Claims about the absence of an employment relationship based on the claims of the spouses.
There are claims filed by the spouse against the former spouse and his employer about the absence of an employment relationship. Such claims are filed in connection with the spouses' avoidance of alimony payments. The courts reasonably refuse to satisfy the claim, since the spouse is not a participant in the disputed labor relations.
Plaintiff B. filed a lawsuit against her former spouse, who asked her to establish the fact that there was no employment relationship between the defendants for the period from 2020 to 2022 inclusive.
She motivated her claims by the fact that the defendant evaded paying alimony during the enforcement proceedings, hid his income, and concluded fictitious employment contracts with LLP in order to reduce the amount of alimony.
Thus, she asked to recognize the employment contracts concluded between the defendants for 2020, 2021, 2022 as invalid.
By the decision of the court No. 2 of the city of Petropavlovsk, the claim was satisfied in full.
Satisfying the plaintiff's claims, the court pointed out the absence of a time sheet, payroll statement, staffing table of the LLP, as well as information from the Department of the National Security Committee Border Service dated December 30, 2022, according to which the defendant had not been in the territory of the Republic of Kazakhstan for a long time.
By the decision of the Judicial Board for Civil Cases of North Kazakhstan Region dated August 29, 2023, the decision of the Petropavlovsk City Court No. 2 dated June 19, 2023 was canceled, and a new decision was issued to dismiss the claim. The court refused correctly, since the plaintiff (spouse) is not a party to the employment contract.
Compliance with the pre-trial dispute settlement procedure
The practice of applying the requirements of Article 159 of the Labor Code Article 148 of the CPC contains a list of requirements for the form and content of the claim.
According to Part 6 of paragraph 1 of Article 148 of the CPC, the application must contain information on compliance with the pre-trial procedure for contacting the defendant, if this is established by law or provided for by contract.
In accordance with paragraph 1 of Article 159 of the Labor Code, individual labor disputes are considered by conciliation commissions, with the exception of disputes arising between an employer and an employee of a microenterprise entity, a non-profit organization with no more than fifteen employees, a domestic worker, the sole executive body of a legal entity, the head of the executive body of a legal entity, as well as other members of the collegial executive body. a legal entity, and for unresolved issues or non–fulfillment of the decision of the conciliation commission - by the courts.
That is, in disputes arising between an employer and an employee of a microenterprise entity, a non-profit organization with no more than fifteen employees, a domestic worker, the sole executive body of a legal entity, the head of the executive body of a legal entity, as well as other members of the collegial executive body of a legal entity, compliance with the preliminary consideration of the dispute in the conciliation commission is not required.
The requirement to apply to the conciliation Commission also does not apply to certain categories of employees whose work is regulated by the Labor Code of the Republic of Kazakhstan with the specifics provided for by special laws and other regulatory legal acts of the Republic of Kazakhstan, including those in military service, employees of special state and law enforcement agencies, civil servants.
However, there are cases when this requirement of the law is violated, and employee applications are returned without legitimate grounds.
K. filed a lawsuit against the LLP to recover wages, compensation payments for staff reductions, pension contributions, social health insurance payments, penalties and moral damages. By the ruling of the Balkhash City Court of the Karaganda region dated August 19, 2022, K.'s claim was returned to the plaintiff with all the documents due to the failure to provide them with a certificate of wage arrears, as well as the absence of a decision by the conciliation commission.
After a second appeal, by the ruling of the Balkhash City Court of the Karaganda region dated September 27, 2022, the application was again returned to the plaintiff due to non-compliance with the pre-trial settlement of the dispute. Returning the application, the court pointed out that the case file contains a copy of the plaintiff's application to the conciliation commission.
However, there is no document confirming its proper delivery to the employer for consideration, and there is no decision of the conciliation commission. On October 14, 2022, the plaintiff filed a lawsuit again.
By the ruling of the Balkhash City Court of the Karaganda region dated October 27, 2022, a mediation agreement was approved between the parties.
