Financial liability of the employee for the damage inflicted on the company

Grounds for liability

Employees are liable for harm caused by their failure to perform their duties. For the onset of liability requires a set of circumstances:

• violation of job duties
• direct actual damage inflicted
• guilty, wrongful acts or inaction
• causal relationship between employee actions and harm

These grounds are complementary, so the responsibility for the absence without at least one of them is impossible. At the same time, it does not matter – the employee was brought to another type of responsibility – the existence of the above reasons is enough.

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Damage types

In the resolution of the Plenum of the Supreme Specialized Court of Ukraine No. 12 of December 11, 2015 analyzes the practice of compensation for harm by an employee. In this act, in particular, it is determined what exactly constitutes direct actual damage. All cases can be divided into the following categories:

• damage related to material values (destruction, loss, damage, shortage, damage to material values)
• damage related to extra costs (illegal payments under civil contracts, payments to the state budget; illegal payments to employees; payments to third parties related to damages).
• damage associated with non-return of expenses or debt (impossibility of recovering of value of material assets from the supplier (if they were transferred with a shortage) of non-collection of receivables from debtors by admission the limitation period; non-recovery from debtors of damage caused by them).
• offtake below, then set, by prices

Types and methods of bringing in to responsibility

There are two methods of damage recovery:

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• by the direction of the employer
• on the basis of the court decreet

If the offenses are done directly to the enterprise, and the employee will be liable for it within the average monthly salary, then compensation is carried out by withholding the amount of damage from the employee’s salary (no more than 20% from one salary). In other cases, the damage caused is recovered by court order. If the damage is caused to third parties, the judicial method of protection is also applied – a claim for damages by way of recourse.

As for the types of responsibility, Labour law of Ukraine gives such ones:

• limited – within the monthly salary
• full
• increased responsibility
• collective responsibility of workers who jointly perform certain jobs

Cases of full and increased liability are established by law. In particular, a resolution of the State Labor Committee of the USSR Council of Ministers approved a list of workers who are allowed to conclude an agreement on full responsibility.

Court practice

Evidence of employee guilt is mandatory, and the employer must provide conditions for the preservation of property. Kanivskiy district Court of Cherkasy region in case No.697/2755/17 refused to satisfy the claim of the Private Joint Stock Company to an employee who worked as a mechanic and mechanic for repair and received material values ​​under one-time powers of attorney. In the statement of claim, the employer argued that since there was an agreement on full liability, the employee should be responsible for the shortage identified during the inventory. However, the content of the official functions of the employee did not provide for the obligation to keep the property. Some of the evidence provided by the employer is contradictory and deemed unreliable, while other evidence does not contain enough specific information that would prove the plaintiff’s correctness. In addition, it has been established that the employer has not created proper conditions for the storage of property. As a result, the court concluded that if the owner did not fulfill the obligation to create conditions for the employee and if there is no fault of the employee, the latter cannot be held responsible.

There is also the practice of collecting funds that are unreasonably received as bonuses and surcharges. For example, Dzerzhinsky district court of Kharkiv city in case No.638/12192/16-c sought from the defendant, the former director of a state enterprise, already paid extra charges. The court found out that the contract contained a condition on non-payment to the director of the bonus in case of wage arrears to the employees. Considering that there was a debt to employees, the court is in violation of the terms of the contract by the director, and the extra charges accrued are illegal.

Compensation for recourse is sometimes also an effective tool. In this case, firstly the employer pays the third parties, and then collects the damages from the employee. In case No. 380/1285/18, the employer filed a claim for recovery of damages from the employee in recourse. An employee — a tractor driver — during the treatment of plantings, accidentally drove into neighboring areas belonging to another owner. As a result of spraying, all plantations of sunflowers were destroyed. The employer received a claim and indemnified for the damage caused by the employee, and only then the number of payments from the employee was collected through the court. In another case (case No. 468/1497/17-ts), by a court decision, the damage caused to a third party was tightened in the same manner as a result of causing an accident by the driver during the performance of his job duties.

Tips for the employers

In order to most effectively protect the employer of their interests from property losses in connection with the actions of employees, the employer should adhere to the following tips:

• forming the staff list, select for certain categories of employees (those responsible for material values) positions that will allow to conclude an agreement on full liability
• conclude such a contract in all permitted cases
• define in detail all the duties of the employee in the job description
• if a shortage is detected, an inventory should be taken without delay (on the day the shortage is detected in the presence of the responsible person)