O payroll deduction for damages and malfunctions often impacts the relationship between company and employee. After all, no one is happy to learn that they will receive discounts on their salary at the end of the month.
However, in fleet operation these situations are still recurrent, mainly due to the characteristics of service provision and the environment in which activities are carried out — traffic.
Thus, there is an enormous potential for risk, both for the safety of the people involved and for the company's assets.
According to data released in 2020, by the Institute of Applied Economic Research — IPEA, traffic accidents in Brazil kill about 45 people per year, leave others 300 thousand with serious injuries and cost BRL 40 billion for Brazilian society.
However, it is still common to have doubts about the possibility of the company making discounts for damages caused by the employee during the fulfillment of his duties.
Therefore, we gather the main information so that you can make more accurate decisions in these situations.
Continue reading and check it out:
How to know if the employee acted with guilt?
What is the maximum amount that can be deducted from payroll?
Are payroll deductions legal?
First, according to CLT Law — Consolidation of Labor Laws, when the damage is caused by the employee, the discount will be allowed, provided there is a pre-established provision in the contract.
However, in the absence of prediction, the discount will be legal only if there is proof of the employee's intention.
Thus, payment discounts are legal, but there are some requirements that must be observed so that they are not considered illegal.
Also read: Traffic safety: importance of safe driving culture in fleet management
On the other hand, when we talk about the collaborator's intention, there is a need to prove this hypothesis and that is the difficulty. Remembering that whoever makes the claim of intentional damage needs to prove this claim.
When the loss occurs without the employee's intention, it is also possible to proceed with the discount. However, it is absolutely this possibility has to be adjusted in the contract.
It's what the Law 229 of 28.2.1967 says when it determines that “the discount will be lawful, as long as this possibility has been agreed upon”. Therefore, there must be a signed contract in which such an eventuality is foreseen.
So, in short: if the employee intentionally caused the damage, the deduction can be made regardless of other formalities.
However, if he didn't have the "intention" to cause the damage, to be considered legal, the company, in addition to having to prove this guilt, will have to have a signed contract where there is a forecast of the possibility of payroll deduction.
How to know if the employee acted with guilt?
“Guilt” refers to cases in which the employee, although not wanting to cause harm, either by imprudence, malpractice or negligence and ends up allowing injury to the company's assets.
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Malpractice and recklessness are acts, that is, the employee commits a reckless action in violation of any law or rule that he should observe.
So, in the case of malpractice, the employee commits an act that is not consistent with the necessary care to carry out his/her function. Negligence is an omission.
Thus, the employee should have taken a precautionary measure, but negligently failed to do so and, as a result, the accident occurred.
Thus, to confirm or not the employee's guilt, it will always be necessary to careful analysis of each case.
For example, let's say the driver is driving on the road and a pebble falls off the vehicle ahead and damages the windshield.
Can we say that the employee is to blame for this situation? If so, is this a case of negligence, recklessness or malpractice?
In this case, it would be very complex to try to prove guilt.
In a possible labor lawsuit, with a large margin of certainty, the company would be obliged to return the deducted amounts, as this type of damage is part of the risk inherent in the employer's economic activity.
On the other hand, in a collision where the driver crossed a well-marked preferential street hitting another vehicle, there is a high chance that he committed this act recklessly and, therefore, with guilt.
Therefore, based on the facts presented and logically, we can deduce that the employee was at fault.
Therefore, it would be very complicated for the employee to reverse a possible payroll deduction for damages and breakdowns.
Also read: What if the employee is involved in an accident with the company vehicle? – Golfleet
Finally, it is very important for the company to always take care to keep an organized file with the maximum number of elements that can help it to constitute the evidence in court, such as:
- Reports;
- Photos of the accident and breakdowns;
- Occurrence report;
- Witness statements;
- Proof that the driver was with the vehicle at the time of the accident;
- Damage repair quotes;
- Invoice for the performance of services and parts;
- Declaration signed by the driver assuming responsibility for the accident.
All of this is valid and, in most cases, it can mean the difference between winning or losing a lawsuit.
Example of judgment in the labor court
It is interesting to analyze examples of real judgments to understand in practice the reasons that lead to both victory and defeat, allowing managers to avoid common mistakes.
