Disputes over termination of an employment contract at the employee's initiative

Court of Appeal, overturning the decision of the First Instance Court, proceeded from the fact that on September 2, 2021, i.e. before the date of the actual termination of the employment contract, T. had withdrawn the termination notice via the internal mail of the JSC. The notification of withdrawal of the notice was sent via the internal email of the bank, while the authorization and identification of T. was ensured.

The message was sent to S. – the Director of the HR Department. The internal e-mail correspondence provided by the plaintiff indicates that the notification sent to T. was received by the employer.

Under these circumstances, the order to terminate the employment contract dated August 13, 2021, was subject to cancellation by the employer, since T. exercised her right to withdraw the application for termination of the employment contract.According to paragraph 3 of Article 56 of the Labor Code, if the employer fails to comply with the terms of the employment contract, the employee has the right to notify the employer of the failure to comply with the terms of the employment contract. If the employer continues to fail to comply with the terms of the employment contract after seven working days, the employee has the right to terminate the employment contract by notifying the employer no laterawal of the notice of termination of the contract was not signed. The withdrawal of the application for dismissal does not meet the requirements for the form of submission of the withdrawal.

By the decision of the Civil Division of the North Kazakhstan Court dated February 25, 2022, the decision of Court No. 2 of Petropavlovsk, North Kazakhstan Region, dated December 2, 2021, was reversed, and a new decision was issued.

T.'s claim against the JSC was satisfied.

The order to terminate T.'s employment contract was found to be illegal and was annulled.

It was established that on August 11, 2021, T. submitted an application to her employer to terminate her employment contract effective September 3, 2021, in accordance with subparagraph 5) of Article 49 and paragraph 2 of Article 56 of the Labor Code.

On September 2, 2021, the plaintiff submitted an application to the employer to terminate her employment contract by agreement of the parties under subparagraph

1) of Article 49 of the Labor Code, with the payment of compensation in the amount of 2 monthly actual salaries.

On the same day, September 2, 2021, T. sent an internal email to the defendant, withdrawing her application to terminate the employment contract on her own initiative and requesting that her application to terminate the employment contract by agreement of the parties be reviewed.

In accordance with subparagraph 81) of paragraph 1 of Article 1 of the Labor Code, a notification is an employee's or employer's written statement (on paper or in the form of an electronic document certified by an electronic digital signature), submitted in person or by courier, postal, fax, email, or other information and communication technologies, or in electronic form with authorization and identification of the employee or employer.

The Court of Appeal, overturning the decision of the First Instance Court, proceeded from the fact that on September 2, 2021, i.e. before the date of the actual termination of the employment contract, T. had withdrawn the termination notice via the internal mail of the JSC. The notification of withdrawal of the notice was sent via the internal email of the bank, while the authorization and identification of T. was ensured.

The message was sent to S. – the Director of the HR Department. The internal e-mail correspondence provided by the plaintiff indicates that the notification sent to T. was received by the employer.

Under these circumstances, the order to terminate the employment contract dated August 13, 2021, was subject to cancellation by the employer, since T. exercised her right to withdraw the application for termination of the employment contract.

When considering cases of termination of an employment contract at the employee's initiative, courts should take into account that an employee who wishes to terminate the employment contract notifies the employer and has the right to propose a date for termination without complying with the one-month notice period, but the employer may refuse to reduce the notice period.

If the employer refuses to reduce the notice period, the employment contract will be terminated only after the notice period has expired, which is at least one month, unless the employment contract specifies a longer notice period. During the notice period before its expiration, the employee has the right to unilaterally withdraw the previously submitted application by means of a notification, even if an order has been issued to terminate the employment contract at the employee's initiative.

The labor legislation of the Republic of Kazakhstan provides for a different procedure for terminating an employment contract at the employee's initiative, due to the employer's failure to comply with the terms of the employment contract without observing the one-month notice period. According to paragraph 3 of Article 56 of the Labor Code, if the employer fails to comply with the terms of the employment contract, the employee has the right to notify the employer of the failure to comply with the terms of the employment contract. If the employer continues to fail to comply with the terms of the employment contract after seven working days, the employee has the right to terminate the employment contract by notifying the employer no later than

In accordance with the provisions of subparagraphs 5 and 7 of Article 67 of the Law of the Republic of Kazakhstan on Rehabilitation and Bankruptcy, the court in the rehabilitation procedure accepts cases of property disputes in which the debtor acts as the defendant, and also resolves disputes between the participants in the rehabilitation procedure.According to part 6 of paragraph 1 of Article 148 of the Civil Procedure Code, the application must include information about compliance with the pre-trial procedure for contacting the defendant, if this is required by law or stipulated by the contract.e application of the labor legislation of the Republic of Kazakhstan, the implementation or modification of the terms of agreements, labor and (or) collective contracts, and the employer's acts.

