Consideration of labor disputes on termination of an employment contract for violation of labor discipline, but without observing the procedure established by labor legislation
The procedure for applying disciplinary penalties is regulated by Article 65 of the Labor Code. Disciplinary punishment is imposed by the employer by issuing his act. Before applying disciplinary action, the employer must request a written explanation from the employee. If, after two working days, the employee has not provided a written explanation, then an appropriate act is drawn up. Failure by an employee to provide an explanation is not an obstacle to disciplinary action. Only one disciplinary penalty may be applied to an employee for each disciplinary offense. In accordance with Article 64 of the Labor Code, the employer has the right to apply the following types of disciplinary penalties for the commission of a disciplinary offense by an employee: remark, reprimand, severe reprimand, termination of an employment contract on the initiative of the employer on the grounds provided for in paragraphs 8), 9), 10), 11), 12), 13), 14), 15), 16), 17) and 18) of paragraph 1 of Article 52 of the Labor Code. The application of disciplinary penalties not provided for by the Labor Code and other laws of the Republic of Kazakhstan is not allowed. It follows that the choice of the type of disciplinary action (remark, reprimand, severe reprimand, termination of the employment contract) is the right of the employer, depending on the misconduct committed by the employee. A disciplinary penalty may not be imposed during the period of: temporary disability of an employee; the employee's release from work while performing state or public duties; the employee is on vacation or inter-shift rest; the employee is on a business trip. The act on the imposition of disciplinary punishment is announced to the employee who has been subjected to disciplinary punishment, against signature, within three working days from the date of its publication.
Consideration of labor disputes on termination of an employment contract for violation of labor discipline, but without observing the procedure established by labor legislation
If the employee refuses to confirm with his signature that he has become familiar with the employer's act, a corresponding entry is made in the act on the imposition of disciplinary action. If it is not possible to personally familiarize the employee with the employer's act on the imposition of disciplinary punishment, the employer is obliged to send the employee a copy of the act on the imposition of disciplinary punishment by letter with notification within three working days from the date of publication of the employer's act. The acts of the employer include orders, orders, instructions, rules, regulations, shift schedules, shift schedules, vacation schedules issued by the employer (paragraph 41) paragraph 1 of Article 1 of the Labor Code). The courts should keep in mind that the act of an employee committing a disciplinary offense or the act of an employee refusing to give a written explanation is not an act of the employer and does not require familiarization with the employee who committed the disciplinary offense. When determining the type of disciplinary action, the employer has the right to apply termination of the employment contract in the cases provided for in the sub-paragraphs 8), 9), 10), 11), 12), 13), 14), 15), 16), 17) and 18) paragraph 1 of Article 52 of the Labor Code. When determining whether an employee has committed disciplinary misconduct, the courts should proceed from what is meant by disciplinary misconduct. Based on subparagraph 74) of paragraph 1 of Article 1 of the Labor Code, a disciplinary offense is a violation of labor discipline by an employee, as well as improper performance of labor duties. Consequently, if an employee violates labor discipline or labor duties, the employee may be brought to disciplinary responsibility. In this regard, the courts should proceed from the requirements of subitems 28) and 30) of paragraph 1 of Article 1 of the Labor Code, according to which labor duties are the obligations of an employee stipulated by an act of the employer, labor, collective agreements; labor discipline is the proper fulfillment by employees of obligations established by agreements, labor, collective agreements, acts of the employer, constituent documents. In addition, based on the provisions of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003 No. 9, resolving a claim for reinstatement of a person dismissed on the grounds provided for in subparagraph 13) of paragraph 1 of Article 54 of the Labor Code (subparagraph 16) of paragraph 1 of Article 52 of the current Labor Code), the court is obliged to examine evidence that has the employee previously committed a misdemeanor for which he was brought to disciplinary responsibility, and has the procedure and time limits for imposing this disciplinary penalty established by legislative acts been observed, is there a sign that the employee has repeatedly failed to fulfill his work duties without valid reasons? If, during the consideration of the case, the court finds that the person was brought to disciplinary responsibility for a previously committed offense in violation of the law, then the sign of repetition is excluded, and the plaintiff is subject to reinstatement at his previous job.
The court is obliged to examine the evidence as to whether the employee has previously committed misconduct for which he was disciplined. An independent reason for termination of an employment contract as a type of disciplinary punishment is the repeated non-fulfillment or repeated improper fulfillment of labor duties without valid reasons by an employee who has a disciplinary penalty (subparagraph 16) of paragraph 1 of Article 52 of the Labor Code). Attention should be paid to the fact that the sign of repetition is considered to be the presence of one of the types of disciplinary punishment (remark, reprimand, severe reprimand), and for which the term of disciplinary punishment has not expired. In accordance with paragraph 4 of Article 66 of the Labor Code, the period of validity of a disciplinary penalty may not exceed six months from the date of its application, i.e. the six-month period starts from the date the employee is notified of the imposition of a disciplinary penalty by reviewing the disciplinary action order. When determining the recurrence, it is necessary to be guided by the employee's type of disciplinary action, regardless of which offense was committed by the employee again: similar to the first offense or another other disciplinary offense. Since the basis of the termination of the employment contract provides for the commission of disciplinary action by the employee for "repeated non-performance or repeated improper performance of labor duties without valid reasons." The main violations of labor legislation on the part of the employer are non-compliance with the procedure for termination of an employment contract, such as the lack of documentary evidence of requesting a written explanation from employees within the time limit set by the Labor Code, violation of the time limit and the procedure for imposing disciplinary action, which is the basis for satisfying the plaintiff's claims. For example, K. was dismissed from the internal affairs bodies for repeated absence from the workplace. At the hearing, it was established that K., being an employee of the juvenile police of the Department of Internal Affairs, In Zhezkazgan, he was assigned to School No. 9 and boarding school, where he performed official duties as a duty inspector directly in these educational institutions. By order of the Department of Internal Affairs of Zhezkazgan, he was reassigned to school No. 7, where he was supposed to be on duty, but he was not informed of this order in writing. An act of refusal to review the order was not provided. K., while continuing to work at his former school, received a salary. On February 15, 22, and 25, 2016, acts were drawn up on K.'s absence from Secondary school No. 7, with which K. They also did not inform him, and they did not demand a written explanation from him. It was established that on February 15, 22, and 25, 2016, K. was on duty at Secondary School No. 9, having worked full-time on those days. Despite the fact that the disciplinary offense imputed to K. was discovered on February 15, 22, and 25, 2016, the order to terminate the employment contract with him was issued on May 12, 2016. The court found that upon termination of the employment contract by the employer, the one-month period for disciplinary punishment provided for in paragraph 1 of Article 66 of the Labor Code was violated. Taken together, these circumstances were regarded as a violation of the procedure for applying disciplinary punishment to the employee, the order to dismiss the plaintiff was declared illegal, and K. was reinstated in his former position.
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