Every employer may encounter lack of qualifications, negligence, or simply frivolity of an employee, which may result in material losses for the employer. Moreover, the violation may not necessarily involve causing direct damage to the employer’s property. It is possible to recover material damages for violation of labor discipline as such.
There are ways to pre-trial resolve a conflict situation, but the employee does not always meet the employer halfway. Therefore, sometimes the employer has to file a claim and the proceedings develop into litigation. In this regard, the employer needs to approach the preparation and filing of the claim extremely carefully, since in case of any violations on his part, the court may side with the employee.
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Drawing up a statement of claim for recovery of material damage
If it was not possible to resolve the conflict with the employee pre-trial, then the time comes for litigation. In the claim, the plaintiff indicates how the material damage was caused and what specific property it was caused, or what costs the employer incurred due to the employee’s misconduct.
The employer's evidence base can be witness testimony, expert opinions, circumstances of damage or other documented facts of the employee's guilt.
When filing a claim, the employer must attach a copy of the employment contract to the claim.
The statement of claim must be made in writing, by hand or using a computer. The contents of the claim must include:
- full name and location of the court;
- indication of the details of the plaintiff and defendant;
- subject of the application;
- grounds for filing a claim;
- cost of claim;
- data on attempts to resolve the conflict pre-trially;
- personal signature of the plaintiff and seal of the organization.
Indication of the claim price is a mandatory condition. It is quite difficult to calculate the amount of damage caused on your own, therefore, when drawing up a claim, it is better to seek help from specialist appraisers.
How to make a claim
The law does not establish mandatory requirements for the content of claims, but judicial practice indicates the need to comply with certain conditions, the presence of which affects the dispute process. If your dispute arose from an agreement that does not provide for a complaint form and mandatory requirements for it, then we recommend that you adhere to the drafting in accordance with the following structure.
- Introductory part: describe the reasons for the dispute; characterize the contractual relations between the parties; list what actions were taken by the parties to the disputed agreement; indicate the addresses and contact details of the parties.
- Reasoning part: refer to the legal norms that, in your opinion, the counterparty violated; make references to clauses of the contract that are not respected.
- Final part: formulate your demand to the counterparty for financial or material compensation; it will be more convincing if the claim for damage to the property of a legal entity contains an estimate of losses; fix the period during which the other party must fulfill your conditions; indicate your right to go to court if demands are ignored; put your signature, date and seal (if its presence is provided for by the charter).
When writing, adhere to a formal business style. Avoid phrases with emotional connotations. Try to formulate the requirements in such a way that the entire letter is no more than two A4 pages.
The claim refers to documents that are expected to be used in court in the event of an escalation of the dispute. In this regard, we recommend sending supporting documents that the counterparty does not have. This action will bring clarity to the dispute and help lead to a settlement at the pre-trial stage.
IMPORTANT!
We recommend that you always send along with your complaint a document confirming the authority of the signatory (power of attorney, order of appointment to a position). This will eliminate the risk of an appeal against you in court with the fact that the letter was signed by a person who does not have the appropriate authority to do so, so the pre-trial procedure may be considered not to have been followed.
Filing a claim for compensation for material damage
The place where a claim is filed is primarily determined by its cost. So, if the price of the claim is more than 50 thousand rubles, then the applicant applies to the district court at the place of residence of the defendant. If it is less than this amount, then the magistrate will consider the case.
The employer can file a claim against the employee no later than one year from the date of the damage.
An application to the court can be submitted by the plaintiff either in person, through an authorized representative or by mail. The main thing is to pay the state fee before filing and attach the corresponding receipt to the documentation attached to the claim. The amount of the state fee depends on the amount of the claim. You can calculate it on the official website of the Supreme Court. Pay - at a bank, post office or any other authority that accepts payments.
If the applicant presents compelling arguments and evidence confirming the employee’s guilt, the court will side with the plaintiff. However, the law provides for a number of situations in which an employee will be exempt from compensation for damage.
Thus, an employee is exempt from payments if:
- the damage was caused by unforeseen events that were beyond the control of the employee;
- an attempt to eliminate problems that caused damage threatened the life of the employee;
- the damage was caused by self-defense;
- material damage was partially or completely caused by the actions of the employer;
- the employee was released from liability by the employer.
