A person's admission to work is carried out only after the conclusion of an employment contract.
The limited Liability Partnership "S.K. Kaishibayev Institute of Neurology" (hereinafter – the Institute of Neurology) filed a lawsuit against H. for the recovery of monetary amounts, according to the counterclaim of H. to the Institute of Neurology for the collection of wage arrears, penalties for the period of delay in payment of wages, in total in the amount of 3,862,046 tenge, the obligation to make entries in the employment record book for employment from February 1, 2017 to the position of chief physician, and the termination of the employment contract on the initiative of the employee. By the decision of the Almaly district Court No. 2 of Almaty dated December 21, 2018, the claims of the Institute of Neurology were satisfied. It was decided to collect 420 000 tenge from H. in favor of the Institute. In satisfaction of X's counterclaim. refused. By the decision of the judicial Board for Civil Cases of the Almaty City Court dated March 18, 2019, the court's decision was changed, in terms of satisfying the claim of the Institute of Neurology, it was canceled with the issuance of a new decision to dismiss the claim in this part. Regarding the refusal to satisfy the claim of H. The court's decision was overturned, with a new decision on partial satisfaction of the claim in this part. It was decided: To recover from the Institute of Neurology in favor of H. wage arrears in the amount of 2,997,408 tenge, a fine in the amount of 50,000 tenge; Oblige the Institute of Neurology to add X to the workbook. records of employment from February 1, 2017 as chief physician and termination of the employment contract at the initiative of the employee; Collect a state fee in the amount of 92,922 tenge from the Institute of Neurology to the state revenue.
A person's admission to work is carried out only after the conclusion of an employment contract.
In the petition, the representative of the Institute of Neurology asks to cancel the decision of the court of appeal due to violations of substantive and procedural law, while upholding the decision of the court of first instance. The Judicial Board for Civil Cases of the Supreme Court upheld the decision of the appellate instance on the following grounds. It follows from the case file that on December 27, 2016, K., S., D., N., and H. signed a founding agreement on the establishment of the S.K. Kaishibayev Institute of Neurology LLP. On January 18, 2017, the Institute of Neurology and Kazakh Medical University of Continuing Education JSC (hereinafter referred to as the University) signed a joint operation agreement (hereinafter referred to as the Agreement). In satisfying the requirements of the Institute of Neurology and rejecting H.'s claim, the court of first instance proceeded from the fact that, under the Contract, the University could hire the Institute's specialists for no more than 0.5 percent of the rate. In turn, at the Institute of Neurology, paid positions can only be held by the heads of University departments, to which X. not related. X. She was employed full-time at the University, so she could not carry out full-time paid work at the Institute of Neurology, but at the same time, as a founder and under the terms of the Contract, she could stay at the Institute of Neurology and provide free advice. By changing the court's decision, the court of appeal reasoned that the fact of an employment relationship between the parties was confirmed by orders, pension contributions, which the director of the Institute of Neurology could not have been unaware of, as well as information that the plaintiff submitted to obtain a license. According to paragraph 6 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No. 9 "On certain issues of the application of legislation by courts in resolving labor disputes", in accordance with Article 33 of the Labor Code, a person is allowed to work only after the conclusion of an employment contract. In case of absence and (or) failure to properly formalize an employment contract due to the fault of the employer, he is liable in accordance with the procedure established by the laws of the Republic of Kazakhstan. In this case, the employment relationship is considered to have arisen from the day when the employee actually started work. The nature of the employment relationship may be evidenced by circumstances when an employee personally performs work (labor function) according to a certain qualification, specialty, profession or position, subject to labor regulations, and the employer pays him wages for work. The fact of the emergence of an employment relationship between the Institute of Neurology and X. since February 1, 2017, has been established by the totality of evidence examined in court. Thus, the Contract dated January 18, 2017 does not contain provisions on the implementation of activities by University employees or employees of the Institute of Neurology on a gratuitous basis. From the content of the Contract, it can be seen that University employees can work in the clinical bases of the Institute of Neurology, and the implementation of labor details provides for remuneration in accordance with the labor legislation of the Republic of Kazakhstan. The court of first instance did not take into account that the Agreement on Joint activities between the Institute of Neurology and the University was concluded on January 18, 2017, whereas Kh. was hired at the University on September 4, 2017, and she had been working and consulting at the Institute of Neurology since February 1, 2017, that is, 7 months before. how she was hired at the University.
A person's admission to work is carried out only after the conclusion of an employment contract.
This circumstance indicates that x. She worked at the Institute of Neurology before signing an agreement with the University. The courts have established that x. She has been working at the Institute of Neurology since February 1, 2017, and only in September 2017 was she hired at the University on a part-time basis, and since that time pension contributions have been made by the Institute of Neurology based on a monthly salary of 150,000 tenge, whereas before that time pension contributions were made by the Institute of Neurology based on a monthly salary salary in the amount of 300,000 tenge. According to the terms of the Joint Activity Agreement, part-time work of scientific and pedagogical staff of the University is allowed in the clinical bases of the Institute of Neurology, the purpose of their cooperation is to ensure the quality of medical services by attracting qualified scientific and pedagogical staff of the University. In addition, the court of first instance did not give a legal assessment to the documents confirming the fact of X's employment. at the Institute of Neurology. From the original business trip order No. 4 dated November 21, 2017, it can be seen that H., the chief medical officer, is on a business trip to the Netherlands for a period of 3 days from December 14 to December 17, 2017. From the letter to "T" LLP, signed by the Director of the Institute of Neurology dated April 27, 2018 No. 4, it follows that X. He is the chief physician of the Institute of Neurology and is being sent to participate in the international congress. These circumstances indicate that the Institute of Neurology referred H. on various business trips, not as a founder, but as an employee of the Institute. Further, the fact of employment at the Institute of Neurology is confirmed by the outpatient registration journal.
A person's admission to work is carried out only after the conclusion of an employment contract.
patients who were treated at the reception of patients, where it is indicated that the reception is carried out on a fee basis, indicating the cost of admission. From the response of the KSU "Department of Entrepreneurship and Industrial Innovation Development of Almaty city" dated December 19, 2018, it can be seen that when the Institute of Neurology received the appendix to the State License for Medical Activities dated April 3, 2017. She was a full-time employee. This circumstance confirms the existence of an employment relationship between the parties. Thus, in the totality of the above circumstances, the court of appeal made a legitimate conclusion to dismiss the claim and to satisfy the counterclaim. b.
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