For termination of an employment contract between an employer and an employee at the initiative of the employer, the employee's absence from work for three or more hours without a valid reason within one working day (work shift) must be confirmed by concrete evidence.

Plaintiff G. The defendant appealed to the court with a claim for the cancellation of the order of the Akim of Karamurt rural district of Sairam District of South Kazakhstan region, reinstatement in the previous job, recovery of wages for days of forced idleness. By the decision of the Sairam District Court of May 31, 2012, the claim was dismissed. The court decision was upheld by the Appellate Judicial Board of the South Kazakhstan regional court. In turn, the Cassation Judicial Board of the regional court left the decision of the Appellate Judicial Board unchanged. G. in his application, he does not agree with the court decisions made in the case, cancels them and asks for a new decision to satisfy the statement of claim. The supervisory Judicial Board of the Supreme Court heard the explanations of the parties in the case, heard the conclusion of the prosecutor that the judicial acts were canceled and the case was subject to review, checked the case documents and canceled the disputed judicial acts on the following grounds. In accordance with Part 3 of Article 387 of the code of Civil Procedure of the Republic of Kazakhstan (hereinafter referred to as the code of Civil Procedure), a significant violation of material norms or procedural law is the basis for reviewing decisions, rulings, decisions of the court that have entered into legal force in the order of supervision. In this case, such shortcomings were allowed. Since 2005, he worked as a secretary in the Office of the Akim of Karamurt rural district, Sairam district.  By the order of the Akim of karamurt Rural District No. 18 dated March 18,2011 G. On February 25, 2011, he was dismissed under subparagraph 6) of Article 54 of the Labor Code of the Republic of Kazakhstan on the grounds that he was absent for 4 hours without valid reasons.

Applicant G. in the statement of claim submitted to the court and the answers given at the court session, it was stated that he was at work all day on February 25, 2011, only on February 28, 2011, that is, on Monday, the Akim of the rural district did not tolerate the misconduct of S., and the actions of the Akim were taken by the Territorial Administration of the agency of the Republic of Kazakhstan for Civil Service affairs in the South Kazakhstan region - after the village Akim did not stop his misconduct, on March 18, he wrote an application to the mayor for the transfer of another labor contract from April 1, 2011, but on the same day, that is, on March 18, subordinates were forced, and on February 25, 2011, G. completed an act stating that he was absent from work for 4 hours and issued an order to dismiss him.  And if I wasn't at work on February 25, I was asked why I wasn't fired then. To terminate an employment contract between an employer and an employee on the basis of subparagraph 6) of Paragraph 1 of Article 54 of the labor code on the initiative of the employer, it is necessary to confirm with concrete evidence that the employee was absent from work for three or more hours without a valid reason within one working day (work shift).

For termination of an employment contract between an employer and an employee at the initiative of the employer, the employee's absence from work for three or more hours without a valid reason within one working day (work shift) must be confirmed by concrete evidence.

