Grounds for termination of an employment contract at the initiative of the employer
Termination of an employment contract on the basis of a reduction in the number or staff of employees (subparagraph 2) of paragraph 1 of Article 52 of the Labor Code)
N. filed a lawsuit against the NAO (University), the Board of Directors of the University to declare illegal the decision of the Board of Directors of the University dated November 25, 2021, the cancellation of the order to terminate the employment contract, the reinstatement of the vice-rector for Student Affairs and social work, the recovery of wages for the time of forced absenteeism.
By the ruling of the Taraz City Court of June 9, 2022, the claim regarding the requirements for the cancellation of the order to reinstate the plaintiff in his former position, the collection of wages was left without consideration on the basis of subparagraph 1) of Article 279 of the CPC.
By the decision of the Taraz City Court of June 9, 2022, the claim for declaring illegal the decision of the Board of Directors of the University of November 25, 2021 was denied.
By the ruling of the judicial board for civil cases of the Zhambyl Regional Court dated September 23, 2022, the ruling of the court of first instance was canceled, the case in this part was sent for new consideration to the same court in a different composition.
By the decision of the judicial board for civil cases of the Zhambyl regional Court dated September 23, 2022, the decision of the Taraz City Court was changed, regarding the refusal to satisfy the claim, it was canceled with the issuance of a new decision on the satisfaction of the claim.
The decision of the University's Board of Directors dated November 25, 2021 regarding the exclusion of the position of Vice-rector for Student Affairs and Social Work from the staff was declared illegal.
The rest of the court's decision was left unchanged. The Cassation Judicial Board of the Supreme Court, by a resolution dated March 25, 2023, canceling the decision of the judicial board of the regional court, upheld the decision of the court of first instance, disagreeing with the conclusions of the appellate instance on the plaintiff's right to appeal the decision of the Board of Directors on the basis of paragraph 7 of Article 12 of the Labor Code.
According to the University's charter, the governing body is the Board of Directors. By a protocol decision of the Board of Directors dated November 25, 2021, the position of Vice-Rector for Student Affairs and Social Work was excluded from the Board.
By order of the Chairman of the University Board, the employment contract with N. was terminated due to the reduction of the staff of the Vice-Rector for Student Affairs and Social Work, in accordance with subparagraph 2) paragraph 1 of article 52, paragraph 2 of article 96, subparagraph 2) paragraph 1 of Article 131 of the Labor Code. According to paragraphs 7, 8 of Article 58 of the Law of the Republic of Kazakhstan "On Joint Stock Companies", the right to challenge the decision of the Board of Directors in court belongs to the members of the Board of Directors of the company or the shareholder.
The Taraz City Court motivated the refusal to satisfy the claim by the fact that N., not being a shareholder, a member of the Board of Directors, does not have the authority to challenge the decision of the Board of Directors.
The contested decision of the Board of Directors is not an act of the employer. In addition, the Labor Code does not contain mandatory requirements for the organizational structure and staffing of a particular legal entity, it only provides for the procedure and restrictions on the possibility of termination of an employment contract at the initiative of the employer, including in case of downsizing.
Thus, when challenging the decision of the management body of a joint-stock company, the courts need to proceed from whether, in this case, a staff-shortened employee is a proper plaintiff.
In addition, upon termination of the employment contract at the initiative of the employer on the grounds provided for in subparagraph 2) paragraph 1 of Article 52 of the Labor Code, the courts need to find out whether there are legitimate grounds for making a decision to reduce the number or staff of employees, whether this is due to a real reduction in the amount of work due to objective circumstances that the employer is obliged to submit to the court.
Compliance with the pre-trial dispute settlement procedure
The practice of applying the requirements of Article 159 of the Labor Code Article 148 of the CPC contains a list of requirements for the form and content of the claim.
According to part 6 of paragraph 1 of Article 148 of the CPC, the application must contain information on compliance with the pre-trial procedure for contacting the defendant, if this is established by law or provided for 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 microenterprise entity, a non-profit organization with no more than fifteen employees, a domestic worker, the sole executive body of a legal entity, the head of the executive body of a legal entity, as well as other members of the collegial executive body a legal entity, and on unresolved issues or non–fulfillment of the decision of the conciliation commission - by the courts.
