Challenging orders to impose disciplinary penalties.

On May 31, 2016, by the decision of the Ust-Kamenogorsk City Court, the claim of U.G.K. to the State Institution "Financial Control Inspectorate for the East Kazakhstan region of the Financial Control Committee of the Ministry of Finance of the Republic of Kazakhstan" on the cancellation of the disciplinary action order was satisfied.

It was established that on March 09, 2016, at a conference call of the Financial Control Committee of the Ministry of Finance of the Republic of Kazakhstan, the fact of an oral complaint (by telephone) from the leadership of the East Kazakhstan Region Drama Theater about the unethical behavior of the plaintiff, which took place on March 5, 2016 in a telephone conversation with the deputy of the East Kazakhstan Drama Theater.

By the order of the Head of the Inspectorate dated 28.03.2016, the plaintiff was brought to disciplinary responsibility in the form of a "remark" for "violation of subclause 2, clause 5 of the Code of Ethics.

Article 143 of the Labor Code regulates that the work of civil servants, deputies of Parliament and maslikhats, judges of the Republic of Kazakhstan is regulated by this Code with the specifics provided for by the laws of the Republic of Kazakhstan and other regulatory legal acts of the Republic of Kazakhstan, establishing special conditions and procedures for admission to service, its passage and termination, special working conditions, terms of remuneration, and There are also additional benefits, advantages, and limitations.

In accordance with paragraph 35 of the Rules for Imposing Disciplinary Punishment on a Civil servant, if an administrative civil servant does not agree in his written explanation with the fact that he committed a misdemeanor, an official investigation must be conducted by order of an authorized person in accordance with the procedure defined by these Rules."

In accordance with paragraph 46 of the Rules, internal investigations are appointed by an act of an authorized person and are conducted by the Personnel Management Service (HR department) within no more than ten working days from the date of publication of the internal investigation act. In this case, the direct head of the administrative civil servant is involved in the internal investigation, except in cases of a conflict of interest or consideration of their disciplinary responsibility within the framework of a single disciplinary proceeding.

However, as follows from the materials of the internal investigation, the plaintiff is not familiar with the order to conduct an internal investigation. Her immediate supervisor was not involved in the internal investigation.

In accordance with paragraph 62 of the Rules, the commission, at its meeting, reviews the materials of the internal investigation and examines the facts concerning disciplinary misconduct, hears explanations from the administrative civil servant against whom the internal investigation was conducted, and representatives of the Personnel Management Service (HR service) or authorized officials who conducted the investigation. The Commission also has the right to hear witnesses and investigate any facts regarding misconduct. The date of the meeting is determined by the Chairman, and the members of the Commission and the administrative civil servant are notified by the Personnel Management Service (HR department).

Consideration of the materials of an internal investigation at a meeting of the Commission may take place without the participation of an administrative civil servant, in respect of whom disciplinary responsibility is being considered, if he was duly notified of the time and place of the meeting of the Commission and familiarized with these materials at least three working days before the meeting.

In the case under consideration, the meeting of the Disciplinary Commission on March 25, 2016 took place without the participation of the plaintiff, while there is no information about the proper notification of the plaintiff about the time and place of the Commission meeting and familiarization with the specified materials at least three working days before it, as well as familiarization with the minutes of the Commission meeting, which is the Commission's responsibility.

In addition, according to paragraph 43 of the Rules, an internal investigation is the activity of collecting and verifying materials and information about the disciplinary misconduct of an administrative civil servant in order to fully, comprehensively and objectively clarify the circumstances of its commission.

Consequently, the main goal of achieving a full, comprehensive and objective clarification of the circumstances of the committed misconduct on the part of the defendant was not achieved. Bringing an administrative civil servant to disciplinary responsibility on the basis of an unbiased official investigation, as well as taking into account significant violations of the Rules governing the Imposition of Disciplinary Penalties on administrative civil servants, is unjustified and illegal.

On October 7, 2016, the Arkalyk City Court of Kostanay region issued a decision declaring illegal and canceling the order of the Akim of the city of Arkalyk to impose disciplinary action on N.D.I..

The decision is motivated by the fact that disciplinary punishment was imposed on a civil servant in violation of the procedure established by the Rules approved by Decree of the President of the Republic of Kazakhstan dated December 29, 2015 No. 152. Despite the employee's disagreement with the fact that he committed a misdemeanor, the penalty was imposed without conducting an internal investigation.

 

 

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