

General provisions on the material liability of the employer are contained in Section XI of the Labor Code of the Russian Federation. The essence of material responsibility is obligations of a party to an employment contract(in our case, the employer), causing damage to the other party(in our case, an employee), compensate this damage.

According to Art. 233 of the Labor Code of the Russian Federation for the onset of material liability, the following conditions must be met:

the presence of property damage to the injured party;
unlawfulness of the action (inaction) that caused the damage;
causal link between wrongful act and property damage;
guilt in committing an unlawful action (inaction), unless otherwise expressly provided for by the Labor Code or otherwise federal law.

Chapter 38 Labor Code four grounds for the occurrence of the employer's financial liability are considered:

illegal deprivation of an employee of the opportunity to work,
damage to his property,
delay in salary and other payments,
causing moral harm to the employee.

For more information about the obligations and consequences for the employer caused by such circumstances, read the articles "", "".

Another form of legal liability aimed at restoring the violated rights of an employee is civil liability. This type of responsibility of the employer to the employee takes place in those cases when he is responsible for the specified violation according to the norms of not labor, but civil legislation.

In this case, the mechanisms for protecting the rights of the employee are reflected in Articles 15 and 151 Civil Code RF (hereinafter - the Civil Code of the RF) and consists of the following norms:

An employee whose right has been violated may demand full compensation for losses caused to him, if the law or contract does not provide for compensation for losses in a smaller amount.
If a citizen has suffered moral harm (physical or mental suffering) by actions that violate his personal non-property rights or encroach on the intangible benefits belonging to the citizen, as well as in other cases provided for by law, the court may impose on the violator the obligation of monetary compensation for the specified harm.

As we can see, the employer's civil liability, as well as material liability, consists mainly in the imposition of property sanctions on him. In this regard, these two types of responsibility are often confused and even combined. According to some legal scholars, material liability is in fact civil law (S.S.Alekseev, S.N.Bratus, R.O. Khalfina, etc.).

You can read in more detail about the distinctive features of the material and civil liability of the employer to the employee in.

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In addition to the workers themselves and trade union bodies, the observance of labor laws and workers' rights is also monitored by supervisory bodies. In this regard, employers sometimes have to answer not only to employees, but also to the state for committed offenses.

It's good if you manage to get off with only one administrative punishment, for example, a fine. But there are times when the employer's violations are so great that the guilty person can even be brought to criminal responsibility.

Administrative responsibility of employers is established by the Code Russian Federation on administrative offenses (hereinafter - the Code of Administrative Offenses of the Russian Federation). An indispensable element for the emergence of such responsibility is the presence of guilt.

Article 2.2 of the Administrative Code of the Russian Federation identifies two forms of guilt:

Intention - an administrative offense is deemed to have been committed intentionally if the person who committed it was aware of the illegal nature of his action (inaction), foresaw its harmful consequences and wished for such consequences to occur, or deliberately allowed them or treated them indifferently;
Negligence - an administrative offense is deemed to have been committed by negligence if the person who committed it foresaw the possibility of harmful consequences of his action (inaction), but without sufficient grounds for that, presumptuously counted on the prevention of such consequences or did not foresee the possibility of such consequences occurring, although it should have been. could have foreseen them.

You can read more about the main violations of employers in the field of administrative law, as well as about the sanctions provided for such violations, you can read in the article "".

The employer's criminal liability may arise in the event of violation of the constitutional rights of citizens prescribed in Art. 37 of the Constitution of the Russian Federation: “Labor is free. ... Forced labor is prohibited. ... Everyone has the right to work in conditions that meet the requirements of safety and hygiene, to remuneration for work without any discrimination ... Everyone has the right to rest. A person working under an employment contract is guaranteed the duration of working hours, days off and holidays, paid annual leave ... ".

