Employee's refusal to continue the employment relationship as an independent basis for termination of the employment contract
Plaintiff P.V.V. appealed to the Almaty District Court of Astana with a claim against KAZINTERASTYK LLP, arguing that from February 23, 2015 to January 25, 2016, in accordance with employment contract No. 7 dated February 23, 2015, she was in an employment relationship with the defendant.
Additional agreements to contract No. 1 and No. 2 have consistently changed and supplemented the working conditions, namely, the amount of wages. On January 08, 2016, after receiving a notification of a change in working conditions - a reduction in wages from 306,000 tenge to 100,000 tenge, she expressed her disagreement, which she signed in the notification. As a result of disagreement with the notification received, the employment contract has been terminated. She believes that one of the reasons for the termination of the employment relationship was her pregnancy, which the employer was notified about on December 24, 2015. She asked to recognize the order on termination of the employment contract No. 5 dated January 25, 2016 as illegal, reinstate her as deputy chief accountant and collect wages for the period from January 25 to April 18, 2016 in the amount of 79,0019 tenge.
The lawsuit was partially satisfied with the decision: the order to terminate the employment contract No. 5 dated January 25, 2016 was declared illegal; Primak V.V. was reinstated as Deputy Chief Accountant of KAZINTERASTYK LLP; wages for forced absenteeism from January 25 to April 18, 2016 in the amount of 280954 tenge were recovered from the defendant in her favor.
The judicial board, in accordance with paragraph 1, subparagraph 4) of Article 427 of the CPC, changed the court's decision due to improper application of substantive law. The court of first instance, having correctly established the circumstances of the case, and having made the correct conclusion about the change in working conditions in KAZINTERASTYK LLP, mistakenly regarded the termination of the contract with P.V.V. as having occurred on the initiative of the employer, applying the provisions of art. 54 of the Labor Code.
It can be seen from the case file that on February 23, 2015, KAZINTERASTYK LLP and P.V.V. signed an employment contract. Additional agreements dated June 22 and September 1, 2015 improved the terms of the employment contract regarding the position and remuneration.
On January 8, 2016, P.V.V. was served with a notice of changes in working conditions, with which she expressed disagreement. By Order No. 5 of January 25, 2016, the employment relationship was terminated on the basis of subparagraph 2 of paragraph 1 of Article 58 of the Labor Code, in connection with the employee's refusal to continue working due to changes in working conditions.
The Court of first instance was guided by the provisions of article 54 of the Labor Code, which provides for restrictions on the possibility of termination of an employment contract at the initiative of the employer.
At the same time, by virtue of article 49 of the Labor Code, an employee's refusal to continue an employment relationship is provided for in subparagraph 2 of paragraph 1 of article 58 as the basis for termination of an employment relationship, i.e. it is an independent basis for termination of an employment contract. It cannot be equated with cases of termination of an employment contract at the initiative of the employer.
The plaintiff's arguments that there were no actual labor changes in the LLP are refuted by the following. In accordance with Article 46 of the Code, in connection with changes in the organization of production related to the reorganization or change of economic, technological, working conditions and (or) a reduction in the amount of work of the employer, it is allowed to change the working conditions of the employee while continuing to work in accordance with his specialty or profession, appropriate qualifications.
According to subparagraph 17 of paragraph 1 of the Code, the concept of working conditions includes the terms of his payment. From the contents of the minutes of the extraordinary general meeting of LLP participants dated December 11, 2015, it can be seen that the financial situation of the LLP has deteriorated, one of the decisions taken is the abolition of positions, a downward revision of official salaries. The deterioration of the partnership's financial condition is confirmed by financial documentation, in particular, the balance sheet, and an economic analysis. This decision was made by a unanimous decision of the two founders, who each own a 50% stake in the authorized capital of the partnership, so the legitimacy of the decision is beyond doubt. The actual change in wages is confirmed by the staffing table approved by the order dated January 05, 2016. Thus, the plaintiff's argument that the reason for the dismissal is her pregnancy is refuted by the fact that the salary changes affected not only the deputy chief accountant, but also the chief accountant and the accountant. The employer's obligation to notify employees of changes in working conditions is fulfilled in compliance with the requirements of article 46 of the Code.
The Court of Appeal reversed the decision in the satisfied part of the claim and dismissed the claim.
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