What is the employer responsible for? Block diagram of terms
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 proportions. The most common case is the non-use of CCP by the seller when selling goods (works or services). What other cases of employer liability are found in practice? Can such liability be minimized or avoided? The answers to these and other questions are in our article.
When and why does responsibility come?
The responsibility of the employer 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 the 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 litigation, the defendant in such cases is the subject of liability (employer), and the employee - as a direct tortfeasor - is involved as a third party.
Please note: the employer will be liable even if at the time of causing harm to a third party, he did not have a contractual relationship with the person he attracted to perform the work.
So, in one case, the plaintiff's argument that the seller who sold the goods without the use of cash registers has nothing to do with an 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 the conclusion of a labor agreement. The fact of admission to work in point of sale established by the court and confirmed by the case materials ( Decree of the FAS MO dated 10/14/1998 N KA-A40 / 2509-98).
The court considered another similar case.
During the inspection, the inspectors found that when providing the service for soldering the chain, the jeweler did not use the CCP, did not issue a check or a strict reporting form. This violation was recorded by the auditors in the act of inspection and the protocol on an administrative offense. Based on the results of consideration of the audit materials, the tax inspectorate issued a decision to hold the employer's company liable under Art. 14.5 of the Code of Administrative Offenses of the Russian Federation in the form of 30 thousand rubles. fine.
In the cassation complaint, the firm indicated that at the time of the check, the jeweler was not its employee. But the court rejected these arguments on the following grounds. During the inspection, the jeweler directly provided the service of soldering the chain to 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 registration employment contract in writing, the contract is considered concluded (Article 67 of the Labor Code of the Russian Federation). Therefore, the courts came to the conclusion that the jeweler was an employee of the company (resolution of the SKO dated 21.04.2008 N F08-1936 / 2008-704A).
The employer is responsible for the actions of the employee, even if the harm was caused on a non-working day (of course, if the person performed work duties on that day). Voskhod LLC filed a lawsuit against UM-6 LLC to recover damages caused by the actions of the UM-6 driver during loading and unloading operations using a truck crane belonging to the defendant. At the court session, 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 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 denied to the plaintiff and the counter was satisfied. By the decision of the FAS SZO dated November 21, 2003 N A56-31151/02, the decision and the decision 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 UM-6 LLC and, on his instructions, performed work at Voskhod LLC. The fact that it was a day off is not of decisive importance, since in this case the employee performed the labor function.
In addition to the conditions listed above, the company (entrepreneur) will be liable for the actions of its employee only if the offense is established (Chapter 59 of the Civil Code of the Russian Federation). It includes:
- the occurrence of harm, its nature and size;
- wrongfulness of the behavior of the tortfeasor;
- causal relationship between the first two elements;
- the fault of the perpetrator.
The court may refuse to satisfy the applicant's claims if the totality of the listed conditions is not proven. For example, if there is no evidence of a causal relationship between the actions of an employee and the consequences that have occurred, there are no grounds for recovering losses from the employer's organization. Such conclusions follow from the decision of the FAS SKO dated 02.11.2005 N Ф08-5099/05. The essence of the matter is this. The driver - an employee of the company damaged the gates of the plant with a KamAZ car. The plant filed a lawsuit against the company for damages. At the court session, the plaintiff did not present evidence showing that the gates were out of order precisely as a result of a KamAZ car hitting them. As a result, no damages were recovered from the employer.
Similar examples of court decisions can be found in the resolutions of the FAS DO dated 06/23/2008 N F03-A73 / 08-1/1660, dated 02/27/2008 N F03-A73 / 07-1 / 6465; FAS VVO dated 02.05.2007 N A38-3004-18 / 238-2006; determination of the Supreme Arbitration Court of the Russian Federation of 08.05.2007 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 who caused the harm does not matter, since the employer is responsible for his actions. At the same time, the employer who has compensated the harm to a third party has the right to transfer 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 where an employer is liable for an employee's actions are non-use of CCPs and traffic accidents. Therefore, we will dwell on them in more detail.
Non-use of CCP
As you know, organizations and individual entrepreneurs that accept cash and payment bank cards as payment for their goods (works, services) are required to use cash registers (Article 2 of the Federal Law of May 22, 2003 N 54-FZ "On the Application cash register equipment when making cash settlements and (or) settlements using payment cards", hereinafter referred to as the Law on CCP).
The obligation of cashiers-operators or sellers to use cash registers is not established by the Law on cash registers. This obligation is assigned to them on the basis of an employment contract.
