Voluntary compensation for damage - legal advice
Basically, it is a good solution both for the injured party and for the party through whose fault the harm was caused.
Pros and cons of voluntary compensation for damage
This method of resolving a dispute is the easiest, because the dispute is resolved in the shortest possible time.
State bodies do not participate in resolving disputes in this manner. The person who caused the damage decides to independently pay for the damage caused by his own free will.
Probably the only drawback of choosing this conflict resolution is that the parties do not turn to qualified specialists. Without it, you may make a decision that is unfavorable for you.
The decision to voluntarily compensate for damage or not can be made only when you are absolutely sure that it was your fault that the damage was caused. If you don't agree with the fact that they caused harm to property or human health, it is better to resolve such a dispute through the court.
Procedure for accepting voluntary compensation for damage
The parties reach a decision on voluntary compensation for damages unanimously. If either party does not agree, then also To resolve the conflict you need to go to court. IN judicial procedure a decision on compulsory compensation for damage will be made.
An agreement is drawn up on voluntary compensation of damage by the parties to the dispute. Such an agreement specifies:
- initials of the parties;
- residential addresses;
- the reason for which the damage is compensated;
- amount for damage;
- debt repayment terms;
- mandatory signatures of the parties.
It is much easier to determine the amount of payments for harm that caused material damage to a person than for. So, defining in the agreement the amount of payments for moral damages, it will be very difficult than if this question was decided through court.
Refusal of voluntary compensation for damages
If the party who must pay for the damage caused refuses to voluntarily compensate for damage, then the injured party files a claim in court. The amount and timing of payments will be decided in court; if during the trial, one party agrees, then a settlement can be made during the trial. In a settlement agreement, as well as in an agreement on voluntary compensation for damage, the parties themselves can decide the amount and timing of payments, but only the court will participate in this procedure.
If you find yourself in a similar situation when you are offered to enter into such an agreement, then it is better, of course, to seek help from a lawyer. The presence of lawyers on both sides is a voluntary decision, but if a specialist works with the documents, then any mistakes and incorrect consequences are excluded. A lawyer will help you draw up the correct document. So that both parties find themselves in favorable conditions. He will help carry out a special examination to determine the exact amount of damage caused so that it is neither too large nor too small.
Case No. 2-63/2011
IN THE NAME OF THE RUSSIAN FEDERATION
Komsomolsky District Court of the Khabarovsk Territory composed of: presiding judge - Judge M.A. Fetisova,
with the participation of: plaintiff - Khmeleva E.A.,
representative of the plaintiff - Kostenova A.I.,
representative of the defendant - Kupriyanova G.T.,
with the secretary of the court session - T.V. Artazey,
having considered in open court a civil case based on a claim Khmeleva E.A. To on the invalidation of an agreement on voluntary compensation for material damage to the employer, on the invalidation of a loan agreement and the return of deposited funds,
INSTALLED:
The plaintiff filed the said claim against the defendant, citing the fact that he has been working since 2009 in support of the stated claims. <данные изъяты>V . DD.MM.YYYY transported workers of Shelekhovsky KLPH CJSC from the logging station in an Iveco car <данные изъяты>to the site <данные изъяты>. DD.MM.YYYY on the road while transporting timber, the car under his control was stopped by the administration of the logging station <данные изъяты>And DD.MM.YYYY traffic police officers drew up a report for him driving a car while intoxicated. After that, he continued to work at the site until the end of his watch. Upon arrival for the next watch DD.MM.YYYY in the employer’s office premises, in <адрес>, under threat of dismissal, he signed an agreement on voluntary immediate compensation for material damage caused to the employer in the amount <данные изъяты>rub., as well as a loan agreement for the specified amount. I did not agree with the terms of the signed agreement. Did not cause any damage to the employer. Based on these documents, deductions are made from his wages. Asks to invalidate the agreement on voluntary compensation for material damage and to recover the amount paid by him <данные изъяты>rubles
During the proceedings, the plaintiff supplemented the claims with a demand to invalidate the loan agreement transaction and to recover from the defendant the amount paid by him to the defendant under the loan agreement, with interest. By making this claim, the plaintiff abandoned the initial demands for recovery from the defendant <данные изъяты>rub.
