Compensation for moral damage in labor disputes
On labor relations (illegal dismissal, non-payment of wages) Ambiguous judicial practice in cases of compensation for moral damage in labor disputes, in particular, for non-payment of wages.
Refusals to satisfy claims for compensation for moral damage caused by unlawful dismissal and non-payment of wages are motivated by the absence of a norm in labor legislation providing for compensation for moral damage, as well as the absence of violated personal non-property rights of the employee. Meanwhile, in accordance with article 24 of the Constitution of the Republic of Kazakhstan, everyone has the right to freedom of work, free choice of occupation and profession. Forced labor is allowed only by a court verdict or under a state of emergency or martial law. Everyone has the right to work conditions that meet the requirements of safety and hygiene, to remuneration for work without any discrimination, as well as to social protection from unemployment. According to the provisions of the Labor Code, an employee has the right to conclude, amend, supplement, and terminate an employment contract in accordance with the procedure and conditions provided for in this Code, and to receive timely and full payment of wages in accordance with the terms of labor and collective agreements.
An analysis of the norms of the Constitution of the Republic of Kazakhstan, the Labor and Civil Codes governing these legal relations allows us to conclude that compensation for moral damage caused by violation of personal non-property rights of an employee provided for in Article 24 of the Constitution of the Republic of Kazakhstan and Article 22 of the Labor Code, expressed in unlawful dismissal, non-payment of wages, is subject to compensation in accordance with with the provisions of Articles 1, 951,952 of the Civil Code.
In fact, by unlawful dismissal, the employer violates the employee's right to terminate the employment contract in accordance with the procedure and conditions stipulated by the Labor Code, and not by paying wages violates the employee's right to timely and full payment of wages in accordance with the terms of labor and collective agreements. As a result of illegal dismissal, an employee is deprived of a source of livelihood, which affects the well-being and well-being of the employee and his dependents, affects health, moral condition and violates not only material but also non-material human benefits, expressed in discrimination of his rights to remuneration.
The Universal Declaration of Human Rights, adopted by the UN General Assembly on December 10, 1948, Part 3, Article 23, also states the right of every employee to fair and satisfactory remuneration that ensures a decent existence for himself and his family.
By the decision of the Almaty District Court of Astana, left unchanged by the courts of appeal and cassation, the claim of J.B.A. to the Ministry of Internal Affairs of the Republic of Kazakhstan for reinstatement at work, recovery of wages for forced absenteeism and compensation for moral damage was denied.
By order of the Minister of Internal Affairs of the Republic of Kazakhstan, the plaintiff was dismissed from the internal affairs bodies in accordance with paragraphs 13, paragraph 1, Article 80 of the Law "On Law Enforcement Service" for committing misconduct discrediting a law enforcement agency. According to the results of an internal investigation for using official position for mercenary purposes, violation of the requirements of paragraphs 79 and 80 of the Instructions on ensuring secrecy in the Republic of Kazakhstan, which could have serious consequences, violation of paragraphs 7), 9), paragraphs 11 and paragraphs 1) and 7) of paragraphs 15 of the Code of Honor of Employees of the Internal Affairs Bodies, the issue of disciplinary responsibility and further service in the internal affairs bodies of the head of the department, Zh-ova B.A., was recommended to be considered at a meeting of the Disciplinary Commission, which recommended that the plaintiff be dismissed from his post. The conclusion of the official investigation established that the plaintiff, using his official position for personal gain, together with his friend, an employee of the migration police of the Department of Internal Affairs of the Kostanay region, visited the house of citizen Sh-ai M.A. without any grounds, where, through threats of criminal prosecution, they exerted moral and psychological pressure on him in order to obtain bribes. In addition, at the building of the Department of Internal Affairs of the region, the plaintiff, posing as an investigator, for selfish reasons, exerted moral and psychological pressure on Sh-ai Yu.M., forced the latter to pay a bribe for the service provided to resolve the issue of non-prosecution for dual citizenship. In addition, during the internal investigation, facts of violation of the secrecy regime by the plaintiff when working with documents containing official secrets were revealed, namely, leaving a secret document on the desktop that was not included in the internal inventory, not handing over the office and the keys to it to the guard of the duty squad.