Having revealed the fact of non-use of the CCP, the tax authorities draw up a protocol on an administrative offense and issue a decision to bring the perpetrator to justice. The amount of penalties under this article is:
for citizens (cashier-operator) - from 1500 to 2000 rubles;
for officials (entrepreneurs, see note to article 2.4 of the Code of Administrative Offenses of the Russian Federation) - from 3,000 to 4,000 rubles;
for legal entities- from 30,000 to 40,000 rubles. The specific amount of the fine is determined by the controllers. Having fined the firm, auditors can also hold its employee accountable.
The right to punish non-compliance cash register(under 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 cash registers says that tax structures "carry out checks on the issuance of cash receipts by organizations and individual entrepreneurs." That is, failure to issue a check to the buyer is the non-use of cash registers.
In addition, according to the decision of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 31, 2003 N 16 under the non-application cash register understood:
- use of cars that are not registered with the tax authorities;
- use of a car not included in the State Register;
- use of cash register 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;
- breaking through the KKM check indicating the amount less than that paid by the buyer (client).
Practice shows that in this situation, the employer-organization is always responsible for the actions of its employee (decisions of the Supreme Arbitration Court of the Russian Federation dated 06/28/2005 N 480/05; FAS MO dated 04/14/2008 N KA-A41 / 2550-08; FAS SKO dated 06/04/2008 N F08-3017/08; FAS TsO dated 06/26/2008 N A62-4372 / 2007, dated 06/26/2008 N A68-10134 / 07-2/8 etc.).
The arbitrators emphasize that all trading activities carried out 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 ruling of 08.11.2007 N 8467/07: "non-use by a legal entity of CCP due to improper performance job duties its employee is not a circumstance that relieves the legal entity itself from administrative liability under Art. 14.5 of the Code of Administrative Offenses of the Russian Federation".
Thus, the guilt 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 provides some loophole for employers-organizations. Let us turn to paragraph 2 of Art. 2.1 of the Code of Administrative Offenses 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 measures depending on him to comply with them (rules and norms - Ed.)." It turns out that if it turns out that all possible measures have been taken, liability can be avoided. However, in practice, it is almost impossible to prove this.
The cashier of the company did not break through cash receipt. Having considered the company's claim against the inspectorate that had fined it, the court of appeal indicated that the company's fault was in committing an offense under Art. 14.5 of the Code of Administrative Offenses of the Russian Federation, absent.
After all, the company has taken all the necessary measures to ensure that the seller-cashier complies with the Law on CCP. Namely: at the point of sale there was a serviceable cash register registered in the tax office; the seller at the conclusion of the employment contract was acquainted with job description, where it is indicated that the seller must perform cash settlements with the population only using cash registers. However, FAS ZSO ( Decree of the FAS ZSO of 01.11.2007 N F04-7158 / 2007 (39850-A45-3)) sided with 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 a CCP ... 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 resolutions of the FAS ZSO dated July 3, 2008 N F04-4071 / 2008 (7598-A46-32), dated March 27, 2008 N F04-2148 / 2008 (2927-A27-32). Another thing - individual entrepreneurs. The responsibility of the PBOYuL (Article 2.2 of the Code of Administrative Offenses of the Russian Federation) will come only if it is proved that he is guilty (intent or negligence). Thus, the entrepreneur-employer will be liable if it is established that he did not ensure the implementation of the rules for the use of cash register equipment by a specific employee acting on his behalf when settling with buyers.
Arbitration practice is replete with examples when the courts released entrepreneurs from liability for non-use of CCPs if the PBOYuL managed to prove that they were not guilty (decrees of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 22, 2007 N 16234/06; FAS UO dated July 15, 2008 N F09-4992 / 08 - C1, dated 03/25/2008 N F09-1842 / 08-S1; FAS TsO dated 01/17/2008 N A64-2541 / 07-15, dated 14.01.2008 N A64-2540 / 07-15; FAS DO dated 07/21/2004 N F03-A73 / 04-2 / 1684, etc.).
Here is one of those examples.
The store owned by the entrepreneur had a registered tax office KKM, an employment contract and an agreement on full liability, the seller was familiar with the job description.
Under such circumstances, the courts came to the conclusion that the inspection did not prove the guilt of the entrepreneur. As a result, the FAS MA released the latter from liability ( Decree of the FAS UO dated 03/25/2008 N Ф09-1842 / 08-С1).
