An employee's liability for damage arises only if all the prerequisites for liability, including fault, are met. In connection with an unlawful act, this will involve a breach of duties laid down by legal regulations, the employment contract and so on. However, an employee who caused the damage by intentional conduct contrary to good morals will also be liable. Under § 179(2) of Act No. 311/2001 Coll., the Labour Code, as amended (hereinafter the "Labour Code"), "an employee is also liable for damage caused by intentional conduct contrary to good morals."[1]
Under § 179 of the Labour Code, cases of an employee's liability for damage are assessed where the damage arose from the employee's culpable breach while performing work tasks or in direct connection with them, and are not governed by another special provision of the Code. The employer is obliged to prove not only the occurrence of the damage and the unlawfulness of the employee's conduct, but also the fault and the causal link between the occurrence of the damage and the employee's unlawful conduct. For the employee's liability to arise, all the liability prerequisites must be met, including:
- an unlawful act,
- the occurrence of damage,
- a causal link between the unlawful act and the occurrence of the damage,
- the employee's fault,
- the existence of an employment relationship,
- the damage must occur while performing work tasks or in direct connection with such performance, as defined by the Labour Code.
An unlawful act is an act that is contrary to objective law. "Damage is a pecuniary harm expressible in money, whereby actual damage consists in the real diminution of the injured party's assets and represents the property values that must be expended to restore the previous state."[2] The burden of proving the occurrence of the damage as well as its amount lies with the employer. The causal nexus is a further liability prerequisite. There must be a causal link between the damage that has arisen and the unlawful act. Fault is a subjective legal category, because it expresses the wrongdoer's internal mental relationship to the outcome of their conduct. Fault may take the form of intent or negligence. In labour-law liability, the form of fault, in my opinion, substantially affects the extent of the compensation for damage. To establish the employee's liability, in which an unlawful act need not be present, it is enough that a conflict with good morals exists; fault in the form of intent must exist on the part of the employee.
The employer's liability is strict liability regardless of fault. In the case of the employee, it is subjective liability, because its establishment requires the presence of fault as a subjective liability prerequisite. All of the general liability prerequisites listed above, and their presence, are not sufficient to establish labour-law liability. For labour-law liability to exist, two further special liability prerequisites must also be present, namely:
- the existence of an employment relationship, and
- the damage must occur while performing work tasks or in direct connection with such performance.
"The content of the concept of performing work tasks, or a direct connection with the performance of work tasks, most often decides in practice whether labour-law or civil-law liability arises in a given case."[3] If the damage was also caused by the employer, the employee is obliged to pay a proportionate part of the damage according to the degree of their fault.
In the case of agreements on work performed outside an employment relationship, the employee is liable to the employer for damage caused by a culpable breach of duties in the performance of the work or in direct connection with it, in the same way as employees in an employment relationship. Under § 225 of the Labour Code, "an employee is liable to the employer with whom they concluded an agreement under § 223 for damage caused by a culpable breach of duties in the performance of the work or in direct connection with it, in the same way as an employee in an employment relationship."[4]
An employee's liability for damage is subjective liability; therefore an employee affected by a mental illness is liable for the damage they caused only if they are able to control their conduct or assess the consequences of their conduct. This mental disorder may be only temporary in nature; it need not be permanent. "Nor is it decisive whether the employee has been deprived of legal capacity or whether their capacity for those acts has merely been restricted by a court."[5] What is essential is always, in the given specific case, to establish the type and degree of the employee's mental disorder and its effect on their ability to control their conduct and assess its consequences. An employee's mental incapacity may also arise, e.g., from the consumption of alcohol, medicines or intoxicating substances, or narcotics. The law therefore distinguishes whether this occurred through the employee's own fault or without their fault. Where an employee, through their own fault, puts themselves into a state in which they are not able to control their conduct or assess the consequences of their conduct, they are liable for the damage they caused in that state. Under § 180 of the Labour Code, "an employee affected by a mental disorder is liable for the damage they caused only if they are able to control their conduct and assess the consequences of their conduct. An employee who, through their own fault, puts themselves into a state in which they are not able to control their conduct or assess the consequences of their conduct is liable for the damage caused in that state."[6]
An employee is not liable for damage they caused while averting damage threatening the employer, or a danger directly threatening life or health, if they did not intentionally bring about this state themselves and if, in doing so, they acted in a manner appropriate to the circumstances (§ 181(2) of the Labour Code). The employee need not be successful in averting the damage, i.e. their conduct need not actually avert the damage. It is, however, necessary that their activity objectively aims to prevent the occurrence of the damage, or its further spread or increase. It may concern any damage that threatens the employer, so it is not required to be only the imminent, directly threatening damage that the Labour Code presupposes when averting a danger threatening life and health. This danger may directly threaten the life or health of any person – a fellow employee, or a third party outside the employer.
In both of the above cases, the employee is not liable for damage if two conditions are met at the same time, namely:
- they did not intentionally bring about the threat or danger themselves,
- in averting the damage they acted in a manner appropriate to the circumstances.
The appropriateness of the employee's conduct must always be assessed solely according to the specific circumstances of the given case.