In accordance with paragraph 2 of Article 80 of the Law, misconduct discrediting a law enforcement agency is actions, including those unrelated to the performance of official duties, but clearly undermining the dignity and authority of the law enforcement service in the eyes of citizens, in particular, using official position for personal gain.
According to paragraph 23 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003 No. 9 "On certain issues of the application of legislation by courts in resolving labor disputes", when considering disputes of persons dismissed from service for misconduct that discredits the authority of the bodies they represent, courts should proceed from the fact that discrediting is understood as committing acts even if they are not related to the performance of official duties, they clearly undermine the dignity and authority of the bodies they represent in the eyes of citizens.
By the submitted conclusion of the internal investigation, the defendant's arguments about the plaintiff's defamatory misconduct were confirmed and not refuted in the case.
The court pointed out that the plaintiff's reference to the decision to terminate the criminal proceedings under Articles 307, Part 2, Article 172, Part 3 of the Criminal Code of the Republic of Kazakhstan for lack of corpus delicti is not grounds for satisfying the claim, since the dismissal was made for committing misconduct discrediting a law enforcement agency and violating the secrecy regime, which is covered by the scope of the internal investigation.
By the decision of the Taraz City Court, the claim of Zh-eva N.Zh. to Zhambyl Electric Networks LLP for compensation for moral damage in the amount of 500,000 tenge was denied. The plaintiff motivated his claims by the fact that he was dismissed from work according to the order dated 08.10.2014, was left without means of livelihood, after his reinstatement at work, he constantly feels pressure from certain employees of ZHES LLP. The court indicated that the rights of Zh-iev N.Zh. had been restored, and monetary payments had been made to him for forced absenteeism. When filing a lawsuit to declare the order illegal and reinstate them, they did not claim compensation for moral damage. The plaintiff did not provide evidence that ZHES LLP violated his specific rights.
By the decision of the court of appeal of July 28, 2015, the court's decision was changed and the claims of Ms. N.Zh. were partially satisfied and compensation for moral damage of 5,000 tenge was collected. The Board indicated that the decision of the Taraz City Court on the reinstatement of Zh-iev N.Zh. at work established the fact that ZHES LLP had committed an offense against him, resulting in unlawful dismissal. In this regard, the appeals board considers it proven that moral harm was caused to the plaintiff by unlawful dismissal. In accordance with art . 951 of the Civil Code, moral harm is understood as the violation, diminution or deprivation of non-property benefits and rights of individuals, including moral or physical suffering experienced by the victim as a result of an offense committed against him.
By the decision of the Aktobe city Court dated April 21, 2015, the claim of V.R.S. against EKKO-ROS Kazakhstan LLP for compensation for moral damage caused by unpaid wages was denied. The court motivated its conclusions by the fact that, in accordance with Article 951 of the Civil Code, moral damage caused by actions (inaction) violating a citizen's property rights is not subject to compensation.
The Appellate Judicial Board for Civil and Administrative Cases of the Aktobe Regional Court changed the court's decision and collected 20,000 tenge in compensation for moral damage in favor of V.R.S., citing the norm of Article 24 of the Constitution of the Republic of Kazakhstan that everyone has the right to working conditions that meet the requirements of safety and hygiene, to remuneration for work. without any discrimination. She pointed out that the defendant's unlawful actions violated the plaintiff's rights to timely payment of labor, and the plaintiff suffered moral suffering. The decision of the court of appeal was left unchanged by the cassation judicial board of the Aktobe Regional Court.
Disputes about compensation for moral damage caused by violation of labor rights require a regulatory clarification from the Supreme Court of the Republic of Kazakhstan. It is necessary to explicitly specify whether compensation for moral damage is possible for wage recovery claims, since there are different opinions, some believe that such a claim results from a violation of a person's property rights, therefore moral damage is not subject to compensation. while others believe that non-payment of wages violates the non-property right to pay, so moral damage is subject to compensation.
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