If liability for non-use of CCP cannot be avoided, then it can be mitigated. The grounds for mitigation of liability are listed in Part 1 of Art. 4.2 of the Code of Administrative Offenses of the Russian Federation. In addition, the arbitration court may recognize extenuating circumstances that are 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 ( Decree of the FAS SZO dated 07.05.2007 N A56-11958 / 2006).
Other mitigating circumstances taken into account by both judges and tax authorities include: the unintentional nature of the actions of the seller, the short duration of his stay at work, as well as the low amount of income from entrepreneurial activity(Resolutions of the FAS UO of 09.07.2007 N F09-5099/07-S1; FAS SKO of 26.12.2007 N F08-8536/07-3211A).
Moreover, the court may recognize these circumstances as mitigating ones, regardless of whether the applicant requested that they be taken into account at the stage of consideration of the case by an 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 of the Code of Administrative Offenses. If the controllers set the minimum amount of the fine, then the court will have no reason to reduce it ( Decree of the FAS SKO dated 06/28/2005 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 be limited to only a verbal remark. 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 July 30, 2008 N A52-529 / 2008; FAS TsO of 19.06.2008 N A09-8008/07-22; FAS VVO dated 11.06.2008 N A11-11130/2007-K2-28/105/17). At the same time, a 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 May 17, 2005 N 391/05).
Accident involving a company employee
Consider another category of cases - when a company is held liable for the actions of an employee during an accident. The party injured in an accident files a lawsuit in court if the tortfeasor refuses to compensate for the damage on a voluntary basis. The plaintiff establishes the amount of harm caused on his own, otherwise the court will refuse his claim (). Moreover, the employer compensates for the damage even if the employee caused harm to a third party by accident (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, namely the owners of sources heightened 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 liable for an accident committed by an employee, if it is she who owns the car ( Decree of the FAS SZO dated 06/17/2008 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 acting on behalf of the tenant. An example of such a court decision is. The court partially recovered from CJSC the damage caused to the entrepreneur in an accident, indicating that it was the CJSC that was considered liable for losses in the entrepreneur's property. The latter acted as a lessor under a vehicle rental agreement with a crew, on the basis of which the vehicle was leased to LLC. However, the gross negligence of the entrepreneur himself, which contributed to the increase in damage, 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. IN Decree of the Federal Antimonopoly Service of the Central Organ of November 30, 2007 N A36-1030 / 2006 there is such a wording: "Since CJSC "A" did not provide the court with evidence indicating 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 legitimacy of the plaintiff's claim."
In this case, the plaintiff just demanded that ZAO pay damages. This means that if the firm provided 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;
- causal relationship between the harm that has occurred 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. Evidence objectively confirming that in the declared period of time the impossibility of the movement of trolleybuses was due to the specified accident was absent in the case. Therefore, the Court of Appeal refused to satisfy the claims filed by the plaintiff for the recovery of losses caused by the demurrage of trolleybuses as a result of an accident that occurred through the fault of the driver of the respondent company ( Decree of the FAS UO dated 04.24.2008 N F09-2652 / 08-C4).
The owner of a source of increased danger may be released by the court from liability in whole or in part (clauses 2 and 3 of article 1083 of the Civil Code of the Russian Federation), if it is proved that the gross negligence of the plaintiff himself led to the accident.
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 the gross negligence of the plaintiff himself, which was expressed in the violation by the driver of the Traffic Rules of the Russian Federation. 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 subject to compensation to the victim by 50% ( Decree 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 agreement, then the damage to victims - third parties will be paid Insurance Company. But this does not exclude the repayment of damage by the organization - the owner of the vehicle. In the event that the insurance indemnity 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 ( Decree of the FAS MO dated 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 intent of the driver to cause harm to the life or health of the victim;
- harm was caused while driving vehicle in a state of alcoholic or drug intoxication;
- the driver was deprived of a driver's license;
- the driver fled the scene of the accident;
- the driver was not included in the OSAGO agreement as a person authorized to drive the vehicle;
- the insured event occurred when using the car in a period not provided for by the compulsory insurance contract.
Let's take 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 intoxication, also fled the scene of an accident, filed a lawsuit with the arbitration court against the insured organization, the owner of the car. This fact was not disputed by the defendant, therefore the court decided to impose the obligation to compensate for the damage caused as a result of an accident on the defendant as an employer owning the vehicle on the right of ownership ( resolutions of the Federal Antimonopoly Service of the Central Organ of December 5, 2007 N A62-273 / 2007, of November 30, 2007 N A36-1030 / 2006).