By a court ruling dated April 5, 2011, the plaintiff changed the subject of the claim. The court did not accept the plaintiff's refusal of part of the claims.
At court hearings, plaintiff Khmelev E.A. insisted on the claims, explained to the court that he had arrived on duty around DD.MM.YYYY, he did not intend to leave that day, the day of arrival for the shift is not considered a working day, so he drank alcohol. Later, workers from the site from which he was removing timber approached him and asked him to take them to the site, since there was no “shift.” His car was filled with gas, he considered that he was not intoxicated, since time had passed since he drank vodka, so he took people to the station <данные изъяты>, without receiving a waybill, since there was no dispatcher on site. Location on <данные изъяты>, in the upper warehouse, he stood for loading in the taiga, and was under loading from 01 to 02 o'clock. After loading, he stayed at the site in the car to sleep. In the morning at 09:00 he went to the lower warehouse to unload timber, but got stuck on the road because there was clay washed away by the rain on the roads. At approximately 11 o'clock they helped him leave the site. There is only one road from the upper warehouse to the lower one, there is nowhere to go along it for personal purposes. The road condition was bad and he was driving slowly. From approximately 13 to 17 o'clock, he helped lift an overturned timber truck on this logging road, after which he was stopped on the same road by employees of Shelekhovsky KLPH CJSC, who took his car keys because they smelled alcohol on him. Then the traffic police officers drew up a report against him for driving while intoxicated, and confiscated driver's license. He didn't cause an accident. He worked in DD.MM.YYYY the entire shift period, according to DD.MM.YYYY. He was not suspended from work, but under the pressure of being suspended from work, he wrote DD.MM.YYYY statement that he asks to be withheld from his salary <данные изъяты>rub. for using a timber truck for personal purposes. Without this application, they refused to issue him a waybill. At the beginning of the next watch - DD.MM.YYYY he arrived at the timber industry department, where FULL NAME1 invited him to sign documents stating that he was asking for a loan, a loan agreement, an agreement on voluntary compensation for damage. Also FULL NAME1 explained to him that if he does not sign these documents, he will be fired for being intoxicated at the workplace. He did not want to lose his job and did not want his work book to contain an entry about his dismissal on such grounds, so he was forced to sign documents on the provision of a loan and compensation for damages. These documents have already been prepared. At the same time, he was shown an order for disciplinary action for being intoxicated at work and for using a timber truck for personal purposes. DD.MM.YYYY.. Believes that psychological pressure was exerted on him, as a result of which he was forced to sign a loan agreement with enslaving conditions - 20%. He did not agree with the terms of the contract and agreement, but he needed a job, he could not quit. He agrees that the employer had grounds to fire him for being intoxicated at work. The fact that his wife has not worked since October 2010, that he has 2 minor children, he is the employer DD.MM.YYYY did not notify. Having signed the loan agreement, he did not receive the loan amount from the employer, but it was documented through the accounting department that he received the money and immediately paid it back. He did not bring money to the accounting department to repay the loan; the money was withheld from his salary. He is not working now because he quit his job. DD.MM.YYYY by at will. His wife doesn't work with DD.MM.YYYY The financial situation of his family is difficult. Asks to satisfy the claims.
The representative of the plaintiff is lawyer Kostenov A.I. explained at the court hearing that the agreement on voluntary compensation for damage does not comply with the law. The plaintiff was forced to sign loan and indemnity documents because the plaintiff had no other job. Khmelev DD.MM.YYYY and DD.MM.YYYY did his job when he drove his employer’s car to the site where timber was loaded, gave people a lift along the way, and on the way back helped lift a timber truck belonging to the same enterprise. Khmelev did not deny that he drank alcohol, gave an explanation, after that he continued to work, he was not fired. Khmelev did not cause damage to the employer, since he went to the plot for loading, then handed over the timber to the employer’s warehouse, and was not removed from work. Khmelev used a car and fuels and lubricants on the route. The loan agreement and the loan application are drawn up on the same date as the agreement on voluntary repayment of damage. The loan agreement is subject to cancellation on the grounds, since the agreement was concluded under a combination of difficult circumstances for the plaintiff. Khmelev was given a choice: either dismissal for drunkenness, or sign an agreement and contract. Khmelev did not commit an accident; Khmelev was not punished for driving while intoxicated. The loan agreement was concluded on the basis of an agreement for compensation of damages, and not in connection with personal needs. The loan agreement and the damage compensation agreement are related to the conditions in which Khmelev found himself. Asks to satisfy the plaintiff's demands.