Also read: Defensive Driving and Fleet Management: Preserve Lives | Golfleet
In the case below, judged by the Regional Labor Court of São Paulo, the court condemned the company to return the amounts deducted from the employee. Let's analyze the decision:
Although the employment contract signed by the plaintiff authorizes the employer to deduct from their wages any damages that may be caused by reason of their duties, the case does not show, as a condition for the discount, the existence of willful misconduct or fault on the part of the plaintiff for any damage suffered. […] the defendant was not even able to demonstrate that there were malfunctions in the vehicle driven by the plaintiff, nor that these were caused by him, even if by way of fault. Therefore, there is no support authorizing the realization of discounts, giving rise to their refund.
PROCESS No. 1000345-91.2014.5.02.0384
It is important to note that in this case the company had an employment contract that previously authorized the discount of damage caused.
However, it ended up neglecting to constitute proof that the employee acted with intent, or with guilt, and, for this reason, was condemned to return the discounts made.
The situation differs in this other decision. Detail: issued by the same São Paulo Regional Labor Court. Let's see:
[…] the plaintiff not only confirms his involvement in the misfortune, but also admits to having crashed the bus into the back of another vehicle that was stopped. […] Therefore, once the malfunction has been verified, the fault of the plaintiff (vehicle driver), due to malpractice, is presumed, since he was the one who collided with another vehicle that was stopped. Article 462, paragraph 1, of the CLT authorizes the salary deduction “in the event of damage caused by the employee [...], provided that this possibility has been agreed [...]”, which is precisely the hypothesis of the case file. Thus, I grant the appeal to exclude from the conviction the return of amounts deducted from salary due to a traffic accident.
PROCESS TRT/SP No. 1001248-60.2013.5.02.0385 – 9TH CLASS
Note that, in this decision, the company and the employee had previously signed a contract authorizing the discount of losses.
Therefore, the fault was established by the actual situation itself, considering that the driver collided with a stationary vehicle.
Thus, with the presence of the requirements required by law for the discount to be considered legal (contractual authorization and guilt), the Labor Court authorized the amounts not to be returned to the employee.
Also read: TCO & ROI: two acronyms that make the difference in fleet management
What is the maximum amount that can be deducted from payroll?
On the other hand, as the Law does not specifically deal with this issue, there are still divergent decisions in the Labor Court on the maximum monthly amount to be deducted from the payroll.
Therefore, one of the parameters used is in the item II of paragraph 2 of art. 2 of Law 10.820/2003 which establishes a maximum percentage of 40% for the total discounts authorized by the employee (those not resulting from the law).
Thus, the sum of authorized discounts (advances, loans, agreements, etc.) cannot exceed 40% of your total remuneration.
This law was originally created to regulate payroll loans to employees, but it is used by analogy.
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However, another parameter used in some Labor Court decisions is based on the sole paragraph of art. 82 of the CLT which authorizes the deduction of payroll amounts, so that, at the end of the month, the employee still receives the equivalent of 30% of his/her total remuneration.
So, according to this criterion, the company should adjust the discount allowing the net amount received by the employee to be at least 30% of their monthly earnings.
Also read: The correct application of labor penalties – Golfleet
Faced with this uncertainty, the safest suggestion would be to calculate the discount using the two formulas described above, choosing the one that is most beneficial to the employee.
How can the company reduce the level of tension with the employee in this type of incident?
Now that you know the main rules regarding payroll deductions for damages and breakdowns, there is a fundamental tip so that the relationship with the employee does not change.
Make the work and contractual rules clear, so that you and your employees avoid problems.
After all, the rules are often implied and, in this scenario, when an incident occurs, there is room for all kinds of disputes and reciprocal accusations.
However, if the role and responsibilities of everyone involved in the operation are well known and respected by all, payroll deductions, in addition to certainly becoming less frequent, will be accepted with more peace of mind.
Also read: How to prepare a fleet maintenance plan and ensure more safety in operations
Therefore, when it comes to fleet operation, greater care for assets almost always achieves another much greater and nobler objective, which is the attention that the driver has with his own safety.
In a scenario where accidents can often be fatal, all care is always very welcome.
The objective of the fleet manager must always be a zero accident rate and, for that, it is necessary to constantly work that seeks, above all, awareness of safe driving.
By doing this, the company certainly wins, the employee wins, and life is earned.
The best way to follow the behavior of drivers, to have complete and intuitive reports that help in decision making, is to have the Golfleet light fleet management system.
Count on functionalities that allow you to identify security problems, have greater control of your fleet in a simple and intelligent way, reduce costs and increase productivity.
Do you want to know how a management system can help you ensure more security e avoid problems such as payroll deduction?
So, check out how some companies leverage management results with telemetry:
