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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

(as amended on 30-09-2021)

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.

4. Due to the lack in shopping mall of procedure for the damage assessment caused by the worker in case of execution of labor obligations, courts should determine the extent of damage, being guided by Regulations on procedure for determination of the extent of the harm (including the actual damage) caused to the state, the legal entities and individual entrepreneurs illegal actions approved by the resolution of Council of Ministers of the Republic of Belarus of December 7, 2016 No. 1001, and also the regulatory legal acts establishing procedure for determination of damage in the specific sphere of economic activity.

5. Delinquent behavior of the worker non-execution or improper execution of the obligations assigned to it by shopping mall, other acts of the legislation on work (including wage rate books) existing at the employer with the collective agreement, other local legal acts (for example, job descriptions of workers, employment policies and procedures), and also the employment contract is recognized.

Resolving question of availability of direct causal relationship between delinquent behavior of the worker and the actual damage which arose at the employer, it must be kept in mind that the delinquent behavior of the worker shall precede emergence of damage and be it immediate cause (that is to generate it).

The form of fault of the worker (intention or imprudence) for approach of financial responsibility does not matter, but can influence its type.

6. Taking into account conditions of attraction to financial responsibility, stipulated in Article 400 shopping malls, the financial responsibility cannot be conferred on the worker when: the damage resulted from impact of force majeure; non-execution by the employer of obligation on providing proper conditions for safety of the values entrusted to the worker was immediate cause of emergence of damage; the damage is caused in condition of justifiable defense if at the same time its limits, or owing to standard production and economic risk were not exceeded (experimental production, introduction of new technologies, etc.).

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