The representative of the defendant Kupriyanova G.T., acting on the basis of a power of attorney, did not recognize the claims in court hearings; she explained to the court that Khmelev, having stopped by for his shift, drank alcoholic beverages, after which, for his own purposes, without instructions from the employer, without a waybill, he left from watch in an unknown direction and until 17-30 o'clock the next day he was somewhere. At 17:30 the next day, Khmelev was stopped with forest products on the highway. The employer does not know where Khmelev and the employer’s car were located for 20 hours before this. Timber industry employees Full name2, Full name1 and FULL NAME3, who stopped Khmelev, discovered that Khmelev was intoxicated, they called traffic police officers, who drew up a report against Khmelev. In fact, Khmelev was absent from work and was intoxicated. Khmelev agreed with this and offered to compensate for the amount of damage, so Khmelev was not fired; he was reprimanded for being intoxicated at work. Khmelev voluntarily signed an agreement on compensation for damage, and Khmelev also wrote an application for a loan. Having received the loan amount, Khmelev took the money to the cashier and paid off the damage. The amount of damage consists of depreciation of tires, fuels and lubricants, and auxiliary materials. The company incurred real costs. Nobody threatened Khmelev. FULL NAME1 is not Khmelev’s employer and did not express the will of the employer, but with general director Khmelev did not communicate. Khmelev signed all documents in order to avoid dismissal. Khmelev voluntarily repays the loan amount by depositing money in cash. The employer withholds nothing from Khmelev’s salary. A loan agreement may be declared invalid under certain conditions listed in Article 179 of the Civil Code, which in in this case are absent, since the loan agreement was concluded at 20% per annum, that is, on more favorable terms than in banks. Also, there was no confluence of difficult circumstances, since Khmelev’s wife was working during the period of concluding the loan agreement, Khmelev did not notify the employer about his dependents and the presence of financial difficulties, so there is no reason to believe that the employer entered into a deal with Khmelev, taking advantage of his difficult circumstances. He believes that Khmelev abused his right because he knew that he had committed a disciplinary offense, deliberately signed documents on compensation for damage so as not to lose his job, and then went to court.
Witness FULL NAME4 explained at the court hearing that DD.MM.YYYY he arrived at the shift site at 11 p.m. <данные изъяты>, where Khmelev was already there, with whom his shift period coincides. He had a night shift, he went to a site in the taiga, where Khmelev arrived at about one in the morning for loading. At two o’clock he loaded Khmelev’s car, after which Khmelev left, as he had to transport the timber to the lower warehouse, which is located 80 km from the loading site.
After listening to the participants in the trial and studying the case materials, the court comes to the following conclusion.
The plaintiff worked at ZAO Shelekhovsky KLPH as a driver of a car for timber removal. DD.MM.YYYY, by order of the employer dated DD.MM.YYYY No.-k the plaintiff was dismissed from DD.MM.YYYY at your own request.
By order of DD.MM.YYYY No. the plaintiff was subjected to disciplinary action in the form of a reprimand for being DD.MM.YYYY and DD.MM.YYYY in the workplace while intoxicated and for unauthorized use of an Iveco road train; state registration plate No. - without receiving a waybill, without undergoing pre-trip technical and medical examinations, for causing material damage to the enterprise.
According to the protocol on administrative offense dated DD.MM.YYYY, Khmelev E.A. DD.MM.YYYY at 17-30 o'clock. drove a car while intoxicated, thereby committing an administrative offense.
DD.MM.YYYY at 22-10 o'clock. Khmelev E.A. was examined by a commission for intoxication by the employer's employees, who, using a breathalyzer, detected the presence of alcohol at 0.5 ppm.