A further circumstance excluding liability for damage is business risk, because an employee is not liable for damage arising from business risk. Under § 181(3) of the Labour Code, "an employee is not liable for damage arising from business risk."[7] The concept of business risk is not further defined in labour-law regulations. The Labour Code – Act No. 65/1965 Coll. – used the term economic risk, but this term was likewise not defined in labour-law regulations. According to the explanatory memorandum to the draft Labour Code of 1965, what economic risk was should have been decided by the head of the organisation in accordance with principles laid down by the central bodies; however, throughout the entire period of effect of the 1965 Labour Code, the central bodies never issued these principles. The explanatory memorandum understood economic risk very narrowly. "According to it, this concerned mainly damage and losses arising from minor oversight or inattention and not exceeding a specified percentage of products, and damage caused during trial production."[8] Such an understanding of risk is, in my opinion, too narrow and does not more comprehensively capture the issue of risk.
In general, however, the concept of risk can be understood as a certain danger, the possibility of the occurrence of damage or loss. In the labour-law context, risk can in principle be divided into:
- risk related to decision-making, and
- risk arising from the performance of certain work itself.
In labour-law literature and case law, attention has so far been devoted primarily to risk in the performance of work, or in sales in commercial enterprises. Here the content of risk is expressed by the so-called standards of non-culpable losses, which have the nature of a presumption in the sense that damage not exceeding the maximum limit of the standard arose without fault, through the natural depletion of goods or from other objective causes. This presumption is, however, significant only until the contrary is proven (R 12/1976).
From case law - Collection of Court Decisions and Opinions R 12/1976
A deficit (shortfall) expresses the fact that values are missing which the materially liable employee is obliged to account for. A deficit is therefore a specific type of damage. It is damage to values received for accounting after an inventory has been carried out, consisting in the difference between the actual state of the entrusted values and the correct figures of the accounting records, by which the actual state is lower. An essential feature of a deficit is that goods are missing, by the value of which the physical state is lower. "If an employee has taken over, on the basis of an agreement on material liability, entrusted cash, valuables, goods, stocks, materials or other values that they are obliged to account for, they are liable for the deficit that has arisen. A deficit is not damage arising from the incorrect revaluation of stocks of goods."[9] The employee is liable for such damage where they breached the duties imposed on them in connection with the valuation of stocks. Nor is damage arising from the damaging or complete devaluation of goods a deficit. This is because the essential feature of a deficit is not met; the goods are not missing but are located at the employer's, even if damaged or completely devalued. In the case of damaging or complete devaluation of goods, the employer must prove that the employee was at fault for the damage.
The employer may therefore also claim compensation for a deficit permissible under the standard if it proves that the permissible deficit was caused by the employee's fault. The standard of non-culpable losses is set as an aggregate amount expressed as a certain percentage of retail turnover and expresses the potentially possible extent of losses, the actual amount of which always depends on the specific circumstances, above all on the type and turnover rate of the goods, the proportion of packaged and unpackaged goods, etc.
A particular problem is the assessment of risk arising from decision-making, of decision-making about risk and of the admissibility of risk. There is no legal regulation for these questions. "The relevant criterion in assessing liability for damage arising from business risk should above all be the fact that it is not culpable damage."[10] It does not follow from § 181(3) of the Labour Code that the definition of the concept of business risk in a specific case would depend solely on the employer itself. In the event of a dispute, the question of whether a specific case involved business risk may be assessed by the competent court.
In labour-law theory, opinions on the classification of an employee's liability for damage are not uniform, chiefly because of differing classification criteria. "From the perspective of the prerequisites of liability, and given the construction of the individual prerequisites of liability, the key criterion is fault."[11] Therefore, in my opinion, it is appropriate to classify an employee's liability for damage into liability with proven fault, i.e. with the presumption of innocence – also referred to as general liability in the broader sense – and liability with the presumption of fault – also referred to as special liability. The differentiation of liability for damage further depends on additional specific prerequisites, such as, e.g., an agreement on material liability under § 182 of the Labour Code.
...The full text of the article can be found in the attachment.
[1] § 179(2) of Act No. 311/2001 Coll., the Labour Code, as amended
[2] Barancová H., Zákonník práce Komentár (Labour Code Commentary), 5th revised and supplemented edition, Sprint, 2007
[3] Barancová H., Zákonník práce Komentár (Labour Code Commentary), 5th revised and supplemented edition, Sprint, 2007
[4] § 225(1) of Act No. 311/2001 Coll., the Labour Code, as amended
[5] Barancová H., Schronk R., Pracovné právo (Labour Law), Sprint, 2007
[6] § 180 of Act No. 311/2001 Coll., the Labour Code, as amended
[7] § 181(3) of Act No. 311/2001 Coll., the Labour Code, as amended
[8] Barancová H., Schronk R., Pracovné právo (Labour Law), Sprint, 2007
[9] Collection of Court Decisions and Opinions R 12/1976
[10] Barancová H., Schronk R., Pracovné právo (Labour Law), Sprint, 2007
[11] Jendrálová, A., Náhrada škody v pracovnom práve (Compensation for Damage in Labour Law), Práca, 1999