Consideration of disputes on termination of an employment contract
In accordance with paragraphs 1, 2 of Article 56 of the Labor Code, an employee has the right to terminate an employment contract on his own initiative, notifying the employer in writing at least one month in advance, except for the cases provided for in paragraph 3 of this article. An employment contract may set a longer period for the employee to notify the employer of the termination of the employment contract. If a longer notice period is established in the employment contract, the employee is obliged to work out the agreed period if the parties to the employment contract have not agreed to shorten the notice period. The notice period for termination of an employment contract includes both the time worked and the time not worked by the employee (for example, being on vacation, the period of temporary disability). The employer has the right to bring an employee to disciplinary responsibility even when, prior to committing a disciplinary offense, he submitted an application for termination of the employment contract on his own initiative, since in this case the employment relationship is terminated only after the expiration of a one-month notice period.
Consideration of disputes on termination of an employment contract
The employment contract may be terminated at the initiative of the employee before the expiration of the notice period provided for in paragraph 1 of this article, with the written consent of the employer. It follows from the meaning of this provision of the law that the employer is obliged to terminate the employment relationship with the employee after the expiration of the notice period, even in case of disagreement. This rule does not apply to financially responsible employees; in respect of them, the day of termination of the employment contract is the day of completion of the acceptance and transfer of the employer's property (documentation). On the basis of paragraph 5 of Article 56 of the Labor Code, an employee has the right to terminate work after the expiration of the notice period, except in cases of non-completion of the acceptance and transfer of the employer's property (documentation) due to the fault of financially responsible persons, while the employee's absence from work cannot be considered as absenteeism, i.e. as a disciplinary offense. It should be noted that the employee retains the right to withdraw the application before the expiration of the warning period, but only with the consent of the employer, which must be completed in writing during the notification period. It should be noted that the employer is obligated to execute the termination of the employment contract, i.e. to issue an order in a timely manner after the deadline for notification and familiarization of the employee with the order and handing over a copy of it or sending a notification letter within three working days from the date of issue of the order. Termination of an employment contract on the initiative of an employee is permissible if the filing of an application for termination of the employment contract came from the employee himself and was his voluntary expression of will. There are cases when employees, filing a claim for the restoration of violated labor rights, argue that the application was written under pressure from the employer. In this case, the employee's claims that he was forced to submit an application are subject to verification, with the employee himself being responsible for proving it. According to the rules of Articles 61 and 62 of the Labor Code, the employer is obliged to issue the termination of the employment contract with an act of the employer, hand over a copy of the act to the employee or send him a notification letter within three working days from the date of publication of the act of the employer, upon expiration of the notification period, the employer is obliged to provide the employee with documents related to work.
Upon termination of an employment contract, the employer is obligated to pay the amounts due to the employee no later than three working days after its termination (paragraph 4 of Article 113 of the Labor Code) and compensation for unused days of paid annual labor leave (annual labor leave) (paragraph 2 of Article 96 of the Labor Code). Thus, the decision of the Semeysky City Court denied the satisfaction of A.'s claims. to the CCU on reinstatement at work and payment of wages for the time of forced absenteeism on the grounds that the application for voluntary dismissal was a voluntary expression of the employee's will, which was satisfied by the employer, and the dismissal order was issued on the basis of subparagraph 5) of Article 49 of the Labor Code. The plaintiff did not provide evidence that the plaintiff's application for voluntary dismissal was forced, and the plaintiff also missed the deadline for applying. In another case, the court considered illegal the actions of the employer regarding the termination of the employment contract before the expiration of the one-month notice period. B. appealed to the Aksu City Court of the Pavlodar region with a claim to the KGP for the cancellation of the dismissal order and reinstatement. It follows from the circumstances of the case that B. worked in the KGP as a supervisor of the plumbing industry. In the period from October 27, 2015 to February 25, 2016 inclusive, she was on parental leave. In February 2016, an audit was conducted at the KGP, as a result of which the plaintiff revealed discrepancies in the payment of subscribers for utilities in the amount of 21,613 tenge (shortfall). On February 9, 2016, B. applied for her own resignation on February 26, 2016. By an order dated February 25, 2016, the employment contract with her was terminated under paragraph 1 of Article 56 of the Labor Code. The court found a violation of labor legislation by the employer, since it follows from the content of the plaintiff's application for termination of the employment contract that the plaintiff requested to terminate the employment relationship on February 26, 2016, but the employer terminated the employment contract on February 25, 2016, that is, the day before the deadline specified by the employee. By terminating the employment contract with the plaintiff on February 25, 2016, the employer actually fired the employee unilaterally on its own initiative, and not within the time period specified by the plaintiff in his notice. Thus, the employer violated the plaintiff's right to withdraw his resignation within the notice period. By a decision of the judicial board for civil cases of the regional court, the decision of the court of first instance to satisfy B.'s claim was left unchanged.
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