For the identified offense Khmelev E.A. was not brought to administrative responsibility in the prescribed manner, which is confirmed by the message of the magistrate of judicial district No. 65 of the Ulchsky district of the Khabarovsk Territory.
DD.MM.YYYY Khmelev E.A. provided a written explanation, which coincides with what he explained in court hearings, and also gave explanations regarding his examination for intoxication.
As follows from the presented time sheets, after DD.MM.YYYY, the plaintiff worked the entire shift period.
Resolving the plaintiff's claim to invalidate the loan agreement transaction No. from DD.MM.YYYY, bringing the parties to their original position, the court comes to the following.
The case file contains a statement by E.A. Khmelev. in the name of the employer for a loan in the amount <данные изъяты>rub. for damages for a period of 6 months.
According to the loan agreement No., concluded by E.A. Khmelev. and the employer - general director DD.MM.YYYY, the employer provided Khmelev E.A. cash at the rate of <данные изъяты>rub., for personal needs, for 6 months, at 20% per annum.
From cash receipt orders №, №, No. it follows that Khmelev E.A. repaid the loan, including interest, for the total amount <данные изъяты>rub. According to the pay slips, the employer did not deduct the loan amount from the plaintiff's wages.
In support of the claim to invalidate the loan agreement, the plaintiff refers to.
According to , a transaction made under the influence of deception, violence, threat, malicious agreement between a representative of one party and the other party, as well as a transaction that a person was forced to make as a result of a combination of difficult circumstances on extremely unfavorable conditions for himself, which the other party took advantage of (enslaving transaction) , may be declared invalid by the court at the request of the victim.
As established at the court hearing and confirmed by the case materials, the plaintiff has two minor children. The plaintiff's wife DD.MM.YYYY by DD.MM.YYYY did not work, then was fired on her initiative DD.MM.YYYY, as confirmed by a copy work book to the name FULL NAME5
On the presence of minor dependents and an unemployed spouse of the plaintiff employer DD.MM.YYYY did not notify.
The plaintiff by order of DD.MM.YYYY No. was dismissed on his own initiative. As established at the court hearing by the plaintiff’s testimony, he submitted his resignation letter to DD.MM.YYYY, that is, after his wife quit her job, which Khmelev could not but know about.
Consequently, the financial situation of Khmelev E.A. on DD.MM.YYYY was no worse than after he and his wife were dismissed from work on their own initiative; The plaintiff did not notify the employer about the difficult financial situation, and therefore there is no basis to assert that the employer took advantage of E.A. Khmelev’s opportunity. difficult circumstances, and Khmelev E.A. was forced to conclude a loan agreement due to a combination of difficult circumstances on extremely unfavorable terms for himself.
Under such circumstances, the plaintiff’s demands to invalidate the loan agreement transaction No. from DD.MM.YYYY, bringing the parties to their original position, that is, returning to the plaintiff the amount paid by him to repay the loan <данные изъяты>rub., cannot be satisfied.
In allowing the plaintiff's claim for reimbursement of expenses for the representative's services, the court comes to the following conclusion.
According to , the party in whose favor the court decision was made, upon its written request, the court awards the other party the costs of paying for the services of a representative, within reasonable limits.
The plaintiff submitted a written petition and documents confirming that he had paid for the provision of legal assistance by lawyers of the Omega Bar Association N.G. Sharko. and Kostenov A.I. for total cost <данные изъяты>rub.
Considering that the plaintiff’s demands were partially satisfied by the court, the court finds it possible to recover from the defendant in favor of the plaintiff <данные изъяты>rub. towards reimbursement of expenses for the services of a representative.
In accordance with Article 333-19 of the Tax Code, the state fee, from which the plaintiff was exempted, is recovered from the defendant, who is not exempt from paying legal costs, into the appropriate budget in accordance with the deduction standards established by budget legislation Russian Federation.
According to Art. 50 and art. 61.1 of the Budget Code of the Russian Federation, the state duty on cases considered by courts of general jurisdiction, justices of the peace (with the exception of the Supreme Court of the Russian Federation) is subject to credit to the budgets of municipal districts, according to the standard of 100 percent.
