Sample contract for financial liability of a cashier-seller, how to protect yourself

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Retail chains are developing, the number of self-service stores is growing every day, and the profession of salesperson-cashier is becoming one of the most in demand. How to ensure the safety of cash and preserve your property, what a sample cashier-seller liability agreement should contain, as well as what actions you need to take to compensate for the loss of property from your employee, you can learn from this article.

Professional responsibilities of the employee

A cashier-salesperson is a universal specialist, as he deals not only with cash and valuables, but also with people and equipment.

The cashier seller is obliged to:

1. Serve customers in the cash register.
2. Work with cash documents, cash, reconcile cash payments and the actual availability of funds, conduct an inventory, hand over funds for collection.
3. Understand not only financial issues, but also be able to identify a technical malfunction of a cash register (hereinafter referred to as the cash register), and also correct it if possible.
4. Monitor price tags on goods from the sales floor with database data in the cash register, be able to advise the buyer, and be a conduit between the store administration and its client.

The range of responsibilities is very wide and requires the employee not only to have knowledge and skills, but also to guarantee the employer that all the valuables with which the specialist will work will remain intact. Below we will look at a document that allows you to protect the employer from losses intentionally caused by the employee.

Damage and liability

Financial liability means: the employee’s obligation to compensate for the damage caused by him with malicious intent or as a result of inaction.

Table 1. Division of damages.

Indirect costs and lost profits are not subject to compensation; liability lies only within the limits of actual damage.

Results

Drawing up an agreement on liability with a person entrusted with working with material assets is an issue that is extremely important for an employer interested in the safety of his property. When drawing up this document, you must adhere to a number of rules established by current legislation.

Sources:

• Resolution of the Ministry of Labor of the Russian Federation dated December 31, 2002 N 85
• Labor Code of the Russian Federation

You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Types of financial liability

From the point of view of compensation for harm, they share full and limited liability. The difference lies in the name. In case of full liability, 100% of the damage incurred is compensated. If the costs are limited, they are compensated within the employee’s average earnings.

Watch the video for everything about financial responsibility:

Full financial liability is regulated by Article 242 of the Labor Code of the Russian Federation, as well as the list of professions with which it is possible to conclude such an agreement. Work related to cash and cash is included in this list.

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Questions:

Can an employer (educational organization, university) enter into agreements on individual or collective (team) financial liability with persons (employees) whose positions are not included in the list of positions and works replaced or performed by employees with whom the employer can enter into written agreements on full individual or collective (team) financial responsibility for the shortage of entrusted property (Resolution of the Ministry of Labor of the Russian Federation of December 31, 2002 No. 85), securing (prescribing) this type of responsibility in the employment contract and job description.

What are the legal consequences of such recognition for the employer?

What sanctions can the labor inspectorate apply to an employer?)

Lawyer's answer

According to Part 1 of Art. 244 of the Labor Code of the Russian Federation, an agreement can be concluded with an employee on full individual financial liability for the shortage of property entrusted to employees who directly serve or use cash, commodity values ​​or other property. The purpose of concluding such an agreement is to compensate the employer for probable damage in full. The absence of this agreement does not allow the employer to hold the employee to full financial liability. To bring an employee to full financial liability in accordance with Art. 244 of the Labor Code of the Russian Federation, the following conditions must be present:

— the employee reaches the age of 18 years (Part 1 of Article 244 of the Labor Code of the Russian Federation);

- performance by an employee of functions that are related to the servicing of monetary and commodity valuables, in a position provided for in the List of Positions and Works replaced or performed by employees with whom the employer can enter into written agreements on full individual financial responsibility for the shortage of entrusted property (approved by the Resolution of the Ministry of Labor of Russia dated December 31, 2002 N 85).

— conclusion of an agreement on full individual financial liability. The conclusion of such an agreement is the employer’s right, not an obligation. Failure to conclude such contracts with employees means releasing the latter from the obligation to bear full financial responsibility;

- the employee commits guilty and illegal actions when servicing the valuables entrusted to him;

- causal relationship.

Guide to HR issues. Material liability of the employee {ConsultantPlus}

The standard form of an agreement on full individual financial responsibility is provided for by Resolution of the Ministry of Labor of Russia dated December 31, 2002 N 85. Accordingly, the employer does not need to develop it independently. However, he may include additional conditions or individual responsibilities for the employee in the standard form or use his own form of contract. There is no need to issue an organization order.

