Cancellation of the order to bring disciplinary responsibility, reinstatement and recovery of wages for the time of forced absenteeism, as well as compensation for moral damage in monetary terms
The employee's labor rights were restored as a result of the elimination of violations in the application of the law. K. filed a lawsuit against the GKP "Ts" (hereinafter referred to as the GKP) for the cancellation of the disciplinary action order, for reinstatement at work and recovery of wages for the time of forced absenteeism, as well as compensation for moral damage in monetary terms. The claim is motivated by the fact that the order of October 13, 2011 to impose a severe reprimand was actually issued on October 14, 2011, when K. was on sick leave, and the disciplinary procedure was not followed. The order of November 30, 2011 on dismissal on the basis of subparagraph 13) of paragraph 1 of Article 54 of the Labor Code is unlawful, since disciplinary proceedings under the order of October 13, 2011 are illegal.
The claim was denied by the decision of the District Court No. 2 of Almaly district of Almaty dated February 23, 2012. By the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Almaty City Court dated July 24, 2012, the decision of the court of first instance remained unchanged. By the decision of the cassation judicial board of the same court dated October 04, 2012, the decision of the court of appeal was left unchanged. By the resolution of the Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan dated January 21, 2014, judicial acts of local courts were canceled, and a new decision was made to reinstate K. at a previous job with the collection of wages for the time of forced absenteeism. 1 The legal position of the Supreme Court of the Republic of Kazakhstan is set out in more detail in Resolution No. Zgp-1002-12 dated November 21, 2012.
Cancellation of the order to bring disciplinary responsibility, reinstatement and recovery of wages for the time of forced absenteeism, as well as compensation for moral damage in monetary terms
The Court of the supervisory instance pointed out that the local courts, when considering the case, rejected without substantiation the plaintiff's arguments and the evidence presented by her that the order of October 13, 2011 on disciplinary liability in the form of a severe reprimand had actually been issued on October 14, 2011, when the plaintiff was disabled. The courts did not take into account the provisions of subparagraph 1) of paragraph 5 of Article 73 of the Labor Code, according to which the imposition of disciplinary action on an employee during a period of temporary disability is prohibited. The local courts also failed to take into account that an employment contract may be terminated at the initiative of the employer if the employee repeatedly failed to fulfill his labor duties without valid reasons, having been brought to disciplinary responsibility for a previously committed violation of labor discipline in accordance with the procedure established by the Labor Code of the Republic of Kazakhstan. At the same time, an employee cannot be disciplined twice for the same disciplinary offense. It can be seen from the case file that the basis for the involvement of K. The disciplinary responsibility was the failure to prepare the tender documentation for public procurement, the preparation period of which was extended three times. The courts did not take into account that K.'s actions had the same disciplinary offense – failure to complete the task of preparing the tender documentation. The local courts did not take into account that the dismissal of an employee under subparagraph 13) of paragraph 1 of Article 54 of the Labor Code is possible if: - for a previously committed disciplinary offense, the employee was brought to disciplinary responsibility in compliance with the procedure established by the Code.; - the term of the disciplinary penalty has not expired; - the employee has committed a new disciplinary offense. Failure to comply with the procedure provided for in the Labor Code for bringing an employee to disciplinary responsibility in the form of dismissal in accordance with article 177 of the Code is the basis for reinstating an employee at his previous job and collecting wages from the employer for the time of forced absenteeism.
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