Is paying bonuses an employer's right or duty?
The analysis showed that there was an ambiguous practice in the courts of the republic on such disputes. K. appealed to the State Revenue Administration for the city of Kostanay with a claim for payment of a premium.By the decision of the Kostanay City Court of October 5, 2022, the claim was dismissed on the grounds that encouragement, including the payment of bonuses, is the right of the employer.
The Court of Appeal found this conclusion of the court to be unjustified, since bonus orders were issued against all employees of the Department, and only employees who had outstanding disciplinary penalties were deprived of bonuses. Since, according to the case file, bringing the plaintiff to disciplinary responsibility was recognized by the court as illegal and canceled, his right to bonuses was subject to restoration.
By a decision of the judicial board for Civil Cases dated November 29, 2022, the court's decision was overturned with a new decision on the satisfaction of the claim in full.By the decision of the judge of the Supreme Court dated May 29, 2023 (3g-2595), the transfer of the petition for cassation review of the decision of the appellate instance was granted.
N. appealed to the court with a claim to the RSE on PCV for recognition of the order as illegal and its cancellation, recovery of additional payments to wages and bonuses.By the decision of the court of the Baikonur district of Astana dated October 20, 2022, the claim was denied.
By the resolution of the Judicial Board for Civil Cases of the Astana City Court dated January 10, 2023, the court's decision was changed, regarding the refusal to recognize the order dated July 29, 2022 on the imposition of disciplinary punishment in the form of a reprimand as illegal and its cancellation, it was canceled, in this part a new decision was made to satisfy the claim. The court's decision regarding the refusal to pay the additional payment and bonus remained unchanged.
In refusing to satisfy the requirements regarding the imposition of the obligation to make payroll and bonus payments, the courts pointed out that the issue of bonuses and other forms of incentive for employees is the right and sole decision of the employer. By the decision of the judge of the cassation instance dated April 17, 2023, the transfer of the petition for the review of judicial acts in cassation was refused (3g-716(2).
When resolving such disputes involving civil servants, it should be borne in mind that Resolution No. 1127 of the Government of the Republic of Kazakhstan dated August 29, 2001 approved the Rules for Awarding Bonuses, providing financial assistance and establishing allowances to official salaries of employees of the Republic of Kazakhstan at the expense of the state budget, as well as the payment of bonuses to administrative civil servants (hereinafter referred to as Rules No. 1127).
Paragraph 1-2 of Rules No. 1127 establishes that bonuses, financial assistance and the establishment of allowances for official salaries of employees of government agencies are carried out by decision of: 1) the head of the state body – the administrator of the budget program (subprogram) or the person replacing him; 2) the head of the staff, agreed with the head of the central state body.
By virtue of paragraph 2 of Rules No. 1127, the persons listed in paragraphs 1-2 of these Rules have the right to independently develop and approve regulations on bonuses for employees of these bodies, while being guided by these Rules.
The main indicators characterizing the results of an employee's activity, which give the right to his bonus, are provided for in paragraph 3 of the Rules.
In accordance with paragraph 4 of Rules No. 1127, employee bonuses are not provided.: 1) if he has a disciplinary penalty that has not been lifted; 2) who has worked in the relevant body for less than one month; 3) during the probation period.
Consequently, if an employee was deprived of a bonus only because he had a disciplinary penalty that had not been lifted, despite the fact that the entire team was awarded, upon recognition as illegal and cancellation of the disciplinary action order, the claims of such an employee to recover the unpaid bonus must be satisfied.
If we are talking about awarding individual employees, for example, for exemplary performance of official duties, impeccable public service, performing tasks of particular importance and complexity, performing urgent and unforeseen work in advance, and other achievements in their work, then it should be assumed that this is the right of the head of a government agency.
It should be noted that a draft law on the initiative of deputies of the Mazhilis of Parliament is currently being discussed, which proposes amendments to labor legislation regarding bonuses, including for employees who have disciplinary action.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