Guide to HR issues. Material liability of the employee {ConsultantPlus}

Who can be the financially responsible person?

An employer may enter into individual agreements on full financial liability only with employees of certain categories. The list of positions and work replaced or performed by employees with whom the employer can enter into written agreements on full individual financial liability for shortages of entrusted property (hereinafter referred to as the List) was approved by Resolution of the Ministry of Labor of Russia dated December 31, 2002 N 85.

The list consists of two sections. The first contains positions that provide for the conclusion of individual contracts on full financial responsibility with the employees replacing them. In particular, these are cashiers, controllers, cashier-controllers (including senior ones), as well as other employees performing the duties of cashiers (controllers). The second section lists types of work, the performance of which also allows the employer to conclude individual agreements with employees on full financial responsibility. These, in particular, include the following works: acceptance and payment of all types of payments; for settlements during the sale (sale) of goods, products and services (including not through a cash register, through a cash register, without a cash register through a seller, through a waiter or other person responsible for making payments); servicing vending and cash machines; for the production and storage of all types of tickets, coupons, subscriptions (including subscriptions and food vouchers) and other signs (documents) intended for payments for services.

Important! The employer does not have the right to enter into written agreements on financial liability if the employee’s position or the specific work entrusted to him is not provided for by the specified List (Article 244 of the Labor Code of the Russian Federation, letter of Rostrud dated October 19, 2006 N 1746-6-1).

If the employer has not complied with the requirements of the law on the procedure and conditions for concluding and executing an agreement on full individual financial liability, then this may serve as a basis for releasing the employee from the obligation to compensate for damage caused through his fault in full in excess of his average monthly earnings (Review of court review practice cases on the financial liability of an employee (approved by the Presidium of the Supreme Court of the Russian Federation on December 5, 2018)).

Guide to HR issues. Material liability of the employee {ConsultantPlus}

On the issue of unlawful conclusion of an agreement on the financial liability of an employee, administrative liability is provided for:

- according to Part 4, 5 Art. 5.27 of the Code of Administrative Offenses of the Russian Federation - if, for example, you incorrectly drew up an employment contract with an employee;

- according to Parts 1, 2 Art. 5.27 of the Code of Administrative Offenses of the Russian Federation - for any other violations related to the incorrect assignment of duties to the employee;

Ready-made solution: How to assign cashier duties to an employee (ConsultantPlus, 2019) {ConsultantPlus}

An employer can enter into agreements with employees on collective (team) financial liability (Article 244 of the Labor Code of the Russian Federation). Such contracts are concluded when it is impossible to differentiate the responsibility of each employee for causing harm (Part 1 of Article 245 of the Labor Code of the Russian Federation).

These contracts can be concluded only with those employees who perform work included in the List (approved by Resolution of the Ministry of Labor of Russia dated December 31, 2002 N 85). In particular, such work is: acceptance and payment of all types of payments; settlements for the sale (sale) of goods, products and services (including not through a cash register, through a cash register, without a cash register through a seller, through a waiter or other person responsible for making payments); servicing vending and cash machines; for the production and storage of all types of tickets, coupons, subscriptions (including subscriptions and food vouchers) and other signs (documents) intended for payments for services.

Such an agreement can be concluded, for example, with a team of warehouse workers, since they perform the work provided for in the specified List, namely: acceptance for storage, processing (manufacturing), storage, accounting, release (issuance) of material assets in warehouses, bases, storerooms (points, departments), at sites, in other organizations and divisions; on equipment of passenger ships, carriages and aircraft; for servicing the residential sector of hotels (campsites, motels, etc.).

Guide to HR issues. Material liability of the employee {ConsultantPlus}

Order of the USSR Ministry of Trade dated August 19, 1982 N 169 approved the Instructions on the procedure for applying in state trade the legislation regulating the financial liability of workers and employees for damage caused to an enterprise, institution, or organization (hereinafter referred to as the Instructions). According to clause 3.7 of the Guidelines, agreements on full collective (team) responsibility cannot be concluded with the following persons:

— with employees of the small retail network (delivery and distribution trade, trade in tents, kiosks, etc., including those located separately in the sales area), as well as other persons with whom an individual agreement on full financial responsibility has been concluded;

- persons hired on a part-time or part-time basis, if they, together with other employees, do not manage commodity assets (these persons can be sent to independent areas of work with full individual financial responsibility);

— workers of auxiliary professions (ironers, cutters, etc.);

— junior service personnel, loaders, auxiliary (transport) workers, watchmen;

- persons under 18 years of age;

— trainees of educational institutions, students studying directly at trade enterprises;

- graduates of higher and secondary specialized educational institutions and vocational education institutions who do not have experience working with material assets, as well as persons who have undergone on-the-job training during the first year of work. These employees are prohibited from entrusting independent work on servicing material assets outside the enterprise (delivery and distribution trade, trade in tents, stalls, etc.).

The guidelines continue to apply to this day, but the order in which they will be applied has not been determined. In this regard, this document can be used as a recommendation, since the mandatory nature of its norms is not established by the Labor Code of the Russian Federation or other federal laws.

However, this regulatory act contains important clarifications that are not reflected in the current legislation. So, for example, according to clause 2.6 of the Instructions, the financial responsibility of the team for valuables located on the sales floor (in production) and in the utility room can be established if:

— the utility room is used by only one team, all its members have free access to material assets located both in the sales area and in the utility room, and participate in all trade, warehouse and production operations;

— all commodity operations of production, auxiliary warehouse premises, commodity-money transactions of the trading floor constitute a single process of the team’s work and are controlled by all its members.

The employer can use these provisions when organizing the safety of property entrusted to the team (team).

When drawing up an agreement on collective (team) financial liability, it is necessary to comply with the requirements of the law on the procedure and conditions for its conclusion. Otherwise, the employee may be released from the obligation to compensate for the damage caused through his fault in full in excess of his average monthly earnings (Review of the practice of court consideration of cases on the financial liability of an employee, approved by the Presidium of the Supreme Court of the Russian Federation on December 5, 2018).

Guide to HR issues. Material liability of the employee {ConsultantPlus}

A practical situation. Is it possible to simultaneously conclude an individual and collective agreement with an employee on full financial responsibility?

In accordance with Part 1 of Art. 245 of the Labor Code of the Russian Federation, when employees perform certain types of work together, collective (team) financial liability can be introduced in the case when it is impossible to differentiate the responsibility of each employee for causing damage and to conclude an agreement with him on compensation for damage in full. Consequently, the signing of agreements on collective and individual responsibility by one employee will contradict Art. 245 Labor Code of the Russian Federation. However, there may be exceptions. This applies to an employee who performs functions that allow him to conclude both an individual agreement on full financial responsibility and a collective one. For example, two agreements on liability can be concluded with a cashier-salesperson, since it is possible to differentiate responsibilities by type of work performed. As with the seller, an agreement on collective financial liability can be concluded with him, since in addition to the seller, other employees have access to the hall where the goods are displayed and his responsibility cannot be differentiated from them. At the same time, the duties of this employee include transactions with funds, to which no one except him is allowed.

Guide to HR issues. Material liability of the employee {ConsultantPlus}

Thus, the employer does not have the right to enter into written agreements on financial liability if the employee’s position or the specific work entrusted to him is not provided for in the specified List. If employees actually perform the work specified in Section II of Appendix No. 1 to Resolution of the Ministry of Labor of the Russian Federation of December 31, 2002 No. 85, then the employer has the right to enter into agreements with them on full financial liability.

Selection of documents (see appendix):

Question: ...Does the employer have the right to enter into agreements on full individual financial liability with employees who, in accordance with job descriptions, receive, record, store, and issue inventory materials, if the names of their positions are not indicated in the List, approved. Resolution of the Ministry of Labor of Russia dated December 31, 2002 N 85? (“Website “Onlineinspection.RF”, 2019) {ConsultantPlus}

Question: ...Employees actually carry out the work of receiving for storage, storage, accounting, release (issuance) of material assets. Does the employer have the right to include in employees’ employment contracts the obligation to ensure the safety of inventory items and to conclude agreements with them on full individual financial responsibility? (“Website “Onlineinspection.RF”, 2019) {ConsultantPlus}

The explanation was given by Igor Borisovich Makshakov, legal consultant of LLC NTVP Kedr-Consultant, November 2019.

When preparing the answer, SPS ConsultantPlus was used

Conditions for liability

The grounds for liability are:

1. In case of damage to property, complete or partial. Those. additional costs are necessary for restoration, repair or complete replacement of damaged valuables.

2. 
   If a shortage of valuables transferred to the responsible person is detected.

3. If the property is damaged or lost due to the fault of an employee in a state of alcoholic or other intoxication, or intentionally.
4. If it is proven that damage or loss occurred as a result of failure to fulfill professional duties, or performance was not at the proper level.
5. If the employee’s guilt is proven, or he did not fulfill his job duties.
6. When disclosing a commercial or other protected secret.

Form of contract + sample

A typical liability agreement usually contains the following information:

1. Personal data of the employee and information about the employer.
2. The subject of the agreement sets out the responsibilities of the cashier-seller related to ensuring the safety of material assets for which the cashier-seller is responsible. The form of reporting for cash and products sold is specified. Participation in conducting inventories is also discussed.
3. The responsibilities of the employer that the organization undertakes must be indicated. Typically, the employer undertakes to carry out an inventory, provide normal conditions for work and storage of property. The rules for determining material damage and methods of compensation are described.
4. When concluding a contract, it is necessary to determine the list of values ​​​​that are transferred to the employee. A link to such a document, as well as an introduction to it, is attached to the agreement.

Below is a sample document that is adapted to the profession of a cashier.

With which employees can we conclude agreements on full financial responsibility?

Written agreements on full individual or collective (team) financial responsibility (Clause 2, Part 1, Article 243 of the Labor Code of the Russian Federation) can be concluded with employees who have reached the age of 18 and directly service or use cash, commodity values ​​or other property (Article 244 Labor Code of the Russian Federation).

Lists of works and categories of workers with whom these contracts can be concluded, as well as standard forms of these contracts, are approved in the manner established by the Government of the Russian Federation.

The Labor Code of the Russian Federation provides that financial liability in the full amount of damage caused to the employer can be established by an employment contract with the deputy heads of the organization and the chief accountant.

In addition, the Ministry of Labor and Social Development of the Russian Federation, by Decree No. 85 of December 31, 2002, approved the List of positions and work filled or performed by employees with whom the employer can enter into written agreements on full individual or collective (team) financial responsibility, as well as standard forms of agreements about full financial responsibility.

In particular, in accordance with this List, written agreements on full individual financial responsibility for shortages of entrusted property can be concluded with cashiers, controllers, cashier-controllers, as well as other employees performing the duties of cashiers (controllers), laboratory assistants, methodologists of departments, dean's offices, heads of library sectors, etc.

That is, agreements on full financial liability can be concluded only with certain categories of workers (Article 244 of the Labor Code of the Russian Federation, Resolution of the Ministry of Labor of the Russian Federation dated December 31, 2002 No. 85, letter of the Rostrud of the Russian Federation dated October 19, 2006 No. 1746-6-1).

Important! Judicial practice also confirms the illegality of concluding agreements on full financial liability with all employees of the employer without exception (Determination of the Armed Forces of the Russian Federation of November 19, 2009 No. 18-B09-72).

Features of the document

This you need to know:

• The employer has the right to enter into such an agreement; this is not a mandatory procedure
• It is possible to return the damage caused in a pre-trial manner or in the absence of an agreement within one average monthly salary of the employee
• In the event of natural disasters, force majeure or other reasons beyond the control of the parties, as well as if the employer did not provide normal conditions for work and safety of valuables (money), the employee is not responsible
• In the event of termination of the employment contract or transfer to another position not related to values, responsibility ceases

Where can I get a liability agreement form?

Standard forms of agreements for both types of full financial liability are present in Resolution of the Ministry of Labor of the Russian Federation dated December 31, 2002 No. 85 (Appendices 2 and 4). Download them from our website using the links below:

They can be used as a basis when drawing up your own contracts, which will take into account the requirements for specific positions, jobs, teams and situations.

Read about the types of financial liability that a chief accountant may have in the material “What financial liability does a chief accountant bear?”

The following information will be required for such a document:

• About the parties entering into it.
• Their responsibilities. In particular, the employer must create conditions so that the employee can ensure the safety of property.
• The subject of the employee's responsibility.
• Date of conclusion.