It has been established that the dispute between the parties arises from employment relations, is based on the norms of labor legislation and the terms of labor contracts, and is not related to the implementation of a rehabilitation procedure.

Since the court incorrectly applied the provisions of Part 8 of Article 35 of the Civil Procedure Code, the court's decision was overturned by the Court of Appeals on March 12, 2021, and the matter was sent back to the court of first instance for reconsideration.

In cases where an employer is declared bankrupt or undergoes a rehabilitation procedure, disputes arising from employment relations (such as reinstatement, wage recovery, etc.) are subject to consideration and resolution by general jurisdiction courts, and the provisions of Part 8 of Article 35 of the Civil Procedure Code do not apply to employment disputes.

State duty

According to the requirements of paragraph 7 of Article 610 of the Tax Code, a state duty is levied on non-property claims in the amount of 0.5 MCI.

Based on the requirements of paragraph 1 of Article 951 of the Civil Code, moral harm is a violation, diminishment, or deprivation of personal non-property benefits and rights of individuals.

According to the requirements of Article 149 of the Civil Procedure Code, a document confirming the payment of the state duty must be attached to the claim.

In accordance with subparagraph 1) of Article 616 of the Tax Code, plaintiffs are exempt from paying state fees in courts for claims related to the recovery of wages and other claims related to employment.

If the claim is successful, the court is required to recover the state fee from the defendant, who is not exempt from paying it, in accordance with Article 117 of the Civil Procedure Code.

There have been instances where courts have accepted claims for court proceedings without charging state fees, in violation of subparagraph 2) of Part 1 of Article 149 of the Civil Procedure Code.

From the case materials it follows that A. filed a lawsuit in court against LLP for the recovery of wages, compensation for the simple, penalty, compensation for moral damage.

The decision of the Zhetysus District Court of Almaty city dated April 13, 2022, upheld by the decision of the Judicial Board of Civil Affairs of the Almaty City Court, from LLP in favor of A.

recovered wage arrears, penalty, compensation for moral damage, costs for the payment of assistance of the representative.

The LLP is obliged to make pension contributions and other mandatory payments for the period of A.'s employment from June 22, 2021, to August 2021.

Compliance with the pre-trial procedure for resolving disputes Practice of applying the requirements of Article 159 of the Labor Code

Article 148 of the Civil Procedure Code contains a list of requirements for the form and content of a claim. According to part 6 of paragraph 1 of Article 148 of the Civil Procedure Code, the application must include information about compliance with the pre-trial procedure for contacting the defendant, if this is required by law or stipulated by the contract.

In accordance with paragraph 1 of Article 159 of the Labor Code, individual labor disputes are considered by conciliation commissions, with the exception of disputes arising between an employer and an employee of a micro-enterprise, a non-profit organization with a workforce of no more than fifteen employees, a domestic worker, a sole executive body of a legal entity, the head of an executive body of a legal entity, and other members of a collegial executive body of a legal entity, and in cases of unresolved issues or failure to comply with the decision of a conciliation commission, by courts.

This means that disputes between an employer and an employee of a microbusiness, a non-profit organization with no more than fifteen employees, a domestic worker, a sole executive body of a legal entity, the head of an executive body of a legal entity, or other members of a collective executive body of a legal entity do not require prior consideration of the dispute by a conciliation commission.

The requirement to apply to the conciliation commission also does not apply to certain categories of employees whose labor is regulated by the Labor Code of the Republic of Kazakhstan, with the specific features provided for by special laws and other regulatory legal acts of the Republic of Kazakhstan, including those who are in military service, employees of special state and law enforcement agencies, and civil servants.

However, there are cases where this requirement of the law is violated, and employees' applications are returned without any legal grounds.

K. filed a lawsuit against the LLP for the recovery of wages, compensation payments for the reduction of employees, and pension benefits.

