Case 2: “Apprentice cook”

Created on 21 January 2015

Problem:
Having the qualification of a cook, M. addressed to the local bar to be employed initially as a scullion. Working in this position illegally with her agreement, M. also performed the work of waiter - barmen for a small supplement to her salary. Selling alcoholic beverages to customers she was the main suspected person for the lack of a quantity of alcohol intended for sale. Waiting for the end of the week without requiring explanations or arguments the patron detained the amount of about 30% of her small salary for the missing goods. M. could not demonstrate that she was not involved in this fraud.

Her „older” colleagues working in this bar have "whispered" her that this action is a strategy frequently used by the patron to compensate her modest income from her business that is less desired in the locality. Moreover, female employees are forbidden to discuss among themselves on the mistakes made within the work, including any subjects related to the patron.

Solution:
In accordance with article 333 of the Labour Code, the employee is obliged to compensate the material damage caused to the employer if the labour code or other normative acts don't foresee otherwise. In determining material liability, the damage to be repaired does not include lost profit by the employer as a result of the act committed by the employee. If the material damage was caused to the employer by an act that encompasses the signs of corpus delicti, liability is determined according to the Criminal Code.

However, according to art.342 and 343 of the Code, until issuance the order (provision, decision, judgment) on compensation for material damage by the concerned employee, the employer is required to carry out an internal investigation to determine the size of material damage caused and the causes of its appearance. For the investigation, the employer has the right to create, by order (provision, decision, resolution), a committee with the participation of specialists in the field. To determine the causes of material damage it is obligatory to request a written explanation from the employee and if he refuses to present, it will be registered in the minutes signed by a representative of the employer and concerned employees.

Withholding the amount for the material damage that does not exceed the average monthly salary from the guilty employee is made by order (disposal, decision) of the employer, which must be issued within one month from the day of assessing damage size. If the amount of the material damage that is to be retained from the employee exceeds the average monthly salary or if it was missed that period, the withholding is done according to the decision (judgment) of the court.

If the employer does not comply with the established way for compensation for material damage, the employee is entitled to apply to the court. Moreover, in case of divergences on how to repair the material damage, the parties are entitled to appeal to the court within one year from the day of determination the damage size.