Consequently, the defendant is subject to collection of a state duty to the budget of the Komsomolsky municipal district of the Khabarovsk Territory, in the amount <данные изъяты>rub.
Based on the above, guided by art. 194-199 Code of Civil Procedure of the Russian Federation,
Claim Khmeleva E.A. To CJSC Shelekhovsky Integrated Timber Industry Enterprise is partially satisfied.
Invalidate the agreement on voluntary compensation Khmelev E.A. material damage to the employer.
Collect from in favor Khmeleva E.A. funds in the amount of <данные изъяты>rubles paid by him to compensate for damage caused to the employer.
Collect from CJSC "Shelekhovsky Integrated Timber Industry Enterprise" in favor of Khmeleva E.A. <данные изъяты>rubles for reimbursement of expenses for the services of a representative.
The rest of the claims must be rejected.
Collect from CJSC "Shelekhovsky Integrated Timber Industry Enterprise" to the budget of the Komsomolsky municipal district of the Khabarovsk Territory state fee at the rate of<данные изъяты>.
The decision can be appealed to the Khabarovsk Regional Court through the Komsomolsky District Court within 10 days from the date the decision was made in final form.
Damage is material loss through no fault of one’s own. The amount of damage can be large, and the perpetrators refuse to pay. In such a situation, there is a way out - to file a lawsuit. statement of claim. A claim for damages is one of the most common types of claims. According to the legislation of the Russian Federation, damage is distinguished between moral and material.
Material damage – actions of any nature that endangered life and health (road accidents), resulting in loss or damage to property (flooding of an apartment). Moral damage often accompanies material damage and is defined as the infliction of moral suffering. Damage caused to legal or to an individual, must be reimbursed in full (Article 1064 of the Civil Code of the Russian Federation). It is necessary to document everything, then when going to court it will be possible to confirm the repayment of the entire amount of damage. The debt is paid voluntarily - by agreement or force.A statement of claim, drawn up in accordance with all the rules, certified by a notary, is an important step towards winning the case in court. It should also be drawn up in case of voluntary compensation for damage. Correctly formulating a statement of claim is your main task. According to Article 131 of the Code of Civil Procedure of the Russian Federation, it must indicate: the name of the court, the name and place of residence of the plaintiff, the name and place of residence of the defendant, their contact details, a description of the circumstances under which the victim suffered damage, the price of the claim, the calculation of the amount of money, a list of attached documents. Details in the article "".
Useful materials for downloading:
It is important to indicate in the claim full information about the harm caused to you. When determining the amount of compensation, please provide calculation formulas. Don't forget to take into account the refinancing rate of the Central Bank of the Russian Federation.
Procedure for compensation for damage caused to the employer
Current labor legislation provides for the possibility of compensation for damage caused to the employer in several ways. It could be:
1) voluntary compensation for damage by the employee himself;
2) compensation for damage by order (order) of the employer;
3) compensation for damage in court.
In any case, before raising the issue of bringing him to financial responsibility, the employer is obliged, in accordance with Article 247 of the Labor Code of the Russian Federation, to determine the amount of damage caused to him and the reason for its occurrence.
To do this, the employer must conduct an inspection by creating a commission with the participation of relevant specialists. In addition, it is necessary to request a written explanation from the employee to establish the cause of the damage. If an employee refuses to give a written explanation, an act of such refusal should be drawn up. The employee and (or) his representative have the right to familiarize himself with all inspection materials and appeal them in the manner established by the Labor Code.
The fact of damage and its extent must be confirmed by a document drawn up based on the results of the inspection. This may be an inventory act, which establishes a shortage of property, or a defective statement, which establishes defective or damaged products, or another document. The absence of documents confirming the causes of damage and its size deprives the employer of the opportunity to hold the employee financially responsible for this damage.
Determining the amount of damage caused can be done in two ways - in in general and in about by yourself ok.