Among other things, the court will exempt the employee from compensation for damage if the harm caused to the employer was the result of an ordinary economic risk or due to the emergence of production or technological innovations for which the employee was not properly prepared.
Claim for damages
In the Arbitration Court of the Tyumen Region Address: 6250000, Tyumen, st. Khobriakova 4444
Plaintiff: Plaintiff: Vasilek LLC Legal address: 0000111, Voronezh, st. Engelsa, 500, off. 2 INN 000005489 KPP 00005651 OGRN 00005415461 Tel. +7 (000) 0000000, mobile +700000000 E-mail: vasya.cum
Defendant: Romashka LLC OGRN 0000000000 INN 000000000 Legal and postal address: 00011, CITY MOSCOW, Novonagorny Proezd, 306, building 8
Amount of claim: 100,000 rubles 00 kopecks State duty: 4,000 rubles 00 kopecks
Statement of claim for damages caused by poor-quality repairs
On January 15, 2017, agreement No. 01111 (hereinafter referred to as the agreement) was concluded between Vasilek LLC (hereinafter referred to as the Plaintiff, the Customer) and Romashka LLC (hereinafter referred to as the Defendant, the Contractor), in accordance with clause 1.1 of which the contractor undertook to fulfill overhaul of product 999с999ХРД.
The obligations under the contract were fulfilled by Romashka LLC, the repaired product was transferred to Vasilek LLC, which is confirmed by Act No. 555 of the work performed.
On 04/01/2017, the Contractor received notification No. 222 from the Customer about his arrival at the Plaintiff to participate in determining the causes of defects, drawing up a complaint report and restoring the product. The grounds for calling Vasilek LLC indicated that it was not possible to start the engine.
On April 15, 2017, a commission consisting of representatives of the Customer and the Contractor drew up a complaint report No. 55555, stating that it was not possible to determine the nature of the defect and the culprit of the defect on the spot.
The faulty engine on the AAA-555 product was replaced with a DDD-666 engine. Existing defects were eliminated by the efforts and means of the Contractor, which is confirmed by Restoration Act No. 11111 dated June 25, 2017.
A commission consisting of representatives of the Customer, the Contractor and specialist Ivanov I.I. (from the expert institution - Ekspertiza LLC), based on the results of the study, the operational nature of the engine defect was established; the causes of the defect were indicated as oil starvation, as well as violation by the driver of the requirements of the Operating Instructions. The results of the study are documented in research report No. 5544 dated July 15, 2017.
Due to the fact that the defect in the disputed product was operational, the costs of restoring the product by sending its employees to conduct an investigation and draw up a complaint report are subject to reimbursement by the Defendant in the amount of 100,000 rubles.
By virtue of Art. 702 of the Civil Code of the Russian Federation, the obligations of the parties under a work contract are of a reciprocal nature (Article 328 of the Civil Code of the Russian Federation), within the framework of which the contractor is obliged to perform work on the terms stipulated by the contract and deliver the result to the customer, and the customer is obliged to accept and pay for the result of such work.
According to paragraph 1 of Art. 711 of the Civil Code of the Russian Federation, the customer is obliged to pay the contractor the agreed price after the final delivery of the work results, provided that the work is completed properly and within the agreed time frame.
By virtue of Art. 721 of the Civil Code of the Russian Federation, the quality of the work performed by the contractor must comply with the terms of the contract, and in case of deviation from this requirement, the obligation is considered to be performed improperly.
By virtue of Art. 15 of the Civil Code of the Russian Federation, a person whose right has been violated may demand full compensation for the losses caused to him, unless the law or contract provides for compensation for losses in a smaller amount. Losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (real damage), as well as lost income that this person would have received under normal conditions of civil circulation if his right was not violated (lost profits).
To bring the guilty person to civil liability in the form of compensation for damages, the plaintiff must prove the existence of an offense, including the presence of harm, the illegality of the behavior of the harm-doer, the causal relationship between the unlawful behavior of the harm-doer and the resulting harm, and the guilt of the harm-doer.
The identified defects in the product were eliminated using the efforts and means of the Plaintiff, as a result of which the Customer incurred losses in the total amount of 100,000 rubles.
The amount of the Contractor's losses is confirmed by planned calculation No. 55/66 and an advance report on travel expenses.