That is, in disputes arising between an employer and an employee of a microenterprise entity, a non-profit organization with no more than fifteen employees, a domestic worker, the sole executive body of a legal entity, the head of the executive body of a legal entity, as well as other members of the collegial executive body of a legal entity, compliance with the preliminary consideration of the dispute in the conciliation commission is not required.
The requirement to apply to the conciliation commission also does not apply to certain categories of employees whose work is regulated by the Labor Code of the Republic of Kazakhstan with the features provided for by special laws and other regulatory legal acts of the Republic of Kazakhstan, including those in military service, employees of special state and law enforcement agencies, civil servants.
However, there are cases when this requirement of the law is violated, employees' applications are returned without legitimate grounds.
K. appealed to the court with a claim against the LLP for the recovery of wages, compensation payments for staff reductions, pension contributions, social health insurance payments, penalties and moral damage. By the ruling of the Balkhash City Court of the Karaganda region dated August 19, 2022, K.'s claim was returned to the plaintiff with all documents in connection with their failure to provide a certificate of wage arrears, as well as the absence of a decision of the conciliation commission.
After repeated appeal by the ruling of the Balkhash City Court of the Karaganda region dated September 27, 2022, the application was returned to the plaintiff again due to non-compliance with the pre-trial settlement of the dispute. Returning the application, the court pointed out that the case file contains a copy of the plaintiff's application to the conciliation commission.
However, there is no document confirming its proper delivery to the employer for consideration, and there is no decision of the conciliation commission. On October 14, 2022, the plaintiff filed a lawsuit again.
By a ruling of the Balkhash City Court of the Karaganda region dated October 27, 2022, a mediation agreement was approved between the parties.
However, the case file contains a letter from the state labor inspector, from the contents of which it follows that according to the Unified Register of Subjects and Objects of Inspections (ERSOP) The Prosecutor General's Office of the Republic of Kazakhstan and according to the certificate on the category of the subject of entrepreneurship of the Ministry of National Economy of the Republic of Kazakhstan, the LLP is registered as a subject of microenterprise.
Due to the fact that the LLP belongs to the subject of microenterprise, a pre-trial procedure for the settlement of a labor dispute in the conciliation commission was not required. By the ruling of the court No. 2 of the city of Uralsk dated July 4, 2022, D.'s claim against Kurylys Companyasy LLP for the recovery of wage arrears was returned to the plaintiff due to violation of the pre-trial procedure for applying to the court.
By the ruling of the judicial board for Civil Cases of the West Kazakhstan Regional Court dated August 9, 2022, the ruling of July 4, 2022 was canceled with the referral of the case materials to the same court for consideration of the dispute on the merits.
The court of first instance, returning the statement of claim, was guided by paragraph 1 of Article 159 of the Labor Code, referring to the need for the LLP to apply to the conciliation commission.
At the same time, the court did not take into account the fact that the plaintiff is the sole founder and head of this legal entity, accordingly, there was no need to apply to the conciliation commission.
By the ruling of the court No. 2 of the Bayterek district dated November 1, 2021, the claim of U. to LLP for the recovery of wages was returned due to the indisputability of the requirements and the need to comply with the pre-trial procedure for resolving the dispute by contacting a notary.
By the ruling of the court of appeal of January 20, 2022, the ruling of the district court of November 1, 2021 was canceled with the referral of the case materials to the same court for consideration of the dispute on the merits.
In accordance with the requirements of subparagraph 9) of paragraph 2 of Article 92-1 of the Law of the Republic of Kazakhstan "On Notaries", an executive inscription or a corresponding resolution is issued by a notary on indisputable claims for the recovery of wages and other payments accrued but not paid to an employee.
As follows from the content of the claim, the employment contract between the parties to the dispute was not concluded, therefore, the plaintiff's salary was not accrued, the claim for its recovery is based on a time sheet and a travel document.
These circumstances indicate the existence of a dispute between the parties related to the plaintiff's employment relationship with the defendant and the existence of wage arrears.
