Disputes on the recognition of an employment relationship in the absence of an employment contract between the parties
In accordance with paragraph 3 of Article 33 of the Labor Code, a person is allowed to work only after the conclusion of an employment contract.
In case of absence and (or) failure to properly formalize an employment contract due to the fault of the employer, he is liable in accordance with the procedure established by the laws of the Republic of Kazakhstan. In this case, the employment relationship is considered to have arisen from the day the employee started work.
Also, according to paragraph 7 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of legislation by courts in the resolution of labor disputes" No. 9 dated December 19, 2003 (with subsequent amendments and additions), the nature of the employment relationship may be indicated by circumstances when an employee performs certain work in a specific specialty, qualification, position, according to the rules of the internal labor regulations, and the employer pays him wages and ensures working conditions stipulated by law.
For example, the Pavlodar City Court considered a case on the claim of M.B.Zh. to Pavlodar Plant of Light Structures LLP.
The plaintiff motivated the claims by the fact that on 22.09.2015, Pavlodar Plant of Light Structures LLP (hereinafter referred to as LLP), represented by Director O.S. Davidenko, and Aluminum of Kazakhstan JSC (hereinafter referred to as JSC), represented by President A.B. Esenzhulov, concluded contract No. 70 for construction and installation work on the territory of JSC. On 16.11.2015, an employment contract No. 52 was concluded between the LLP and him for the performance of work as a locksmith, as well as with other specialist workers. On 29.01.2016, while carrying out work on the territory of the joint-stock company, a metal beam fell on it. As a result, he was taken to the hospital with a severe leg injury. The LLP initially applied to the Department of Labor of the Pavlodar Region (hereinafter referred to as the GU) upon the fact of an accident with him as an employee of the LLP, but subsequently the director of the LLP sent a letter to the labor inspectorate about the exclusion of employees of the LLP from the commission, claiming that he was not in an employment relationship. The plaintiff believed that the LLP was deliberately hiding the existence of an employment relationship with him, wanting to evade the relevant responsibility as an employer. On these grounds, he asked to recognize the employment contract as valid, to recognize him as a victim, to recognize Pavlodar Plant of Light Structures LLP as his employer, to recognize the director of Davidenko O.S. LLP as the defendant in the accident, and to oblige the management of the LLP to investigate the accident.
By virtue of part 1 of Article 38 of the Labor Code, an employment contract begins on the date of its signing by the parties or the date specified therein. The actual admission to work is carried out only after the parties sign an employment contract. In case of absence and (or) failure to properly formalize an employment contract due to the fault of the employer, he is liable in accordance with the procedure established by the laws of the Republic of Kazakhstan. In this case, the employment relationship is considered to have arisen from the day the employee started work. From this moment on, the parties to the employment contract have rights and obligations.
The court found that the director of the LLP initially applied to the Department of Labor of the Pavlodar region upon the accident with a handwritten statement on the inclusion of the LLP's employees in the accident investigation commission, submitted the original employment contract with M. But later she sent a letter to the labor inspectorate about the exclusion of LLP employees from the commission, refusing to recognize the employment relationship with the injured employee.
The court regarded the loss of the original copy of the employment contract or its concealment as the lack of proof of the defendant's statement about the actual circumstances of the case and, in accordance with the requirements of part 9 of Article 73 of the CPC, concluded that the information contained therein was directed against the interests of this party and was considered recognized by it.
The Judicial Board for Civil Cases of the Pavlodar Regional Court in its ruling indicated that the circumstances established by the court of first instance give grounds to recognize that the defendant, as a party to an employment relationship, did not ensure proper registration of legally significant actions in accordance with the requirements of the law. The defendant deprived himself of the opportunity to properly prove his claim about the absence of an employment contract with the existence of a copy of it used by him in his business activities. An employment agreement was concluded between the parties in violation of the procedure, without providing one copy to the employee, which grossly violated the requirements of the law.
In our opinion, the judicial authorities correctly established that an employment agreement was concluded between the plaintiff and the defendant without its proper registration, which grossly violated the requirements of labor legislation.
Also, the judicial board, by a private ruling, brought to the attention of the prosecutor of the Pavlodar region the fact of the involvement of the head of Pavlodar Plant of Light Structures LLP in the commission of criminal offenses provided for in Articles 152, 156 of the Criminal Code, namely, violation of Labor Protection Rules that negligently caused serious harm to health and violation of labor legislation that caused significant harm to rights and legitimate interests. in the interests of the citizen, to verify and make a procedural decision.
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