_______________
1 Labor Code RF dated December 30, 2001 N 197-FZ, this code was declared invalid from February 1, 2002. A similar provision is contained in Art. 67 of the Labor Code of the Russian Federation.
Journal "Arbitration Justice in Russia" N 10/2008, E.A. SHELENKOVA, practicing lawyer, specialist in tax and administrative law; S.N. SHELENKOV, head of the legal group of CJSC KG "Econ-Profi"
All citizens must obey the law. This rule also applies to labor relations. The protection of his interests is guaranteed to the employee by law. What responsibility exists for the employer for non-compliance with the Labor Code of the Russian Federation?
Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:
APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.
It's fast and IS FREE!
Observance of the rights of working citizens in Russia is under strict supervision by the state.
Those responsible for non-compliance are liable. Various measures may apply. What is the responsibility of an employer who violates labor laws?
General aspects
Administrative liability occurs in the event of:
- violations of the law in the field of labor and labor protection;
- refusal to conclude collective agreement;
- concealment of information necessary to control the implementation of the collective agreement;
- illegal involvement in labor activity;
- concealment of an insured event;
- other violations of labor legislation relating to the registration of legal relations and the execution of contracts.
Criminal liability is provided for especially serious violations with serious consequences.
So such violations include:
The nuance of the emergence of criminal liability is that the law does not define a list of grave consequences that may arise due to delayed payments.
The causal relationship and the severity of the offense is determined by the court. Moreover, it is required to prove the guilt of the employer.
As for vacation
These misconducts become the basis for the imposition of administrative responsibility for.
In a situation of termination of the contract and dismissal, the employee must receive compensation for the available unused vacation.
Moreover, payments are made on the day of dismissal or no later than the next day when the employee requested the calculation.
For the issuance of an incomplete amount, the same liability is imposed as for the non-payment of amounts in full.
What are the actions of the employee
In case of violation of rights, the employee has the right to apply to a state body, in particular, a complaint can be filed with:
- prosecutor's office;
When applying to labor inspection the appeal indicates the fact of violation of rights and a request for an answer on the results and measures taken.
If defects are identified, the inspection issues an order to eliminate violations. In the case of filing an application with the prosecutor's office, a check will be organized upon the fact of the appeal.
Video: fines for violation of labor laws
Based on its results, a presentation is made on the elimination of identified violations. Appeal to the courts is the most effective means of protecting rights.
The employee files a claim for violation of labor law requirements, attaching evidence of work in the organization and violation of rights.
Punishment for violation of the Labor Code of the Russian Federation
In the event that an employer who is guilty of violating labor legislation is brought to administrative responsibility, the provisions established by Article 5.27 of the Code of Administrative Offenses of the Russian Federation are applied.
The prescribed fine is imposed in the following variable amount:
In the case of a second commission of an identical offense, a more severe punishment and the imposition of an increased amount of a fine are provided:
| Official/IP | 10,000-20,000 rubles or disqualification for a period of 1-3 years for executives | ||||||||||||||||||||||||||||||||||
| Organization |
|
The procedure for bringing an employee to liability |
|
Establishing the amount of damage caused |
|
Carrying out an audit to determine the causes of damage |
|
Requiring a written explanation from the employee |
|
Obtaining the conclusion of the commission on the results of the audit on the causes of damage |
|
Issuing an order to hold liable or going to court |
Note that disciplinary and material liability measures can be applied to an employee at the same time. For example, an employee appeared at work in a state of intoxication, rowdy, as a result, dropped the laptop from the desktop and it crashed. In such a situation, the employer has the right:
- apply disciplinary measures up to and including dismissal (clause “b”, clause 6, part 1, article 81 of the Labor Code of the Russian Federation);
- apply liability measures and recover the cost of a broken laptop.
This responsibility is established only for foreign citizens who may illegally carry out labor activities in our country. According to Art. 18.10 of the Code of Administrative Offenses of the Russian Federation for such citizens provides for fines and expulsion from Russian Federation.
Employer's responsibility.
Article 362 of the Labor Code of the Russian Federation determines that the heads and other officials of organizations guilty of violating labor laws are liable in the cases and in the manner established by the Labor Code and other federal laws. However, not only named persons can be held accountable - the organization can also be punished for violations. Let's look at who is responsible for what.
Material liability.
According to Art. 232 of the Labor Code of the Russian Federation, a party to an employment contract (employer or employee) that has caused damage to the other party is obliged to compensate for this damage in accordance with the Labor Code of the Russian Federation and other federal laws. And first of all, the employer is responsible for the damage caused to the property of the employee (Article 235 of the Labor Code of the Russian Federation).
