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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE REPUBLIC OF BELARUS

of September 30, 2021 No. 5

About accomplishment of the resolution of the Plenum of the Supreme Court of the Republic of Belarus by courts of March 26, 2002 No. 2 "About application by courts of the legislation on liability of workers for the damage caused to the employer in case of execution of labor obligations"

Having discussed results of studying and generalization of court practice on cases on liability of workers for the damage caused to the employer in case of execution of labor obligations it should be noted that courts generally correctly resolve disputes of this category, being guided by explanations of the resolution of the Plenum of the Supreme Court of the Republic of Belarus of March 26, 2002 No. 2 "About application by courts of the legislation on liability of workers for the damage caused to the employer in case of execution of labor obligations". At the same time in their work there are questions connected using the legislation on financial responsibility including the changes made to the Labor code of the Republic of Belarus.

For the purpose of the correct and uniform application of the legislation the Plenum of the Supreme Court of the Republic of Belarus DECIDES:

1. Draw the attention of courts that the timely and correct dispute resolution about liability of workers for the damage caused to the employer in case of execution of labor obligations is important instrument for ensuring of safety of property of the companies and organizations, promotes observance of regime of economy and effective managing, education at workers of careful attitude to property, serves protection of the rights and the interests of all participants of employment relationships protected by the law.

2. In case of permission of cases on financial responsibility of workers to courts it is necessary to establish fully and objectively the actual circumstances of each case; find out availability of set of all conditions with which the law connects approach of financial responsibility of workers, and its type; consider features of sharing the burden of proof. Special attention should be paid to preparation of case for legal proceedings, to use all stipulated in Article 262 Codes of civil procedure of the Republic of Belarus procedural means, to actively apply measures for providing the claim (including at the initiative of the court).

Judicial board on civil cases of the Supreme Court of the Republic of Belarus, regional and Minsk city to courts to exercise effective procedural control behind hearing of cases about financial responsibility of workers, to constantly generalize and analyze court practice, using results for ensuring the correct application of the legislation when implementing justice on this category of cases.

3. Make changes to the resolution of the Plenum of the Supreme Court of the Republic of Belarus of March 26, 2002 No. 2 "About application by courts of the legislation on liability of workers for the damage caused to the employer in case of execution of labor obligations", having been reworded as follows it:

"RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE REPUBLIC OF BELARUS

About application by courts of the legislation on liability of workers for the damage caused to the employer in case of execution of labor obligations

Having considered materials of generalization of court practice on cases on liability of workers for the damage caused to the employer in case of execution of labor obligations for the purpose of the correct and uniform application of the legislation the Plenum of the Supreme Court of the Republic of Belarus DECIDES:

1. Draw the attention of courts that the financial responsibility of workers is independent type of the legal responsibility providing obligation of the worker to compensate in the cases established by the legislation, procedure and the sizes the damage caused to the employer in case of execution of labor obligations and coming irrespective of employee engagement for delinquent behavior to disciplinary, administrative or criminal liability.

Conditions and procedure for employees engagement to financial responsibility are determined by the Labor code of the Republic of Belarus (further - shopping mall), other acts of the legislation, collective agreements, agreements and other local legal acts concluded and accepted according to the legislation.

The financial responsibility of separate employee categories can be regulated by special regulatory legal acts. In particular, the financial responsibility of the military personnel is regulated by the Regulations on financial responsibility of the military personnel approved by the resolution of Council of Ministers of the Republic of Belarus of November 22, 2004 No. 1477; financial responsibility of staff of law-enforcement bodies - Regulations on financial responsibility of faces of the private and the commanding structure of law-enforcement bodies of the Republic of Belarus, the approved resolution of Council of Ministers of the Republic of Belarus of August 27, 2012 No. 789.

2. It is necessary to consider that owing to requirements of part one of Article of 400 shopping malls the liability of the worker for the damage caused to the employer in case of execution of labor obligations comes in case of simultaneous availability of the following conditions: the damage caused to the employer; illegalities of behavior (action or failure to act) worker; direct causal relationship between delinquent behavior of the worker and the damage which arose at the employer; fault of the worker in damnification.

By the general rule, the obligation on proof of the fact of damnification and its size, and also other conditions of financial responsibility stated above is assigned to the employer (part four of Article of 400 shopping malls). In case of assignment on the worker of full financial responsibility on the bases provided by Items 1, of 2, of 4, of the 6th Article of 404 shopping malls, in damnification the worker shall prove lack of fault. However the obligation of proof of other conditions of financial responsibility and in these cases is assigned to the employer.

The termination with the worker of employment relationships does not exempt it from liability for the caused damage.

3. Owing to part two of Article of 400 shopping malls in case of damage assessment only the actual damage is considered, the lost profit is not considered, except for damnification case not in case of execution of labor obligations. The actual damage is understood as the loss, deterioration or lowering of value of property attracting need to make costs for recovery, property acquisition for the employer or other values, or excessive money payments (except for the penalties collected from the employer).

In particular, can treat excessive money payments: the salary paid illegally to the dismissed worker; losses of the employer in connection with dissatisfaction of claims because of the omission of limitation period; the expenses connected with transportation, examination of the low-quality products (goods) delivered in retail chain stores; above-standard expense of the electric power, fuels and lubricants.

As the legislation on work does not establish other, it is necessary to carry any their kind to the penalties collected from the employer - as the administrative punishment imposed by competent authority and stipulated in Article 311 Civil codes of the Republic of Belarus (further - group of companies) measure of civil responsibility.

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