However, the case file contains a letter from the State labor inspector, from the contents of which it follows that according to the Unified Register of Subjects and Objects of Inspections (ERSOP) The Office of the Prosecutor General of the Republic of Kazakhstan and according to the certificate of the category of a business entity of the Ministry of National Economy of the Republic of Kazakhstan, the LLP is registered as a microenterprise entity.
Due to the fact that the LLP belongs to the subject of microenterprise, a pre-trial procedure for the settlement of a labor dispute in the conciliation commission was not required. By the ruling of the court No. 2 of the city of Uralsk dated July 4, 2022, D.'s claim against Kurylys Companiyasy LLP for the recovery of wage arrears was returned to the plaintiff due to violation of the pre-trial procedure for applying to the court.
By the ruling of the Judicial Board for Civil Cases of the West Kazakhstan Regional Court of August 9, 2022, the ruling of July 4, 2022 was canceled with the referral of the case materials to the same court for consideration of the dispute on the merits.
The court of first instance, returning the statement of claim, was guided by paragraph 1 of Article 159 of the Labor Code, referring to the need for the LLP to apply to the conciliation commission.
At the same time, the court did not take into account the fact that the plaintiff is the sole founder and head of this legal entity, accordingly, there was no need to apply to the conciliation commission.
By the ruling of the court No. 2 of the Bayterek district dated November 1, 2021, U.'s claim to LLP for the recovery of wages was returned due to the indisputability of the requirements and the need to comply with the pre-trial dispute settlement procedure by contacting a notary.
By the ruling of the court of appeal of January 20, 2022, the ruling of the district court of November 1, 2021 was canceled, sending the case materials to the same court for consideration of the dispute on the merits.
In accordance with the requirements of subparagraph 9) of paragraph 2 of Article 92-1 of the Law of the Republic of Kazakhstan "On Notaries", an executive inscription or a corresponding resolution is issued by a notary upon indisputable claims for the recovery of wages and other payments accrued but not paid to an employee.
As follows from the content of the claim, the employment contract between the parties to the dispute was not concluded, therefore, the plaintiff's salary was not accrued, the claim for its recovery is based on a time sheet and a travel list.
These circumstances indicate that there is a dispute between the parties related to the plaintiff's employment relationship with the defendant and the existence of wage arrears.
Consequently, the dispute was subject to judicial review.
Terms of application for consideration of individual labor disputes (Article 160 of the Labor Code)
The following deadlines are set for applying to the conciliation commission or the court for the consideration of individual labor disputes:
1) for disputes about reinstatement at work – one month from the date of delivery or sending by registered mail with a notification of delivery of a copy of the employer's act on termination of the employment contract to the conciliation commission, and for applying to the court – two months from the date of delivery or sending by registered mail with a notification of delivery of a copy of the decision of the conciliation commission when applying for unresolved disputes or when a party to an employment contract fails to comply with its decision;
2) in other labor disputes – one year from the day when the employee, including those who had previously been in an employment relationship, or the employer learned or should have learned about the violation of his right.
The term of the application for consideration of individual labor disputes is suspended during the period of validity of the mediation agreement on the labor dispute under consideration, as well as in the absence of a conciliation commission before its establishment.
In case of missing the deadline for applying for valid reasons, the conciliation commission for labor disputes may restore the deadline for applying to the conciliation commission if there are valid reasons for missing and resolve the dispute on its merits.
The conciliation commission independently determines whether the reasons why an employee, including those who previously had an employment relationship, did not apply to the conciliation commission within the established time frame are valid.
The following deadlines are set for participants in labor relations who have the right, in accordance with the Labor Code, to apply to the court without contacting the conciliation commission for the consideration of individual labor disputes.:
for disputes about reinstatement at work – three months from the date of delivery or sending by registered mail with a notification of delivery of a copy of the employer's act on termination of the employment contract;
In other labor disputes, it is one year from the day when the employee, including those who had previously been in an employment relationship, learned or should have learned about the violation of his right.
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