For your information:
By virtue of Art. 235 of the Labor Code of the Russian Federation, an employer who has caused damage to an employee's property shall reimburse it in full. The amount of damage is calculated at market prices in force in the given area on the day of its compensation. In the event of damage, the employee must apply to the employer with a written application, the latter is obliged to consider it and make an appropriate decision within 10 days from the date of receipt of the application.
And the employer says:
1. For damage caused to an employee as a result of illegal deprivation of the opportunity to work (Article 234 of the Labor Code of the Russian Federation). The obligation to pay unearned earnings arises if earnings are not received as a result of:
- illegal suspension from work, dismissal or transfer to another job (Articles 72, 73, 76, 394 of the Labor Code of the Russian Federation);
- the employer's refusal to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee in his previous job (Article 396 of the Labor Code of the Russian Federation);
- delays by the employer in issuing a work book to an employee, entering into the work book an incorrect or inconsistent wording of the reason for dismissal of an employee (Articles 84.1, 394 of the Labor Code of the Russian Federation).
2. For causing moral harm (Article 237 of the Labor Code of the Russian Federation). According to Art. 151 of the Civil Code of the Russian Federation, moral harm is the physical or moral suffering of a citizen caused to him by actions that violate his personal non-property rights or encroach on other non-material benefits belonging to him. Compensation is carried out in cash in the amount determined by the agreement of the parties to the employment contract. If the amount of compensation is not regulated by an agreement between the employee and the employer, the damage is assessed by the employee himself, and the court sets the specific amount.
3. For the delay in the payment of earnings and other payments due to the employee (Article 236 of the Labor Code of the Russian Federation). Here we will dwell in more detail, since most recently the legislation in this area has been adjusted:
- salary. According to the changes that entered into force on 03.10.2016, Part 6 of Art. 136 of the Labor Code of the Russian Federation now sounds like this: “wages are paid at least every half a month. The specific date for the payment of wages is established by the internal labor regulations, the collective agreement or the employment contract no later than 15 calendar days from the end of the period for which it is accrued. Previously, the wording was somewhat different and obliged employers to pay salaries twice a month;
- holiday pay. By virtue of Part 9 of Art. 136 of the Labor Code of the Russian Federation, payment for vacation is made no later than three days before it starts;
- dismissal payments. As a general rule, Art. 140 of the Labor Code of the Russian Federation payments, due to the employee upon dismissal, are carried out on the day of dismissal, and if the employee is absent on this day, then the calculation is made no later than the next day after the employee submits the corresponding request.
So, for violation of the terms of payment of the amounts due to the employee, the employer is obliged to pay them with interest - monetary compensation. According to the changes in Art. 236 of the Labor Code of the Russian Federation, the amount of this compensation has been increased and amounts to 1/150 (previously - 1/300) of the key rate of the Central Bank of the Russian Federation in force at that time from the amounts not paid on time for each day of delay starting from the next day after the due date of payment until the day of actual settlement inclusive .
Now, instead of the refinancing rate, interest is calculated from the key rate. It currently stands at 10%.
Law No. 272-FZ also introduced liability for partial payment of amounts due to an employee: the amount of interest (monetary compensation) is calculated from the amounts actually not paid on time (Article 236 of the Labor Code of the Russian Federation).
Remember that the obligation to pay monetary compensation for violation of the payment deadline arises regardless of whether the employer is at fault.
Administrative responsibility.
This type of liability is established by the Code of Administrative Offenses of the Russian Federation. First of all, let's say that such liability arises for the commission of an administrative offense.
For your information:
An administrative offense is an unlawful guilty action (inaction) of an individual or legal entity, for which the Code of Administrative Offenses of the Russian Federation or the laws of the constituent entities of the Russian Federation on administrative offenses establish administrative responsibility (Article 2.1 of the Code of Administrative Offenses of the Russian Federation).
The employer is found guilty of committing an administrative offense if it is revealed that he had the opportunity to comply with the rules and regulations, but he did not take all measures in his power to comply with them.
Administrative punishment for violation of labor legislation may follow within a year from the moment the administrative offense was committed (Article 4.5 of the Code of Administrative Offenses of the Russian Federation).