However, when considering this labor dispute, the court did not comply with the requirements of the law. The arguments refuting the plaintiff G.'s answer that he was in Shymkent for the above reasons on February 28, the defendant did not submit to the court. The court of first instance did not justify in its decision why the order to dismiss the plaintiff was made on March 18, 2011, that is, after 23 days, if for good reason the plaintiff was not at work on February 25, 2011. Applicant G. the Akim of the village complained about the negative actions of S., which infringed on his honor and civil rights, sent a statement to the regional disciplinary council, the statement was accepted by the incoming number No. 42 dated February 28, 2011, and in accordance with the decision of the Disciplinary Council, the district Akim was instructed to conduct a service check on the application. And the evidence that the plaintiff G. actually applied to the mayor of the village on March 18, 2011 with a statement about the provision of another leave, and the mayor of the village threatened to "dismiss, not leave", the defendant did not submit to the court. In general, the court did not pay attention to the fact that the order to dismiss the plaintiff G. did not meet the requirements of the law. After the order was issued on March 18, 2011, the plaintiff applied to the state Labor Inspector of the Ministry of Labor and social protection of the population of the Republic of Kazakhstan. As a result of checking this application, it was established that the order on dismissal of the plaintiff did not comply with the requirements of subparagraph 6) of Paragraph 1 of Article 54, paragraph 6 of Article 73 and paragraph 5 of Article 134 of the Labor Code. The state Labor Inspector, taking into account the above-mentioned violations of the law, noted that akim of Karamurt rural district S. the plaintiff drew up a protocol on an administrative offense based on Paragraph 3 of Article 330 and Paragraph 2 of Article 636 of the code of administrative offenses of the Republic of Kazakhstan for non - compliance with the requirements of the law on Labor Relations when accepting an order to dismiss G. and issued a decision to bring S. to administrative responsibility under Paragraph 1 of Article 87 of this code, a fine of 10,584 tenge. In turn, the mayor recognized the violations committed and on April 25, 2011 repeatedly accepted the order to dismiss the plaintiff G. G. after the adoption of the court decision to dismiss the statement of claim, it was applied to the Appellate Judicial Board of the regional court. When the Appeal Board considered the complaint, the defendant concluded a settlement agreement with plaintiff G. for reinstatement to the previous place of work, and the plaintiff later withdrew his appeal. Acting akim of karamurt rural district F. on August 05, 2011 issued an order on the recruitment of G. under an individual employment contract. However, this settlement agreement does not meet the requirements of the Labor Code, because the agreement is concluded for the purpose of bending (masking), without the intention of causing legal consequences. The mayor dismissed the plaintiff G. on August 12, 2011, on the grounds that the former Secretary K. was due to return to office.  The plaintiff's application for re-consideration of the court decision due to newly discovered circumstances dated June 06, 2011 was also dismissed.  When reviewing the case, the collegiums of the court of First Instance and the regional court did not comply with the requirements of the resolution of the supervisory Judicial Board of the Supreme Court on civil and administrative cases adopted on March 06, 2011 on this case. Plaintiff G. since 2005, he has performed his activities perfectly, did not make any shortcomings in the performance of labor duties, but, on the contrary, has commendation documents. In addition, G. is a single mother and has a minor daughter in the upbringing.  At the same time, the judicial stages did not give an objective assessment of the reasons that served as the basis for the dismissal of G., did not pay due attention to the severity of the evidence, the circumstances of the commission of a misconduct on the part of the employer, and also made unfair decisions that did not meet the requirements of the labor code, without taking into account the responsibility of the plaintiff Applicant G. citizens who signed the act confirming their absence from work on February 25, 2011 indicated that they work in the village akimat, and therefore did what the mayor said. The court did not give an objective assessment of the answers of witnesses S., M., T. Witnesses indicated at the first court session that the plaintiff G. was at work on February 25, while at the second court session he changed his answers and gave other explanations. In accordance with the requirements of Articles 218, 219 of the code of criminal procedure, a court decision must be legitimate and justified. The court decision must objectively give a legal assessment with reference to the evidence that confirms or refutes the statement of claim, the norms of the law governing disputed relations. When considering this civil case arising from an employment relationship, the judicial stages did not fully determine the subject and grounds of the claim, but unambiguously looked at the essence of the dispute.

At the same time, the part of the statement of claim on the recovery of the average monthly wage for forced idleness days was not checked at all by the court of first instance. Among the evidence collected in the case, there is no certificate of the amount of the plaintiff's average monthly salary. The appeals of the plaintiff and his trustee to request the relevant documents on this issue were unjustifiably dismissed. Guided by the above circumstances, the supervisory judicial board concluded that the court decisions adopted in the case do not fully meet the requirements of the current material and procedural laws, and therefore are subject to cancellation.Due to the fact that there is sufficient evidence attached to the case on the part of the statement of claim on the relocation to the previous place of work (this civil case was considered in the courts for almost two years), there is a full basis for making a final decision, according to this part of the statement of claim, a new decision was made to relocate G. to his former place of work. And the claim of the plaintiff on the recovery of the average monthly wage for the days of forced idleness is sent to the District Court for review in another judicial composition, because the circumstances related to this part of the statement of claim were not fully, objectively verified by the court of first instance, did not provide evidence that would be the basis for making a decision. When the court reviews the case, the proceedings must make a legitimate and fair decision in full compliance with the requirements of the law. 

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