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The employer suffers damages. How to prove the casual effect?

Tatiana Samarina, Doctor at Law, Senior Lawyer at the Law Firm "YUST"

Discovery of casual effect is decisive when considering the cases of compensation by the employee for the damages caused to the employer. The employer, in order to prove the casual effect from the employee’s conduct over the damages, needs to pay special attention to conducting and documenting the work duty inspection.

According to clause 4 of the Resolution No. 52 “On application by the courts of the legislation governing material responsibility of employees for damages caused to employer” by the Board of the Supreme Court of Russia, dated 16.11.2006 (hereinafter – The Board of the SCA Resolution No. 52), it is the employer who must prove the casual effect from the employee’s conduct over the damages.

The employer must discover proof of the casual effect before filing the statement of claim, at the stage of the internal work duty inspection, during which the employer, pursuant to Article 247 of the LCRF, must ascertain:

  • The causes for the damage;
  • The guilt of concrete persons in the damage;
  • Illegality of their actions (inaction);
  • The existence and the amount of the direct actual damage;
  • The absence of circumstances, which would exclude material responsibility;
  • Mitigating or aggravating circumstances.

Work duty inspection: the employers’ errors

It should be noted that most employers do not pay sufficient attention to due organization of conducting and documenting the work duty inspection.

The most common mistakes include:

  • Failure to demand written explanations from all persons in any way involved in the process of causing damage;
  • Failure to discover actual causes of the damage;
  • Not following the procedure of inventory taking of property and financial obligations;
  • Failure to register the mitigating circumstances etc.

The following example is expressive: a claim by an employer was dismissed, as the employer had not presented any hard proof of the employee’s illegal actions and guilt, had not discovered the causes for the shortage, had not proven the fact of direct actual damage and had declared the amount of the damage without taking into account the property’s depreciation (Resolution dated 19.04.2012 by the Moscow Region Court on the case No. 33-7196/2012).

It is practically and juridically impossible to prove the casual effect from concrete employees’ actions (inaction) over the damage without ascertaining the above-mentioned circumstances. In such case, the court with very likely rule illegal any measure of material and disciplinary responsibility, which the employer chooses for a concrete employee.

In order to ascertain the casual effect with maximum certainty, the employer should first of all determine the premises for the arising of the damage. For this, the following facts need to be discovered:

  • The legality of execution of the full material responsibility agreement with the employees involved in the storage, processing, sale, issue, transportation and other operations with inventory holdings; <…>

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