The range of violations of labor legislation for which the Code of Administrative Offenses of the Russian Federation provides for penalties is quite wide (in the table we present violations under Article 5.27 of the Code of Administrative Offenses of the Russian Federation and the penalties for them).
|
Part No. Art. 5.27 of the Code of Administrative Offenses of the Russian Federation |
Violation |
Sanction |
|
Violation of labor legislation and other regulatory legal acts, unless otherwise provided by Parts 3, 4 and 6 of Art. 5.27 and Art. 5.27.1 Administrative Code of the Russian Federation |
For officials - a warning or a fine in the amount of 1,000 to 5,000 rubles, for legal entities - a fine from 30,000 to 50,000 rubles. |
|
|
The commission of an administrative offense, under Part. 1 Article. 5.27 of the Code of Administrative Offenses of the Russian Federation, by a person previously punished for a similar offense |
For officials - a fine in the amount of 10,000 to 20,000 rubles. or disqualification for a period of one to three years, for legal entities - a fine of 50,000 to 70,000 rubles. |
|
|
Actual admission to work by an unauthorized person |
For officials - a fine from 10,000 to 20,000 rubles. |
|
|
Evasion from drawing up an employment contract or the conclusion of a civil law contract that actually regulates labor relations |
For officials - a fine in the amount of 10,000 to 20,000 rubles, for legal entities - a fine from 50,000 to 100,000 rubles. |
|
|
The commission of administrative offenses under Parts 3 and 4 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, by a person previously subjected to administrative punishment for a similar offense |
For officials - disqualification for a period of one to three years, for legal entities - a fine of 100,000 to 200,000 rubles. |
|
|
Non-payment or incomplete payment of wages, other payments made within the framework of labor relations, or the establishment of wages in the amount of less than the minimum wage |
For officials - a warning or a fine in the amount of 10,000 to 20,000 rubles, for legal entities - a fine from 30,000 to 50,000 rubles. |
|
|
Repeated delay in payments to an employee, if these actions do not contain a criminal offense |
For officials - a fine in the amount of 20,000 to 30,000 rubles. or disqualification for a period of one to three years |
Article 5.27.1 of the Code of Administrative Offenses of the Russian Federation provides for administrative liability for violation of labor protection requirements in an organization. Fines here are more serious - up to 200,000 rubles. For example, violation by the employer of the established procedure for conducting special evaluation working conditions in the workplace or its failure to carry out may cost the organization a fine of 60,000 to 80,000 rubles. And the admission of an employee to the performance of his labor duties without undergoing training and testing knowledge of labor protection requirements, as well as without mandatory medical examinations- a fine of up to 130,000 rubles.
Of course, these are not all violations, but they are the most common. There is also responsibility for violating the rules and regulations:
1. Conducting collective negotiations on the conclusion of a collective agreement and non-fulfillment of obligations under them (Articles 5.28 - 5.31, 5.33 of the Code of Administrative Offenses of the Russian Federation).
2. Settlement of collective labor disputes (Articles 5.32, 5.34 of the Code of Administrative Offenses of the Russian Federation).
3. In the field of employment of disabled people (Article 5.42 of the Code of Administrative Offenses of the Russian Federation).
4. On recruiting a foreign citizen or stateless person to work in Russia (Articles 18.9, 18.15 - 18.17, 18.19 of the Code of Administrative Offenses of the Russian Federation).
5. On recruiting a state or municipal employee or a former state or municipal employee to work or to perform work or provide services (Article 19.29 of the Code of Administrative Offenses of the Russian Federation).
Administrative offenses in the field of attracting foreigners to work will cost employers the most - fines for them reach 1,000,000 rubles.
It should be noted that violations of labor legislation are mainly detected by state labor inspectors or other bodies of state and municipal control. They carry out control and supervision activities in accordance with the annual plan of inspections or on complaints from employees. But the regulatory authorities do not always immediately impose a fine: they can issue a binding order to eliminate the violations identified during the audit. But if the employer does not comply with such an order, then it is already possible to apply measures of administrative responsibility for h. 1, 23 Art. 19.5 of the Code of Administrative Offenses of the Russian Federation.
Criminal liability.
Unfortunately, there are employers who maliciously violate the requirements of labor legislation. Neither the instructions of the regulatory authorities, nor the administrative fines apply to them - they continue to ignore the Labor Code of the Russian Federation. These employers are subject to criminal liability.
The principles of criminal liability and the procedure for applying appropriate measures are defined by the Criminal Code of the Russian Federation.
Criminal liability comes only for crimes - a guilty socially dangerous act prohibited by the Criminal Code of the Russian Federation under the threat of punishment (Article 14 of the Criminal Code of the Russian Federation).
