Disputes about termination of an employment contract initiated by an employee.
In accordance with the principle of freedom of work, an employee, on his own initiative (at his own request), has the right at any time to terminate both an employment contract concluded for an indefinite period and a fixed-term employment contract.
This right belongs to the employee from the moment of the conclusion of the employment contract and is unconditional, for its acquisition it is not required to fulfill any conditions. The exercise of the right to terminate an employment contract at one's own request, with rare exceptions, is conditioned only by the will of the employee.
When considering cases on the legality of dismissal on the initiative of an employee, it is important not only to have the will of the employee, but also the form of expression of such will.
As you know, a written warning from an employer about the termination of an employment contract at his own request is issued in the form of a statement expressing his intention to terminate the employment relationship, indicating the basis for dismissal.
By virtue of paragraph 1 of Article 56 of the Labor Code, an employee has the right, on his own initiative, to terminate an employment contract by notifying the employer in writing at least one month in advance, except in cases where the employer fails to comply with the terms of the employment contract.
At the same time, paragraph 2 of this article allows for the possibility of termination of the employment contract on the initiative of the employee before the expiration of the notice period provided for in paragraph 1 of Article 56 of the Labor Code, with the establishment of a mandatory condition in the form of the written consent of the employer.
So, the plaintiff B.Zh. appealed to the Aksu city Court with a claim to the KGP "Aksu suarnasy" for the cancellation of the dismissal and reinstatement order.
It follows from the circumstances of the case that B.Zh. worked in the KGP "Aksu Suarnasy" as a water supply supervisor. She was on parental leave from October 27, 2015 to February 25, 2016 inclusive.
In February 2016, an audit was conducted at the Aksu su Arnasy State Unitary Enterprise, 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 09, 2016, Bayadolda J. applied for her own resignation on February 26, 2016. By Order No. 87-k dated February 25, 2016, the employment contract with her was terminated under paragraph 1 of Article 56 of the Labor Code, and the missing amount was deducted from wages based on the results of an internal audit.
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.
The above allows us to conclude that the employer actually fired the employee unilaterally on his 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 at any time before the expiration of the specified period.
Thus, judicial practice proceeds from the fact that an employee does not have the right to unilaterally determine the date of dismissal. In the event that there are no reasons for the employee to independently decide on the term of the notice of dismissal, the indication in the application should be considered as an offer to the employer to reach an agreement on dismissal before the expiration of the warning period. Such an agreement can be reached with the appropriate expression of the employer's will.
For example, in the case considered by the Pavlodar District Court, J.R.D. appealed to the court, arguing that since February 24, 2014, she had been working as the director of the Olginsky secondary school. By order of the head of the education department of the Pavlodar region dated December 31, 2015, she was dismissed at her own request on the basis of a statement she had forcibly written. She was forced to write the statement under pressure from the head of A.T. and in connection with her threats of dismissal for negative reasons. On the same day, a dismissal order was issued from January 05, 2016, which was subsequently read out at the school in her absence. On January 07, 2016, she withdrew her resignation letter, but received a written reply dated January 21, 2016, refusing to consider the application due to the fact that the order had already been issued. The Conciliation Commission found her request for reinstatement to be unfounded. She asked to be reinstated as the director of the Olginsky secondary school.
The court of first instance verified the circumstances of the plaintiff's dismissal, correctly applied the norms of substantive and procedural law, and gave a reasonable assessment of the examined evidence and satisfied the claim.
In accordance with article 51 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. By agreement of the parties between the employee and the employer, the employment contract may be terminated before the expiration of the warning period.
As the court found, there was no agreement between the employer and the employee on early termination of the employment contract. In her resignation letter, J.R.D. did not specify the date on which she asked to be fired. Consequently, the employer had no right to terminate the employment contract with the employee before the end of the month.
By terminating the contract on January 5, 2016, the employer deprived J.R.D. of the right provided for in article 57 of the Labor Code (2007), according to which, during the warning period, she has the right in writing to withdraw the application for termination of the employment contract.
On January 7, 2016, she submitted such a written application, however, the employer unreasonably refused to satisfy the application, citing the fact that a dismissal order had already been issued.
The court of first instance correctly refuted these arguments of the defendant, since they contradict labor legislation: the employer does not have the right to terminate the employment contract within a month after submitting an application for dismissal, and in case of withdrawal of the application, he is obliged to return it. If the employer was not satisfied with the employee's attitude to work, he was entitled, in accordance with the rules of article 54 of the Labor Code (2007), to terminate the employment contract on his own initiative.
The arguments of the defendant's complaint that there had been dismissal by agreement of the parties from the date indicated in the employee's statement were declared untenable by the judicial board. As can be seen from J.R.D.'s statement, she did not specify the date of her dismissal. The date "December 30, 2015" is the date of writing the application, as indicated by its location at the bottom of the text after the signature. In this case, the woman was dismissed on the initiative of the employer, before the deadline set by law. She exercised her right to withdraw her resignation letter. However, her employer prevented her from doing so.
In this case, the date of dismissal was not agreed upon by the parties to the employment contract. The plaintiff's statement could not be regarded as a warning to the employer about the termination of the employment relationship before the deadline set by law. The termination notice period begins the day after the employer receives the employee's application.
It should be borne in mind that the legal status of the employee during the warning period is characterized by the presence of the same rights and obligations as
they are carried by other employees. Accordingly, failure to perform or improper performance of work duties may result in the employee being disciplined. During the warning period, the employee does not enjoy any advantages. In case of absenteeism without valid reasons before the expiration of the monthly warning period, before the expiration of the monthly warning period, leaving work will be considered absenteeism.
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