It should be remembered that the basis of criminal liability is the commission of an act containing all the elements of a crime provided for by the Criminal Code:

object is public attitude which is protected by the Criminal Code;
the objective side is a set of signs that characterize the external manifestation of a crime (in particular, action / inaction, cause-and-effect relationship; time, place, situation and other detailing data);
subject - an individual who commits a crime (medical worker);
the subjective side is the mental attitude of a person to the social dangerous act he is committing (guilt, motive and goal). The guilt of a person can be in the form of intent (direct or indirect) or negligence (criminal frivolity or criminal negligence).

Unlike administrative offenses, the types of violations in criminal liability are of a more socially dangerous nature, therefore, in case of criminal liability, the sanctions against the employer are more stringent.

You can familiarize yourself with an illustrative table showing the employer's offenses and articles of the Criminal Code of the Russian Federation, according to which criminal liability is provided for such violations, in the article "".

In order to understand in more detail the issue of the employer's responsibility to the employee, we recommend that you familiarize yourself with other articles of this section.

Material liability of the parties to an employment contract is expressed in the imposition by law on each party of the obligation to compensate for damage caused to the other party by non-performance or improper performance of obligations arising from the employment contract.

Otherwise, material liability- compensation for damage caused during the performance of labor duties by one of the parties to the employment contract to the other party.

Liability is one of the ways to protect the property of the employer and employee. According to labor law, material liability of both the employee and the employer is one of the types as a sanction for a labor offense. It differs from material liability under civil law by the subjects of liability, its conditions, as well as the amount of compensation by the employee for damage, which in most cases is possible only within the limits of his average monthly earnings.

An employee for damage caused to production:

partially or completely compensates for the damage caused by the worker to the production;
has an educational and disciplining effect on the employee to comply with one of the main labor duties provided for in Art. 21 of the Labor Code of the Russian Federation, - more respectful attitude to the production property;
the rules for compensation of the employee provided for by the legislation protect at the same time his wages from excessive and unlawful deductions.

The value of liability employer for harm caused to the employee:

promotes a more thorough observance by the employer, his administration of labor legislation on labor protection and labor contract, and thereby observance of the employee's right to work and labor protection;
allows you to compensate not only material, but also moral harm caused to the employee.

In accordance with Art. 21 of the Labor Code of the Russian Federation, among the main duties of the employee, the obligation to take care of the property of the employer and other employees is established. According to Art. 22 of the Labor Code of the Russian Federation, the main obligation of the employer is the obligation to compensate for harm caused to employees in connection with the performance of their labor duties, as well as to compensate for moral damage.

In addition, relations on compensation for harm caused to the life and health of employees in connection with the performance of their labor duties are governed by the norms of civil legislation (Art. 1084-1094 of the Civil Code of the Russian Federation).

An employment contract or agreements concluded in writing attached to it may specify the material responsibility of the parties to this contract. A special written agreement is, first of all, an agreement on the full liability of the employee for damage caused to the employer. Can be specified:

objects or values to which the employee is directly related in the labor process;
the employer's obligations to create conditions for the employee for the safety of items, valuables;
ensuring the safety of the employee's property transferred to the employer, etc.

The contractual responsibility of the employer to the employee cannot be lower, and the employee to the employer - higher than that provided by law (Article 232 of the Labor Code of the Russian Federation).

Termination of an employment contract after causing damage does not entail the release of the contracting party from material liability provided for by labor legislation. In this case, the issue of compensation is decided by agreement of the parties or by a court (Article 232 of the Labor Code of the Russian Federation).

The requirements of labor legislation on the material responsibility of the parties to an employment contract apply to them regardless of the type of property, organizational and legal form of the employer, his departmental subordination, as well as the fact whether the employer is legal or natural person, unless otherwise provided for the indicated reasons.

In accordance with Art. 233 of the Labor Code of the Russian Federation, the material liability of a party to an employment contract occurs for damage caused by it to the other party to the contract as a result of its guilty illegal behavior (actions or inaction), unless otherwise provided by law.

Each of the parties to the employment contract is obliged to prove the amount of damage caused to it, as well as the fault of the inflictor of damage and the causal relationship between the behavior of the inflictor of damage and the consequences that have occurred.

In certain cases, the inflictor of damage must prove his innocence (for example, an employee who has entered into an agreement on full liability).