This type of liability has one feature - it can only be applied to to an individual(Article 19 of the Criminal Code of the Russian Federation). And this means that the head of the organization or other official who committed the crime will have to answer according to the law, but not the organization.
Note that with regards to labor relations in the Criminal Code of the Russian Federation there are not so many rules - only four:
1. Article 136. We know that Art. 3 of the Labor Code of the Russian Federation prohibits discrimination in the sphere of labor - no one can be limited in labor rights and freedoms or receive any advantages depending on gender, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence, as well as other circumstances not related to business qualities worker. If it is found that executive organization-employer still violated this prohibition, criminal penalties may be applied to him:
- a fine from 100,000 to 300,000 rubles. or in the amount of wages or other income of the convicted person for a period of one to two years;
- deprivation of the right to hold certain positions or engage in certain activities for up to five years;
- Compulsory labor (up to 480 hours) or corrective labor (up to 2 years) or forced labor (up to 5 years);
- imprisonment up to 5 years.
2. Article 143 - violation of labor protection requirements. It is the employer who has the responsibility to ensure safe conditions and labor protection (Article 212 of the Labor Code of the Russian Federation). Criminal liability for violation of labor protection requirements depends on what consequences they entailed.
Plenum of the Armed Forces of the Russian Federation in Resolution No. 1 dated April 23, 1991 "On judicial practice on cases of violations of the rules of labor protection and safety in the conduct of mining, construction or other work” drew attention to the fact that liability under Art. 143 of the Criminal Code of the Russian Federation may be borne by persons on whom, by virtue of their official position or under a special order, the obligation is directly imposed to ensure compliance with the rules and norms of labor protection in a certain area of work, as well as the heads of enterprises and organizations, their deputies, chief engineers, chief specialists of enterprises, if they have not taken measures to eliminate the violation of labor protection rules known to them either gave instructions that were contrary to these rules, or, having taken direct control of certain types of work, did not ensure compliance with the same rules.
3. Article 145 - unjustified refusal to hire or unjustified dismissal of a pregnant woman or a woman with children under the age of three, based on pregnancy or the presence of children, is punished less severely - a fine of up to 200,000 rubles. or compulsory work for up to 360 hours.
4. Article 145.1 - non-payment of wages, pensions, scholarships, allowances and other payments. Here, the liability measures depend on what part of the amounts due was unpaid and what consequences such non-payment entailed for the employee.
The most severe punishment is provided for the heads of an organization or a branch, representative office or other separate structural unit in case of complete non-payment of more than two months of salary out of selfish or other personal interest. For this, you can get a fine of up to 500,000 rubles. or even go to jail for up to three years.
Finally:
As you can see, both employees and employers are responsible for violation of labor laws. However, there are many more grounds for holding the employer liable. And legislators are increasingly paying attention to the fight against violations of labor legislation: they introduce new grounds for offenses and crimes, and toughen the types of punishments. Therefore, think about whether everything is in order in your organization, and once again check how responsible employees perform their duties.
Federal Law No. 272-FZ dated 03.07.2016 “On Amendments to Certain Legislative Acts of the Russian Federation on Increasing the Responsibility of Employers for Violations of the Legislation Regarding Remuneration” (hereinafter - Law No. 272-FZ).
Introduction 3
1. The concept of liability of the parties to the employment contract, the grounds and conditions for its occurrence 4
2. Liability of an 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 its eternal natural necessity.
The social organization of labor, which combines material (objective) and volitional (subjective) relations, on the one hand, is influenced by technical means of labor, and on the other hand, is influenced by 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. Normative regulation is the most effective and technical way to organize numerous and diverse public relations, ensure their stability and execution, and overcome arbitrariness in relations between people.
Issues of responsibility of employees and employers are most thoroughly developed in labor law.
The subjects of labor relations are in an unequal position in relation to each other. The worker is the economically weaker side employment relationship. He is in a more dependent position on the employer than the employer on him. Such inequality of the subjects of an employment relationship causes significant differences in the legal regulation of the liability of the employer to the employee and the employee to the employer. They relate to determining the amount of damages to be compensated, the procedure and limits of compensation, the nature of the legal norms governing liability.
This paper assumes the study of the liability of the parties to the employment contract, its grounds, types, procedure for attracting and differences in the liability of the employee and the employer.
1. The concept of liability of the parties to the 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 the damage caused by illegal guilty actions to the other party in the amount and in the manner prescribed by law.