The following deadlines apply for filing a complaint with the conciliation commission or the individual labor dispute court: 1) for disputes about reinstatement at work – one month from the date of delivery or sending by registered mail with a notification of delivery of a copy of the employer's act on termination of the employment contract to the conciliation commission, and for applying to the court – two months from the date of delivery or sending by registered mail with a notification of delivery of a copy of the decision of the conciliation commission when applying for unresolved disputes or when a party to an employment contract fails to comply with its decision; 2) for other labor disputes – one year from the day when the employee, including those who previously had an employment relationship, or the employer learned or should have learned about the violation of his right.For participants in labor relations who have the right, in accordance with the Labor Code, to apply to the court without contacting the conciliation commission for the consideration of individual labor disputes, the following are established

the following terms: for disputes about reinstatement at work – three months from the date of delivery or sending by registered mail with a notification of delivery of a copy of the employer's act on termination of the employment contract; for other labor disputes – one year from the day when the employee, including those who previously had an employment relationship, learned or had to to find out about the violation of your right.Law of the Republic of Kazakhstan dated April 2, 2010 No. 261-IV "On Enforcement Proceedings and the Status of Judicial Executors";

Law of the Republic of Kazakhstan dated July 14, 1997 No. 155-I "On Notaries";

Law of the Republic of Kazakhstan dated April 22, 1998 No. 220-1 "On Limited and Additional Liability Partnerships"On Judicial Decisions in Civil Cases" dated July 11, 2003, No. 5;

"On the Application of the Law on Court Costs in Civil Cases by the Courts of the Republic of Kazakhstan" dated December 25, 2006, No. 9.

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     Lawyer Almaty Lawyer Legal service Legal advice  Civil Criminal Administrationsat in the consideration of individual labour disputes between the parties to the employment contract, the law establishes the procedure for pre-trial settlement of the dispute, with the exception of certain categories of employees, namely, appeal to the conciliation commission and only after receiving a copy of the decision, when applying for an unresolved issue, or when the decision is not executed by the party to the employment contract – to the court. At the same time, in the absence of the conciliation commission, the period for appeal is suspended until its creation, which does not entail the expiration of the period for the consideration of an individual labour dispute. In accordance with paragraph 3 of Article 159 of the Labor Code, the procedure for forming and operating a conciliation commission is determined by the Agreement on the Work of the Conciliation Commission or by a collective agreement.

Regulatory framework

The main regulatory legal acts that must be applied when considering cases of the summarized category are:

The Constitution of the Republic of Kazakhstan;

The Civil Code of the Republic of Kazakhstan (General Part) dated December 27, 1994;

Civil Code of the Republic of Kazakhstan (Special Part) dated July 1, 1999 (hereinafter referred to as the Civil Code);

Civil Procedure Code of the Republic of Kazakhstan dated October 31, 2015 No. 377-V (hereinafter referred to as the Civil Procedure Code);

Labor Code of the Republic of Kazakhstan dated November 23, 2015 No. 414-V (hereinafter referred to as the Labor Code);

On taxes and other mandatory payments to the budget (Tax Code) dated December 25, 2017 No. 120-VI ZRK (hereinafter referred to as the Tax Code);

The Entrepreneurial Code dated October 29, 2015 No. 375-V ZRK;

The Code of the Republic of Kazakhstan dated July 7, 2020 No. 360-VI ZRK

On Public Health and the Healthcare System;

The Law of the Republic of Kazakhstan on Trade Unions;

Law of the Republic of Kazakhstan dated April 2, 2010 No. 261-IV "On Enforcement Proceedings and the Status of Judicial Executors";

Law of the Republic of Kazakhstan dated July 14, 1997 No. 155-I "On Notaries";

Law of the Republic of Kazakhstan dated April 22, 1998 No. 220-1 "On Limited and Additional Liability Partnerships";

Law of the Republic of Kazakhstan dated May 13, 2003, No. 415 "On Joint-Stock Companies";

Regulatory Decisions 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" dated October 6, 2017, No. 9;

"On the Application of Legislation on Compensation for Moral Damage by Courts" dated November 27, 2015, No. 7;

"On Judicial Decisions in Civil Cases" dated July 11, 2003, No. 5;

"On the Application of the Law on Court Costs in Civil Cases by the Courts of the Republic of Kazakhstan" dated December 25, 2006, No. 9.

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