Ukrainian Supreme Court prevented the bank from recovering the shortage from the cash collector

On October 23, 2019, the Supreme Court of Ukraine in case No. 522/6582/16-c published a legal conclusion regarding the wrongness of the bank, which was collecting funds to pay off the loan debt under a non-existent loan agreement.

Details of the proceedings

A citizen-former employee of the bank went to court with a claim against the bank to recover the funds received without reason by the latter. The motivated statement of claim was as follows:

• the plaintiff worked in the bank as a driver-security guard-collector;
• there was a shortage of funds in one of the branches;
• the bank “hung up” this shortage on the plaintiff and began to write off from his salary account;
• the write-off was carried out on base as “repayment of debt under a loan agreement”;
• since the plaintiff did not enter into a loan agreement with the bank, he considers that the write-off was unreasonable;
• therefore, the money must be returned, since it is his salary.

The plaintiff stated in court that he was not guilty of the loss of the safe package, therefore the money from him, as compensation for damage, was illegally debited!

The court of first instance dismissed the claim, pointing out to the plaintiff the existence of an employment relationship between him and the bank, in particular, enshrined in an agreement on full liability, which “allowed” the bank to enforce the recovery from the employee. The appeal court agreed with this!

“The cassation instance“ represented by the Supreme Court decided the issue in a different way! The circumstances of the incident were investigated in more detail and the fact of the absence of a loan agreement was objectively assessed as a basis for writing off funds from the plaintiff.”

The following was found out:

1. The transportation of money, in which the plaintiff participated, was carried out collectively, which makes it impossible to establish the individual responsibility of each of the driver-collectors.
2. Clause one logically assumes that the controversial funds could be recovered on the basis of an agreement on collective (brigade) material liability.
3. The specified agreement is absent in the case materials, therefore, the decisions of the courts of the previous instances to recover the bank’s losses are based on the lack of proof of the plaintiff’s guilt.
4. The official investigation in the bank ended with the fact that “the shortage was probably the fault of the drivers,” and the final decision had to be made after the conclusions of the polygraph.
5. The plaintiff was dismissed from his post due to a loss of confidence, but before this happened, money was written off from his salary to pay off non-existent credit debt.

These circumstances “speak” that the funds were written off illegally, since there is no loan agreement, therefore, the loan was not provided and the plaintiff’s obligation to pay for it simply does not exist in nature!