On our website you can see and download one of the options for an agreement on the full individual financial responsibility of an accountant-cashier.

For a sample of a similar document drawn up for the team, see here.

What to do when the damage is done?

If the employee’s guilt is proven, damage to property has been caused and the extent of damage has been determined, all measures must be taken to obtain compensation.

Procedure:

1. It is necessary to prove the employee’s guilt and involvement in the damage caused. This evidence should be documented in an act or protocol.
2. It is necessary to conduct an investigation, determine the size of the property and identify the culprit within one month.
3. Take an explanatory note from the culprit; if he refuses, draw up an act of refusal to give an explanation within three days.
4. If the damage is estimated below the average monthly salary, the employer has the right, by his own order, to withhold the calculated amount from the employee’s salary; in other cases, the damage is compensated in court.

Contracts of collective (team) financial liability

Under an agreement on collective (team) liability, valuables are entrusted to a predetermined group of persons, who are assigned full financial responsibility for their shortage. To be released from financial liability, a member of a team (team) must prove the absence of his guilt (Part 3 of Article 245 of the Labor Code of the Russian Federation). In case of voluntary compensation for damage, the degree of guilt of each member of the team (team) is determined by agreement between all members of the team (team) and the employer. When recovering damages in court, the degree of guilt of each member of the team (team) is determined by the court (Part 4 of Article 245 of the Labor Code of the Russian Federation).

The list of works for which full collective (team) financial liability can be introduced for the shortage of entrusted property and the standard form of an agreement on full collective (team) financial liability are contained in Appendices No. 3 and No. 4 to the resolution of the Ministry of Labor and Social Development of the Russian Federation dated December 31, 2002 No. 85.

Important! One of the grounds for imposing full financial liability on a collective of workers for damage caused to the employer is the existence of a single written agreement on collective (team) financial liability, concluded with all members of the collective (team) of workers in accordance with the standard form, approved. Resolution of the Ministry of Labor and Social Development of the Russian Federation dated December 31, 2002 No. 85.

It should be taken into account that the inclusion of a condition on full collective (team) financial responsibility in the employment contracts of employees does not relieve the employer of the obligation to prove the existence of grounds for concluding an agreement with these employees on collective (team) financial responsibility and compliance with the procedure for its conclusion.

EXAMPLE No. 2.

The terms of the concluded employment contracts with employees stipulated that the employee is hired with full collective financial responsibility for the entrusted values; damage caused by the employee in the performance of official duties is subject to compensation in the manner and amount established by law.

The company carried out an inventory of inventory items, which resulted in a shortage of 3.8 million rubles. The employer filed a lawsuit in an attempt to recover damages from the employees.

But the employer was unable to recover damages, since the concluded agreement on full collective (team) financial liability:

• did not contain a list of all members of the team who accepted the terms of full financial responsibility;
• from the contents of the contract it was impossible to determine which of the workers and when were included in the team (team) and excluded from it, as well as the opinion of the team (team) on the inclusion of new workers, how the reception, storage and transfer of property was carried out.
• the contract does not establish methods for identifying material damage (for example, inventory) and distributing responsibility between team members, methods for repaying the resulting obligation for shortage or damage to property are not defined, the procedure for identifying the degree of guilt of each team member is not established, the validity period of the contract is not specified, and passport data is not reflected , addresses of team members (team).

From several separate sheets of workers’ signatures presented to the court, it is impossible to reliably establish which agreement on collective liability they relate to.

In addition, some of the employees were hired by the company later, and no confirmed data was presented to the court that the employees gave their consent to join the team (team) of workers who were entrusted with material collective responsibility (Definition of the Judicial Collegium for Civil Cases RF Armed Forces dated August 20, 2018 No. 5-KG18-161).

To pay or not to pay after dismissal

If an employee is dismissed, he is obliged to fully compensate for the damage caused, as determined by the court. The main thing is to meet all deadlines and complete the documents correctly.

How to bring to justice, watch the video:

To preserve property and funds, you need to complete all documents in a timely manner and follow the recommendations of this article. The state has given the employer the right to resolve the issue independently - within the limits of the average monthly salary or by going to court if all documents are in order. Be carefull.

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