Consideration of claims for reinstatement at work and recovery of wages during forced absenteeism due to unlawful criminal prosecution
When considering cases of this category, courts should, in the process of preparing cases for trial, verify the existence of grounds and the validity of the stated claims. The basis for making demands is the acquittal by the court, or the decision by the criminal prosecution body to terminate the criminal case on the grounds specified in part 1 of Article 37 of the CPC. The persons listed in parts 2 and 3 of Article 38 of the CPC also have the right to make such a claim in accordance with Part 2 of Article 39 of the CPC. These persons have the right to eliminate the consequences of moral harm and to be restored to their labor and other rights. Within six months from the date of receipt of the notification explaining the procedure for the restoration of rights, a person has the right to file a claim for damages with those authorities responsible for resolving the issues raised in the claim for the restoration of violated rights. In particular, a claim for the restoration of labor rights must be sent to the organization, enterprise, institution where the rehabilitated person was working at the time of his removal from office due to criminal prosecution or conviction. In case of refusal to restore the rights, the rehabilitated person has the right to apply to the court.
Consideration of claims for reinstatement at work and recovery of wages during forced absenteeism due to unlawful criminal prosecution
So, the Kyzylkoginsky district Court of Atyrau region considered a civil case on the claim of U. to the State Institution "Housing and Communal Services" for recognizing the dismissal order as illegal, reinstatement at work and recovery of wages for the time of forced absenteeism. By a court decision, the statement of claim from satisfied, the order to dismiss the plaintiff was declared illegal, the plaintiff was reinstated at his previous job, and wages were collected in his favor for the time of forced absenteeism. According to the case file, the Atyrau region financial Police found violations of the Law in public procurement conducted by the department in which U. worked. A criminal case was initiated against the latter, which was subsequently terminated on non-rehabilitating grounds, which was the basis for issuing an order to dismiss U. At the same time, the court found that during the review of the materials of the pre-trial investigation into the plaintiff's complaint by a decision of the financial police investigator, a criminal case against U. it was terminated due to the absence of corpus delicti, that is, on rehabilitative grounds, which was the basis for satisfying U.'s claims. In accordance with Article 61 of the Labor Code, termination of an employment contract is formalized by an act of the employer, with the exception of termination of the employment contract in the event of death (declared dead by a court or recognized as missing) of an individual employer and termination of an employment contract with domestic workers. In accordance with the Labor Code, the employer's act must specify the basis for termination of the employment contract. In this regard, the legal position of the courts seems correct when they invalidate an order, then the issue of reinstatement of an employee is resolved, since the basis for hiring and terminating an employment contract is an act of the employer in the form of an order, an order, without canceling which it is premature to resolve the issue of reinstatement of an employee at work.
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