Consequently, the dispute was subject to consideration in court.
Terms of application for consideration of individual labor disputes (Article 160 of the Labor Code)
The following deadlines are established for applying to the conciliation commission or to the court for the consideration of individual labor disputes:
1) in disputes about reinstatement at work – one month from the date of delivery or sending by registered mail with 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 notification of delivery of a copy of the decision of the conciliation commission when applying for unresolved disputes or in case of non-fulfillment of its decision by the party to the employment contract;
2) in 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.
The duration of the application for consideration of individual labor disputes is suspended during the period of validity of the mediation agreement on the labor dispute in question, as well as in the absence of a conciliation commission before its creation.
In case of missing the established deadline for applying for valid reasons, the conciliation commission on labor disputes may restore the deadline for applying to the conciliation commission if there are valid reasons for missing and resolve the dispute on the merits.
The conciliation commission independently determines whether the reasons why an employee, including one who was previously in an employment relationship, did not apply to the conciliation commission within the established time frame are valid.
For participants in labor relations who have the right, in accordance with the Labor Code, to go to court without contacting the conciliation commission for the consideration of individual labor disputes, the following deadlines are set:
in case of 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;
in other labor disputes – one year from the day when an employee, including one who was previously in an employment relationship, learned or should have learned about a violation of his right.
It follows from the above provisions of the law that, upon consideration of individual labor disputes between the parties to an employment contract, the law establishes the procedure for pre–trial settlement of the dispute, with the inclusion of certain categories of employees, namely, contacting the conciliation commission and only after receiving a copy of the decision when applying for an unresolved issue or if the party to the employment contract fails to comply with its decision, to the court.
At the same time, in the absence of a conciliation commission, the time limit for the appeal is suspended until its creation, which does not entail the expiration of the time limit for the consideration of an individual labor dispute.
In accordance with paragraph 3 of Article 159 of the Labor Code, the procedure for the formation and activities of the conciliation commission are determined by an Agreement on the work of the conciliation commission or a collective agreement.
M. appealed to the court with a claim against LLP No. 1, LLP No. 2 for recognition of dismissal orders as illegal, collection of salary arrears, obligation to transfer mandatory pension contributions, deductions to the Social Health Insurance Fund.
By the decision of the Kordai district Court of Zhambyl region dated December 2, 2021, the claim was denied in full.
The court of first instance motivated the refusal to satisfy the claim by the fact that M., on the basis of employment contracts dated May 13, 2020, was hired as a supplier in LLP No. 1 and LLP No. 2.
The orders to dismiss the plaintiff were issued on the basis of his statements. According to the act of July 14, 2020, M. refused to familiarize himself with the order.
In court, the plaintiff's representative confirmed that the resignation letters were written by M. After the dismissal, the employer made a full settlement with him.
At the hearing, the defendant's representative filed a motion for the application of the statute of limitations, since the claim was filed after more than one year from the date of dismissal.
The plaintiff filed a lawsuit to challenge the dismissal orders on September 16, 2021, while the dismissal order was issued on July 13, 2020.
By the decision of the court of appeal of March 5, 2022, the court's decision was changed, the orders of LLP No. 1 and LLP No. 2 on the dismissal of the plaintiff from the position of supplier were declared illegal, wage arrears were collected from the defendants.
Changing the decision of the court of first instance in the case, the judicial board pointed out that the plaintiff appealed to the court with a demand for the recovery of wages, subsequently with a demand for recognition of the orders as illegal, as evidenced by judicial acts of the Kordai District Court dated May 18, 2021, July 1, 2021. In this regard, the plaintiff did not miss the statute of limitations.
The claims are filed by the plaintiff within a one-year period. In connection with the recognition of illegal dismissal orders, demands for the recovery of wages are subject to satisfaction.
According to the act of July 14, 2020, M. was acquainted with the dismissal orders, but refused to sign the act.
It follows from judicial acts that M. filed a lawsuit to recover wage arrears in March 2021. By a court decision dated May 18, 2021, the claim was dismissed.
However, he filed a lawsuit to challenge the dismissal orders on September 16, 2021, i.e. after more than 1 year and 2 months from the date of issuing the orders.