Ref. letter No. 0000410 dated July 15, 2017. The Plaintiff sent a claim to the Defendant demanding compensation for damages. The defendant left the claim unanswered.
Based on the above and guided by Art. Art. 15, 309, 310, 702, 711, 721 Civil Code of the Russian Federation, clause 1, art. 171 Arbitration Procedure Code of the Russian Federation,
I ask the court:
- To recover from the Defendant in favor of the Plaintiff the amount of: 100,000 (One hundred thousand) rubles compensation for losses in the form of actual damage.
- To recover from the Defendant in favor of the Plaintiff legal expenses for payment of the state duty in the amount of: 4,000 (Four thousand) rubles.
Application:
- Power of attorney w/n dated July 15, 2017;
- A document confirming payment of the state duty;
- A copy of the certificate of state registration of the Plaintiff as a legal entity;
- Extract from the Unified State Register of Legal Entities for the Plaintiff;
- Extract from the Unified State Register of Legal Entities for the Defendant;
- Documents confirming the sending to the Defendant a copy of the statement of claim and the documents attached to it, which the Defendant does not have;
- Documents confirming the Claimant’s compliance with the claim procedure;
- Documents confirming the circumstances on which the Claimant bases his claims.
Sincerely, Representative by proxy _____________ Rusin A.A.
Limitations on Damages
Guaranteed freedom of contract allows citizens to enter into contracts on any terms, as long as these terms do not contradict the law. Thus, limitation of damages is possible either by the terms of the contract or by the law itself.
Certain branches of law limit the amount of liability for damage. For example, compensation for losses by an employee should not exceed his average monthly earnings. Even if the contract specifies a different amount of compensation for damages, the mandatory rule of law will apply.
Also, the amount of damages may be specified in the contract itself. For example, damages caused are subject to compensation, but not more than 10% of the amount under the contract. Or the amount of compensation may be specified as a fixed amount. Also, contractual obligations often separately limit the type of losses subject to compensation - compensation only for actual damage.
Exemption from damages
A person whose actions or inactions caused damage may be released from liability and compensation for damages if they can prove the absence of intent to cause damage and provide evidence of due diligence in performing their actions.
Also, a criterion influencing the release of a person from compensation for losses is force majeure. This criterion is difficult to prove and must have such aspects as inevitability, extremeness, exclusivity, the fact that the parties could not foresee the occurrence of these consequences in their activities. These circumstances may include natural phenomena (such as floods, earthquakes), various military operations, mass diseases, etc.
In addition, after the force majeure circumstances have ended, the debtor must begin to fulfill his obligation. If it is impossible, he is obliged to notify the counterparty about this.
Conditions for indemnification
Damage can be expressed in two forms - material and moral. Material damage is of a property nature, i.e. for example, situations related to damage to private property or refusal to transfer something under a contract (For example, the most common case arises with debt obligations - a claim for the collection of funds is a constant issue for consideration in court). Based on judicial practice, we can conclude that bona fide compensation for losses caused by the guilty party is extremely rare. Often, citizens and organizations have to compensate for damage in court, with the involvement of qualified lawyers.
Recovery of moral damages as a separate type of damage to health and personality:
As statistics show, the most common claims are for the recovery of moral damages, and there is extensive practice of such legal situations, for example, in the matter of recovery of moral damages and material damage caused to health in an accident. Moral damage is non-property in nature, it includes violation of human rights in the field of business reputation, as well as such terms as honor and dignity, or the infliction of mental harm to the victim by the actions of the guilty person.
The amount of compensation for moral damage depends on the amount of harm caused by the actions of the perpetrator, the category of private rights and freedoms that were damaged. Compensation for moral damage is the most difficult matter; this issue has many pitfalls, and legal intervention cannot be avoided here; this will greatly increase the likelihood of successful recovery. Based on practice, it is clear that the court’s assessment of moral damage occurs at a maximum of 10% of the amount requested by the plaintiff.
There are also statistics according to which indicators for the recovery of moral damages are increasing in a positive direction. An important role in resolving such situations is played by the business reputation, integrity, professionalism and business qualities of a lawyer. It is advisable to have a good evidence base on the fact of causing moral damage; if it is available, the likelihood of effective recovery increases.
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