If damage is determined in the general manner, then according to Article 246 of the Labor Code of the Russian Federation, the amount of damage caused to the employer due to loss and damage to property is determined by actual losses, calculated based on market prices prevailing in the area on the day the damage was caused, but not less than the cost property according to accounting taking into account the degree of wear and tear of this property.
Thus, the general procedure provides for two ways to determine the amount of damage:
1) for actual losses based on market prices prevailing in the area on the day the damage was caused;
2) based on the value of the property according to accounting data, taking into account the degree of depreciation of this property. Obviously, the second method will be applied in the case when, taking into account market prices, the amount of damage turns out to be lower than the value of the property according to accounting data.
Undermarket value valuation object is understood as the most probable price at which this valuation object can be alienated on the open market in a competitive environment, when the parties to the transaction act reasonably, having all the necessary information, and the transaction price is not affected by any extraordinary circumstances 1 .
In accordance with the Law “On Accounting” 2 Accounting is an orderly system for collecting, registering and summarizing information in monetary terms about the property, obligations of organizations and their movement through continuous, continuous and documentary accounting of all business transactions. The objects of accounting are the property of organizations, their obligations and business transactions carried out by organizations in the course of their activities. When using accounting data, the amount of damage is documented.
In addition to the general order stated above determining the amount of damage, legislation provides for special order which applies in cases where:
1) damage to the employer was caused by theft, intentional damage, shortage or loss of certain types of property and other valuables;
2) the actual amount of damage caused exceeds its nominal amount.
In both cases, a special procedure for determining damage may be established by federal law. For example, in accordance with the Federal Law “On Narcotic Drugs and Psychotropic Substances,” an employee bears financial liability in the amount of 100 times the amount of direct actual damage caused to the organization as a result of theft or shortage of narcotic drugs or psychotropic substances 3 . The Federal Law “On Precious Metals and Precious Stones” provides that when carrying out transactions permitted by law, payment for precious metals is made taking into account world market prices, and for precious stones - at prices determined by experts on the basis of price lists similar to those in force on the world market, with taking into account market price fluctuations on the day of sale 4 . In practice, this procedure is used when determining the amount of damage caused by theft and shortage of precious metals and precious stones. This Law classifies gold, silver, and platinum group metals as precious metals. Precious metals can be in any condition, form, including native and refined, as well as in raw materials, alloys, semi-finished products, industrial products, chemical compounds, jewelry and other products, coins, scrap and industrial and consumer waste. Precious stones are natural diamonds, emeralds, rubies, sapphires and alexandrites, as well as natural pearls in raw (natural) and processed form. In accordance with the procedure established by the Government of the Russian Federation, unique amber formations are equated to precious stones.
Having determined the amount of damage caused and the reasons for its occurrence, the employer, in accordance with Article 240 of the Labor Code of the Russian Federation, has the right, taking into account the specific circumstances in which the damage was caused, to fully or partially refuse to recover it from the guilty employee.
Procedure for collecting damages . As already mentioned, damage caused to the employer can be compensated in several ways.
Voluntary compensation for damage by the employee himself . According to Article 248 of the Labor Code of the Russian Federation, an employee who is guilty of causing damage to the employer may voluntarily compensate for the damage in whole or in part. Such voluntary compensation can be made in various ways: transfer of equivalent property, correction of damaged property, payment of appropriate amounts of money.
By agreement of the parties to the employment contract, compensation for damage by installments is allowed. In this case, the employee submits to the employer a written obligation to compensate for damages, indicating specific payment terms. In the event of dismissal of an employee who gave a written commitment to voluntarily compensate for damage, but refused to compensate for the specified damage, the outstanding debt is collected in court.
With the consent of the employer, the employee may transfer equivalent property to compensate for the damage caused or repair the property damaged by him.
Compensation for damage by order (order) of the employer. Compensation for damage by deduction from wages is made if the amount of damage does not exceed the employee’s monthly earnings. This applies to both limited and full liability. If the employee bears full financial responsibility, but the amount of damage does not exceed a month’s salary, then the damage can be compensated by deduction from his salary.