In Article 232 of the Labor Code of the Russian Federation, first of all, it is said about the obligation of a party to an employment contract to compensate for the 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 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 referred 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 liability.
An employment contract or written agreements attached to it may specify the liability of the parties to this contract. At the same time, the contractual liability of the employer to the employee cannot be lower, and the employee to the employer - higher than it is provided for by the Code or other federal laws.
This means, for example, that in a contractual manner it is impossible to impose on an employee full financial responsibility for a car, machine tool and other equipment that is serviced by him. Such liability is governed by the relevant norms 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 an employee in connection with the performance of his labor duties. This approach is in line with Art. 9 of the Labor Code of the Russian Federation, which states that it is impossible to reduce the level of rights and guarantees of employees established by labor legislation in a contractual manner. 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 imposition of an administrative penalty does not relieve a person from the performance of the obligation for which the penalty was imposed. This rule is important for the liability of the employer brought to administrative responsibility for offenses in the sphere of labor. At the same time, the Labor Code of the Russian Federation (Article 243) strengthens the liability of an employee for damage caused by a crime or administrative offense.
It seems possible to identify some general features that characterize the liability of the parties to the employment contract - the employer and the employee:
The emergence of bilateral liability due to the existence of an employment contract;
Only the parties to the contract are the subjects of liability;
Responsibility arises in case of violation of obligations under an employment contract;
Each party is only liable for culpable breaches of duty if this caused damage to the other party;
The possibility of compensation for damage on a voluntary basis.
Consider the grounds for which 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 necessary condition for liability. Since the latter is impossible without damage. Each of the parties is obliged to prove the amount of damage caused to it.
b) wrongfulness 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 assigned to the party of the employment contract by the relevant legal norms. The main duties of an employee are provided for by the Labor Code of the Russian Federation in Article 21, they may be assigned to him by the internal regulations, the employment contract, and the instructions of the employer.
c) guilt. It is possible in the form of intent, which is extremely rare in labor relations, and through negligence. Either form is sufficient to impose liability, but the amount of damages recoverable depends on whether the fault is willful or negligent.
d) Causality. It means that the damage did not occur by chance, it was the result of specific actions of one or the other party to the employment contract. Liability does not come for accidental consequences. The causal relationship is established by the court, based on the evidence presented by the parties.
Liability under labor law is 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 official role. By labor law only direct damage is subject to compensation, in civil cases, in addition to compensation for losses, lost profits are also subject to compensation.
2. Liability of an employee: concept, types, procedure for attracting
In accordance with Article 238 of the Labor Code of the Russian Federation, an employee is obliged to compensate the employer for the direct actual damage caused to him, which means a real decrease in the employer's cash property or deterioration of his condition. This property also includes the property of 3 persons, if the employer is responsible for its safety.
Also, direct damages include the costs or excess payments of the employer for the acquisition or restoration of property.
Excessive payments may be penalties paid by the employer for failure to fulfill contractual obligations with business entities. Equally, they include wages paid to an employee during his unlawful deprivation of the opportunity to work (Article 234 of the Labor Code of the Russian Federation), as well as amounts paid to an employee for delaying the payment of 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).
Unreceived income (lost profit) is not subject to recovery from the employee within the framework of labor legislation. Compensation by an employee for lost profits is possible only within the framework of civil law.
The employee is 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 the "regression approach".
The Labor Code of the Russian Federation provides for cases when an employee is released from liability, although the damage was caused:
The damage was the result of force majeure
The occurrence of damage due to normal economic risk
Damage caused due to extreme necessity or necessary defense
The damage occurred due to the employer's failure to fulfill its obligations to ensure proper storage conditions for the property entrusted to the employee.
Of particular importance is the provision excluding the material liability of the employee for damage resulting from the execution of an order or instruction. Responsibility for causing such harm lies with the person who gave the unlawful order or instruction. However, an employee who caused damage intentionally in pursuance of a knowingly illegal order or instruction is liable on a general basis.
Bringing an employee to liability is a right, not an obligation of an employee. By virtue of Art. 240 of the Labor Code of the Russian Federation, the employer has the right to fully or partially refuse to recover damages from the guilty employee.
Labor legislation provides for 2 types of liability:
1. Limited liability.
As a general rule, an employee who has caused damage to the employer's property bears limited liability - within the limits not exceeding his average monthly earnings.
The Labor Code of the Russian Federation includes an article (139) devoted to the calculation of the average wage. It says that a single 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 features 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 liability.