The plaintiff has not provided the court with sufficient and reliable evidence indicating the respectfulness of skipping the limitation period for applying to the court.
In this regard, the conclusions of the court of appeal on the cancellation of the judicial act of the court of first instance are unlawful.
Jurisdiction
In accordance with paragraph 5 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" dated October 6, 2017 No. 9 (hereinafter – NP), claims on disputes arising from labor relations are subject to presentation to the court according to the general rules of civil procedure at the location of the defendant – a legal entity the person or place of residence of the employer of the individual acting as a defendant in the dispute.
According to part 2 of Article 29 of the CPC, a claim against a legal entity is brought to court at the location of the legal entity according to the constituent documents and (or) the address entered in the National Register of Business Identification Numbers.
When filing claims at the location of a branch or representative office in accordance with the procedure provided for in part three of Article 30 of the CPC, only legal entities can be defendants.
The issues of jurisdiction in cases of the generalized category do not cause difficulties. So, by the definition of the Ust-Kamenogorsk City Court, the civil case on the claim of Zh. The LLP on recovery of damages, overtime pay, compensation for moral damage was transferred under the jurisdiction of the inter-district court for civil cases of Astana city, for consideration on the merits. The court's ruling is correct, since it is established that the defendant is a legal entity located and registered at:
Astana city, D.Konaeva Street, claims on disputes arising from labor relations are subject to presentation to the court according to the general rules of civil procedure at the location of the defendant. In addition, I consider it necessary to draw the attention of the courts to the requirements of Article 19 of the Labor Code, according to which the head of a branch or representative office of a foreign legal entity exercises all rights and performs all duties the employer on behalf of this legal entity.
Consequently, an employee has the right to file a claim at the location of a branch of a foreign legal entity, having previously checked the rights of the head of the branch to represent the interests of the legal entity.
The issue of determining the jurisdiction of labor disputes in the case of rehabilitation or bankruptcy of the employer.
Thus, by virtue of the provisions of part 8 of Article 35 of the CPC, cases on disputes arising within the framework of rehabilitation and bankruptcy procedures, including the recognition of transactions concluded by the debtor or a person authorized by him as invalid, on the return of the debtor's property, on the recovery of receivables from claims of a bankrupt or rehabilitation manager, are considered by the same judge, who have made a decision on the application of a rehabilitation procedure or on declaring the debtor bankrupt, with the exception of cases on disputes, the jurisdiction of which is established by Article 31 of the CPC.
By a ruling of the Aktobe City Court dated February 15, 2021, Zh.'s claim against LLP for the cancellation of orders on suspension from work, dismissal, reinstatement, recovery of wages for overtime, recovery of wages for forced absenteeism, recovery of penalties, moral damage was returned on the basis of subparagraph 2 of part 1 of Article 152 of the PC due to lack of jurisdiction dispute to this court.
Returning the claim, the court indicated that the decision of the Council of Economic and Social Affairs of the Aktobe region applied a rehabilitation procedure to the Partnership, and therefore, in accordance with part 8 of Article 35 of the CPC, the case is subject to consideration by the economic court.
Indeed, a rehabilitation procedure was applied to the Partnership by the decision of the SMEC of the Aktobe region Court of October 14, 2016, which entered into force.
By virtue of the provisions of subparagraphs 5, 7 of Article 67 of the Law of the Republic of Kazakhstan "On Rehabilitation and Bankruptcy", the court in the rehabilitation procedure accepts cases on property disputes in which the debtor acts as a defendant, and also resolves disputes between participants in the rehabilitation procedure.
According to subparagraph 16) of paragraph 1 of Article 1 of the Labor Code, a labor dispute is a disagreement between an employee (employees) and an employer (employers), including those who previously had an employment relationship, on the application of labor legislation of the Republic of Kazakhstan, the fulfillment or modification of the terms of agreements, labor and (or) collective agreements, acts of the employer.
It is established that the dispute between the parties arises from labor relations, is based on the norms of labor legislation and the terms of employment contracts and is not related to the implementation of the rehabilitation procedure.
