Compensation for damage caused by an employee in the performance of work duties (including in the absence of a full liability agreement; State recourse claims against civil servants who caused material damage to third parties)

The financial liability of the parties to an employment contract is the obligation of one of the parties to the employment contract to compensate for property damage (harm) caused by it to the other party as a result of improper performance of duties. Financial liability is an independent type of legal liability. The Labor Code provides for mutual financial responsibility of the parties to an employment contract, this responsibility can only be borne by an employee and an employer who are in an employment relationship. In accordance with paragraph 1 of Article 120 of the Labor Code, the financial liability of a party to an employment contract for damage (harm) caused by it to the other party to the employment contract occurs for damage (harm) caused as a result of culpable unlawful behavior (action or omission) and the causal relationship between the culpable unlawful behavior and the damage (harm) caused, unless otherwise specified. not provided for by this Code and other laws of the Republic of Kazakhstan. In this regard, by imposing on the employee the obligation to compensate for the damage caused, the courts should establish the employee's guilt in causing the damage, as well as the causal relationship between the culpable unlawful behavior of the employee and the damage (harm) caused. The financial liability of an employee for causing harm to an employer is regulated by Article 123 of the Labor Code. According to paragraph 7 of Article 123 of the Labor Code, it is established that the list of positions and jobs held or performed by employees with whom an agreement on full individual or collective (joint and several) financial responsibility for failure to ensure the safety of property and other valuables transferred to employees, as well as a standard agreement on full financial responsibility, are approved by an act of the employer.

Compensation for damage caused by an employee in the performance of work duties (including in the absence of a full liability agreement; State recourse claims against civil servants who caused material damage to third parties)

When resolving a dispute, the courts should verify the existence of an act of the employer indicating the list of positions and jobs held or performed by employees with whom contracts on full individual or collective (joint and several) financial liability have been concluded. A collective agreement may include employee obligations regarding their liability for damage caused by them, indicating a list of positions and jobs held or performed by employees with whom agreements may be concluded on full collective (solidarity) financial liability for failure to ensure the safety of property and other valuables transferred to employees. In the previous Labor Code, the employee's liability was limited within the limits of his average monthly salary, and a list of positions was established with which it was necessary to conclude an agreement on full individual financial responsibility or collective financial responsibility.  The new Labor Code excludes the limits of the employee's financial liability for the damage caused. The grounds for full financial liability are provided for in paragraph 8 of Article 123 of the Labor Code. Thus, in accordance with paragraph 8 of Article 123 of the Labor Code, financial liability in the full amount of damage caused to the employer is assigned to the employee in the following cases:: 1) failure to ensure the safety of property and other valuables transferred to the employee on the basis of a written agreement on assuming full financial responsibility; 2) failure to ensure the safety of property and other valuables received by the employee under a report on a one-time document; 3) causing damage in a state of alcoholic, narcotic or substance abuse intoxication (their analogues); 4) shortage, intentional destruction or intentional damage of materials, semi-finished products, products (products), including during their manufacture, as well as tools, measuring instruments, special clothing and other items provided by the employer to the employee for use; 5) violation of the condition of non-competition, which caused damage to the employer; 6) in other cases stipulated in the employment or collective agreements. It should be noted that in order to bring employees to full financial responsibility, the labor legislation of the Republic of Kazakhstan does not always require a liability agreement. For example, in order to be held liable for failure to ensure the safety of property and other valuables, an employee may be held liable if he has received valuables under a one-time document, i.e. without a full liability agreement. Judicial practice in considering such cases shows that the courts satisfy the plaintiffs' claims for damages if the damage was caused directly in the performance of their work duties and full liability agreements were concluded with the defendants, as well as if evidence was provided at the court hearing confirming that the employee committed the guilty unlawful acts (or omissions).

Such evidence, for example, may be acts on the results of an inventory or an internal investigation, explanations of the perpetrator and other employees, etc. So, the claims of Manas LLP against drivers of D., S. are reasonably satisfied on the grounds that the defendants worked as drivers in LLP, received cars according to acceptance and transfer certificates, concluded with the drivers full liability agreements. During the operation of the vehicles, the defendants committed traffic accidents, as a result of which the vehicles received mechanical damage, which caused the vehicles to fail, which in both cases required the investment of material resources for their repair. On the grounds of the existence of an agreement on full financial liability and damage caused during work, the claims for full compensation of damage to Tech Expert LLP from T., which allowed the shortage of commodity values, were satisfied.; RSE at the National Center of Expertise of the Committee for Consumer Protection of the Ministry of National Economy of the Republic of Kazakhstan in the Karaganda region to cashier B. for lack of funds in the amount of 195,429 tenge; IP Ilyasova A.Sh. to seller T. for lack of funds in the amount of 194,008 tenge (courts of the Karaganda region). In these cases, the employees were in an employment relationship with the employer and full liability agreements were concluded with them, and their guilt in causing material damage was established by written evidence provided by the employer. 

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