Indisputably, by its authority, the employer has the right to recover damages if the following conditions are simultaneously met:
When the amount of damage does not exceed the employee’s monthly earnings;
When a month has not expired from the date of final determination of the amount of damage caused by the employee. In this case, the day of discovery of damage is considered the day when the employer became aware of the existence of damage (when conducting an inventory - the day the corresponding act was signed). The employer's preliminary verification actions, including requesting explanations from the employee, cannot extend beyond a month;
When the employee's employment relationship continues and the employer's authority may deduct amounts for damages from wages.
Compensation for damages in court . Cases on imposing financial liability on an employee are considered in the courts in the following cases:
If we are talking about compensation for damage exceeding monthly earnings. If an employee causes damage in an amount exceeding his monthly salary and bears full financial responsibility, then the employer does not have the right to withhold the amount of monthly earnings in an indisputable manner. Such a dispute is subject to full consideration in court;
Cases of recovery of damage caused, for which the one-month period for undisputed recovery has expired.
Regardless of the procedure for compensation of damages, if the employer fails to comply with the established procedure for collecting damages, the employee has the right to appeal the employer’s actions in court.
Since financial liability is an independent type of legal liability, compensation for damage is made regardless of whether the employee is brought to disciplinary, administrative or criminal liability for actions or inactions that caused damage to the employer.
Reduction by the labor dispute resolution body of the amount of damage to be recovered from the employee . In accordance with Article 250 of the Labor Code of the Russian Federation, the body for the consideration of labor disputes can, taking into account the degree and form of guilt, the financial situation of the employee and other circumstances, reduce the amount of damage to be recovered from the employee.
The amount of compensation for damage may be reduced if it was caused accidentally. The amount of compensation, as a rule, is not reduced in case of intentional causing of damage or infliction of it while intoxicated. If the damage was caused by a crime committed for mercenary purposes, it is not allowed to reduce the amount of compensation at all.
To decide whether to reduce the amount of damage, the circumstances in which the damage was caused are taken into account, in particular, whether the employee was normal conditions labor, how the storage of property was organized, whether the employee took measures depending on him to prevent damage.
It is also necessary to take into account the financial situation of the employee, i.e. the amount of his earnings, additional income, marital status, the presence of disabled dependents, deduction under executive documents and other circumstances. The difficult financial situation of an employee is one of the grounds for reducing the amount of damages to be compensated.
The possibility of reducing the amount of indemnified damage applies to cases of both full and limited liability. Such a reduction is also permissible in the case of collective (team) liability, but only after the distribution of damage to be compensated by the team among its members, since the degree of guilt, financial situation and specific circumstances for each of the team members may not be the same. Reducing the amount of the penalty from one of the team members does not increase the penalty from its other members.
Reimbursement of costs associated with employee training. In accordance with Article 198 of the Labor Code of the Russian Federation, an employer has the right to conclude an apprenticeship agreement for vocational training with a job seeker, and an apprenticeship agreement for on-the-job retraining with an employee of this organization. In this case, the contract of the second type is additional to the employment contract and is regulated by labor legislation and other acts containing norms labor law. If an employee, upon completion of training, without good reason, does not fulfill his obligations under the contract, including does not start work, he, at the request of the employer, returns the stipend received during training, and also reimburses other expenses incurred by the employer in connection with training 5.
The same obligation is established by Article 249 of the Labor Code of the Russian Federation in relation to an employee who has undergone training at the expense of the employer, in the event of his dismissal without good reason before the expiration of the period stipulated by the employment or student contract. Since a special period in this case is not established by law, according to Article 58 of the Labor Code of the Russian Federation, a work contract after training can be concluded for a period of no more than 5 years.
The labor legislation does not contain an exhaustive list of valid reasons for early termination of an employment contract at the initiative of the employee. These primarily include the impossibility of continuing work (retirement, disability, etc.), as well as an established violation by the employer of laws and other legal acts on labor, the terms of a collective agreement, agreement or employment contract, when the employer is obliged to terminate employment contract within the period specified in the employee’s application in accordance with Article 80 of the Labor Code of the Russian Federation. The final assessment of the degree of validity of a particular reason for dismissal is made by the court when considering the employer’s claim for reimbursement of the costs incurred by him for training the employee.