Since the court incorrectly applied the provisions of part 8 of Article 35 of the CPC, the ruling of the judicial board of March 12, 2021 canceled the court's ruling with the transfer of the issue to a new trial in the court of first instance.
In cases of recognition of an employer as bankrupt or the application of a rehabilitation procedure, disputes arising from labor relations (on reinstatement, wage recovery, etc.) are subject to consideration and resolution in courts of general jurisdiction, the provisions of part 8 of Article 35 of the CPC do not apply to labor disputes.
State duty
According to the requirements of paragraph 7 of Article 610 of the Tax Code, the state fee is charged for 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, diminution or deprivation of personal non–property benefits and rights of individuals.
According to the requirements of Article 149 of the CPC, a document confirming payment of the state fee is attached to the claim.
In accordance with subparagraph 1) of Article 616 of the Tax Code, plaintiffs are exempt from paying state duty in courts – for claims for the recovery of wages and other claims related to work.
In case of satisfaction of the claim, the court, in accordance with Article 117 of the CPC, is obliged to collect a state fee to the state income from the defendant, who is not exempt from its payment.
Separate cases have been established when courts, in violation of subparagraph 2) of part 1 of Article 149 of the CPC, accept claims for court proceedings without paying a state fee.
It follows from the case materials that A. appealed to the court with a claim against the LLP for the recovery of wages, compensation for downtime, penalties, compensation for moral damage.
By the decision of the Zhetysu District Court of Almaty dated April 13, 2022, upheld by the decision of the judicial board for civil Cases of the Almaty City Court, wage arrears, penalties, compensation for moral damage, and expenses for paying for the assistance of a representative were collected from LLP in favor of A.
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.
The statute of limitations on labor disputes
In accordance with paragraph 2 of Article 179 of the Civil Code, the limitation period is applied by the court only upon the application of the party to the dispute made before the court's decision
The court is obliged to accept the claim for consideration regardless of the expiration of the limitation period.
The refusal or return of the application is unacceptable due to the expiration of the statute of limitations. Compliance with the statute of limitations or their expiration, the presence of valid reasons for missing the deadline for applying to the court should be checked when considering the dispute.
In the absence of a statement on the application of the limitation period before the decision is made, the dispute is resolved on its merits.
So, the plaintiff S. appealed to the court with a claim to the Institution for reinstatement at work and recovery of wages for the time of forced absenteeism. By the decision of the district court No. 2 of the Baiterek district of the West Kazakhstan region dated November 29, 2021, the claim was reasonably denied in connection with the omission of the statute of limitations on the basis of the defendant's application.
The court motivated its conclusions by the fact that the plaintiff filed a lawsuit on October 27, 2021, whereas the order to terminate the contract was issued on June 11, 2020.
The plaintiff did not provide sufficient and reliable evidence of the validity of the reasons for missing the deadline for applying to the court.
The case was not considered on appeal.
Regulatory framework The main regulatory legal acts to be applied in the consideration of cases of the generalized category are
· The Constitution of the Republic of Kazakhstan; the Civil Code of the Republic of Kazakhstan (General Part) dated December 27, 1994;
· The Civil Code of the Republic of Kazakhstan (Special Part) of July 1, 1999 (hereinafter – the Civil Code);
· Civil Procedure Code of the Republic of Kazakhstan dated October 31, 2015 No. 377- V (hereinafter – CPC);
· The Labor Code of the Republic of Kazakhstan dated November 23, 2015 No. 414- V ZRK (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 – NK);
· Business Code of October 29, 2015 No. 375-V of the SAM; Code of the Republic of Kazakhstan dated July 7, 2020 No. 360-VI of the SAM "On the health of the people and the healthcare system";
· 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 bailiffs";
· 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 some issues of the application of legislation by courts in the settlement of labor disputes" dated October 6, 2017 No. 9;
· "On the application by courts of legislation on compensation for moral damage" dated November 27, 2015 No. 7;
· "On the court decision on civil cases" dated July 11, 2003 No. 5;
· "On the application by the courts of the Republic of Kazakhstan of legislation on court costs in civil cases" dated December 25, 2006 No. 9.
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