Material liability of the employer

If the employer violates the established deadline, respectively, the payment of wages, vacation pay, payments upon dismissal and (or) other payments due to the employee, the employer is obliged to pay them with payment of interest (monetary compensation) in the amount of not less than 1/150 of the key rate in force at that time The Central Bank of the Russian Federation from amounts not paid on time for each day of delay, starting from the next day after the due date for payment to the day of actual settlement, inclusive. In case of incomplete payment of wages and (or) other payments due to the employee on time, the amount of interest (monetary compensation) is calculated from the amounts actually not paid on time. Amount of monetary compensation paid to the employee can be upgraded collective agreement, local regulation or an employment contract. The obligation to pay the specified monetary compensation arises regardless of the presence of guilt employer.

Moral harm caused to the employee by unlawful actions or inaction of the employer is compensated to the employee in cash in the amount determined by agreement of the parties to the employment contract. Moral injury- this is the physical and mental suffering (Article 151 of the Civil Code of the Russian Federation) of the victim of an accident (or his family in the event of the death of an employee). If the employer did not satisfy (or the employee believes that he did not fully satisfy) the employee's claim for compensation for moral damage, then the employee can go to court, which determines the amount of compensation for moral damage.

In the event of a dispute, the fact of inflicting moral harm on the employee and the amount of his compensation shall be determined by the court, regardless of the property damage subject to compensation.

The employer compensates for the harm to the employee, hazardous, in full, if it does not prove that the harm was caused as a result of force majeure or an employee, i.e. when and without his fault, responsibility is possible. Without fault, the employer - the owner of the aircraft is liable to the crew members, if he does not prove the intent of the victim. In other cases, the employer can be exempted from compensation for harm if he proves that the harm was caused through no fault of his. The employer's fault will always be if the work injury occurred from failure to provide them with healthy and safe environment labor. Proofs of his guilt can be both documents and testimonies of witnesses (an accident report, in which his guilt is indicated, a conclusion technical inspector or other officials, medical report, court decision or verdict, etc.).

Labor injury as damage to the health of an employee associated with the performance of his job duties can occur both on the territory of production and outside it (if staying there in work time does not contradict the internal labor regulations). For example, in a factory canteen, a worker was poisoned at lunchtime. As a rule, the cause of work injury is a violation of safety measures (for example, a faulty power saw injured an employee's hand or an employee broke his leg due to an uneven floor surface in the workshop).

Occupational Illness does not arise suddenly (rarely in emergency cases, possibly from a one-time source of danger), but gradually, as a result of unfavorable external working conditions in a given profession (excess smoke, gas pollution, radiation, etc.) and as a result of lack of adequate sanitary and hygienic working conditions. Therefore, an occupational disease is always considered to be associated with the fault of the employer (there are lists of occupational diseases that the medical authorities are guided by when establishing the cause of the disease).

Possible mixed liability with mixed fault, when the employee is also to blame for grossly violating the instructions for labor protection. In case of mixed guilt, most of the guilt (up to 70%) is assigned to the employer, who compensates for the damage through the Fund of Compulsory Social Insurance against Industrial Accidents, i.e. the insurer to whom the victim addresses his application. But mixed liability does not apply to additional species compensation for harm and a lump sum, as well as the death of the breadwinner.

The following types of compensation for harm to an employee in connection with damage to his health are possible:

reimbursement of lost earnings (or part of it) depending on the degree of loss of professional ability to work, i.e. ability to constantly work in their profession;
reimbursement of additional costs in connection with work injury;
lump-sum benefit in connection with work injury;
compensation for moral damage.

The specified types of compensation for harm to the employee, except for moral, are made not by employers from their own funds, but by the Social Insurance Fund, to which employers contribute insurance premiums for the workers. And therefore, the very compensation for harm went to the branch of law. social security, since the employee (victim) applies for compensation to this Fund and only by order of this Fund, the employer can pay these amounts on account of the contributions due from him. But the employer compensates for moral damage in accordance with the specified Law from his own funds.