It happens, quite often, that employers are faced with not being able to recover the value of damages made by employees. For this reason, it is good to know that there are some measures that can be taken so that the employer will not be damaged and not be forced to overlook facts or, even more than that, to be in a position to violate legislative provisions.
According to art. 254, para. (1) of Law no. 53/2003 – Labor Code republished, employees shall be liable with respect to patrimony, according to the norms and principles of contracting civil liability, for the material damages caused to the employer because of their fault and in relation to their work.
In other words, for an employee to be held liable must be fulfilled several conditions as follows:
- the person who caused the damage has to be employee of the injured employer, respectively between parties (employee – employer) to exist a individual labor contract governing labor relations;
- to exist a damage created in employers’ patrimony;
- to be proven the illicit nature of employee’s deed, committed in connection with his/her work;
- to be a causal link between the illicit deed and the damage caused;
- to be proven employee’s guilty.
In accordance with art. 254, para. (2) of the Labor Code, employees cannot be held responsible in case of damage caused by force majeure or other unforeseen causes which could not be removed and either of damage falling within the normal risk of service.
To recover the damage caused by employees, currently, the employer has within reach, the following ways/solutions:
- by mutual agreement (the parties agreement)
- by judicial process (court action)
Thus, according to art. 254, para. (3) of the Labor Code, if the employer finds that his employee has caused a loss by fault and in connection with his/her work, the employer may request to the employee, in a note of ascertaining and assessing the damage, to recover the value of damages, by parties agreement, within a period which shall not be less than 30 days of notification.
The value of damages recovered by parties agreement, however, cannot be greater than the equivalent of five gross minimum salaries in the economy. According to GD no. 23/2013, as from 1 July 2013, the gross minimum base wage guaranteed in payment is 800 lei, therefore as a result, currently, the value of damages recovered by the parties does may not exceed 4.000 lei.
Should be noted that the employer is not obligated to try to recover damages amicably, but may directly sue the employee. Of course, this is recommended if the employer wants to recover damages exceeding 4.000 lei (the maximum limit allowed through parties agreement).
Thus, it is recommended that, when the employer finds that was committed a prejudice, to draw a note of ascertaining and assessing the damage that occurred, with attached supporting documents, following then, to notify the employee.
If the employee admits his/her guilt of breach of duties that led to the injury of employer, and parts reach to an agreement for returning the value of the damage, then mutual agreement must be recorded in writing and signed by both parties (employer and employee). The document stamped and signed by the employer, must also be dated and have the registration number given by the employer.
It is very important that, if the parties reach to an agreement, this should be recorded in writing in a document showing the following:
- employee admits his/her guilt on property damage caused to employer;
- details of the damage caused (detailed description of the situation/damage);
- assessing damage/damage value;
- damage recovery method (eg: a single payment or installments at wages payment date or another mutually agreed date).
If the employee does not plead guilty and therefore unwilling to reach agreement with the employer to reimburse the value of the damage, then the employer may apply to the courts to recover the damage caused by the employee.
It should be noted that in this case, the burden of proof is of the employer, who is required to submit the necessary evidence in his defense.
A very important aspect, to be noted, is that in order to establish employee’s guilt, the employer must first establish clear roles and responsibilities, employee rights and obligations relating to the employment, in the individual employment contract, job description, in the Organization and functioning regulation, Internal regulation and, where appropriate, in the applicable Collective labor contract.
Job description is a very useful management tool that enables the management of employee – employer relationship, which may be used as evidence in any labor disputes or disagreements between the parties.
Job description should include as many details regarding job specific work tasks, duties and responsibilities required for smooth running of business.
According to art. 17, para. (3), point. d) of the Labor Code, the employer is obliged, prior to the conclusion or modification of employment, to draw up job description and inform the candidate/employee about job specific tasks.
In case of court action, the employer must take into account that, the demand for work dispute resolution should be addressed to the competent court within whose jurisdiction is the seat or domicile of the plaintiff/employer.
It should be remembered that, in accordance with art. 169 of the Labor Code, No amount may be withheld from the wages, except for the cases and under the circumstances stipulated by the law. No amounts may be withheld as damages caused to the employer unless the employee’s debt is due, liquid and exigible, and has been found as such by a court decree which is final and irrevocable.
According to art. 257 of the Labor Code, the amount established for covering damages shall be withheld, in monthly installments, from the wages due to the person in question by his/her employer. Installments shall not exceed one third of the net monthly wages, and shall not exceed, along with the other possible amounts withheld from the person in question, one half of those wages.
If labor relation with the employee ceases, a handy tool for employer is the liquidation note. The liquidation note confirms that the employee has no outstanding debt to company or has surrendered all assets owned in use during the employment.
Although, there is no obligation in issuing this document, the employer must take into account that by drawing the liquidation note can be recorded all debts that the employee has with the company, and if it is sued the employer may use this document as conclusive evidence.
Liquidation note shall be drawn in two copies, one for employee and the other for employer. The document should be signed and stamped by the employer, and make it known to employee, through signature.
In accordance with art. 258 of the Labor Code, if the individual labor contract is terminated before the employee has indemnified the employer and he/she becomes employed by another employer or becomes a civil servant, the due amounts shall be withheld from his/her wages by the new employer or new institution or public authority, as applicable, based on an executory title transmitted to this effect by the employer having suffered the damage
If the person in question has not been hired by another employer, based on an individual labor contract or as a civil servant, the damage shall be covered by foreclosure of his/her assets, under the Civil Procedure Code.
If the damage may not be covered by means of the amounts withheld from wages within a delay of no more than 3 years from the date the first withheld installment was made, the employer shall be entitled to call on a court executor under the Civil Procedure Code, as required by art. 259 of the Labor Code.
