Jurisdiction over Cases Challenging an Order Terminating an Employment Contract, Seeking Reinstatement to a Former Position, and Recovery of Wages
Pursuant to Article 26 of the Civil Procedure Code, civil cases of this category are heard by district courts and courts equivalent thereto.
M. filed a claim against the State Institution “Department for the Coordination of Employment and Social Programs of the East Kazakhstan Region” seeking reinstatement to work.
By a ruling of the Ust-Kamenogorsk City Court dated 26 August 2021, the statement of claim was returned on the grounds that the case fell within the jurisdiction of a specialised inter-district administrative court.
The appellate court held that the ruling of the court of first instance was subject to cancellation on the following grounds.
Pursuant to Article 102(2) of the Administrative Procedure and Procedural Code of the Republic of Kazakhstan (hereinafter referred to as the “APPC”), disputes arising from public-law relations fall within the jurisdiction of the courts under administrative judicial proceedings. In accordance with Article 3(7)(2) of the APPC, cases for which the procedure for proceedings is provided for by the civil procedural legislation of the Republic of Kazakhstan are not subject to consideration under administrative judicial proceedings.
Disputes arising from public-law relations are disputes between subjects of public-law relations, involving relations of authority and subordination, in which one party is vested with public powers in relation to the other party.
The subject matter of M.’s claim, however, is an employment dispute related to challenging an order terminating the employment contract, reinstatement to the former position, recovery of wages, and compensation for moral damage.
The position of the Judicial Panel for Civil Cases of the East Kazakhstan Regional Court on this issue should be recognised as correct.
The Judicial Panel for Administrative Cases of the Supreme Court of the Republic of Kazakhstan adheres to the same position. By its Resolution dated 18 August 2022 (No. 6ap/431), it upheld the ruling of the Specialised Inter-District Administrative Court of the Zhambyl Region dated 6 December 2021 and the ruling of the Judicial Panel for Administrative Cases of the Zhambyl Regional Court dated 12 January 2022.
By the above judicial acts, M.’s claim against the Republican State Institution “Department of State Revenue for the City of Taraz” seeking recognition as unlawful of the conclusion following an internal investigation and the decision of the disciplinary commission was returned pursuant to Article 138(2)(11) of the APPC, on the grounds that the case was not subject to consideration under administrative judicial proceedings.
In upholding the judicial acts of the local courts, the court of cassation stated the following.
Pursuant to Article 4(9) of the APPC, an administrative claim (action) is a claim filed with a court for the purpose of protecting and restoring violated or disputed rights, freedoms, or legitimate interests arising from public-law relations.
The challenged conclusion and the decision of the disciplinary commission do not constitute administrative acts of a state body adopted within the framework of public-law relations, do not create rights or obligations for the claimant, and are advisory in nature.
Moreover, the said documents were assessed in judicial acts as evidence in the course of the claimant’s challenge to the order dismissing him from his position.
Jurisdiction over disputes of this category is determined in accordance with the general rules established by Article 29 of the Civil Procedure Code, according to which claims are filed with the court at the defendant’s place of location.
The Judicial Panel for Civil Cases of the East Kazakhstan Regional Court set aside the decision of the Ust-Kamenogorsk City Court in the case concerning K.’s claim against the Ministry of Ecology, Geology and Natural Resources of the Republic of Kazakhstan (hereinafter referred to as the “RK”) seeking cancellation of an order imposing a disciplinary sanction, on the grounds that the case was subject to consideration at the defendant’s place of location in the city of Astana.
Pursuant to Article 30(12) of the Civil Procedure Code, a claim against several defendants may, at the claimant’s discretion, be filed with the court at the place of location of one of the defendants.
E. filed a claim against the Republican State Institution “Transport Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan” and the State Institution “Kandyagash Station Police Department” seeking cancellation of an order.
By a ruling of the Mughalzhar District Court, the case was transferred, according to territorial jurisdiction, to the Saryarka District Court of the city of Astana, at the place of location of the defendant, the Transport Police Department.
In setting aside the ruling of the court of first instance, the appellate court stated that the second defendant in the case was the State Institution “Kandyagash Station Police Department”, with which the claimant was in an employment relationship. Therefore, filing the claim at the place of location of one of the defendants constituted the claimant’s right.
State Duty
In accordance with subparagraph 1) of Article 616 of the Tax Code, plaintiffs are exempt from payment of state duty in courts in claims for the recovery of amounts of remuneration for work and other claims related to employment activities.
Consequently, the plaintiff is not required to pay state duty on claims seeking recognition as unlawful and cancellation of an order, reinstatement to a former position, recovery of wages for the period of enforced absence from work, or recovery of other payments, including unpaid wages, compensation for unused annual leave, and other similar payments.
At the same time, it should be taken into account that labour legislation does not provide for the recovery of compensation for moral damage. When such claims are satisfied, courts, in accordance with paragraph 14 of the Regulatory Resolution of the Supreme Court “On the Application by Courts of Legislation on Compensation for Moral Damage”, are guided by Article 24 of the Constitution of the Republic of Kazakhstan and the provisions of Chapter 47 of the Civil Code (Articles 951 and 952). Consequently, state duty is payable on statements of claim containing a demand for compensation for moral damage at the rate of 50 per cent of the monthly calculation index (hereinafter referred to as the “MCI”), as for a non-property claim.
In accordance with Article 117 of the Civil Procedure Code, the state duty from which the plaintiff was exempt, as well as the costs associated with the proceedings in the case, shall be recovered from the defendant, who is not exempt from the payment of court costs, in favour of the State in full or in proportion to the part of the claim that has been satisfied.
According to paragraph 16 of the Regulatory Resolution of the Supreme Court “On the Application by Courts of the Republic of Kazakhstan of Legislation on Court Costs in Civil Cases”, the rate of state duty is determined depending on whether the plaintiff is an individual or a legal entity.
Consequently, where a claim for the recovery of wages is satisfied, state duty shall be recovered from the defendant in favour of the State in the amount of 1 per cent of the amount claimed, as well as in the amount of 50 per cent of the MCI for all claims of a non-property nature.
In accordance with Article 109 of the Civil Procedure Code, the court shall award to the party in whose favour the judgment has been rendered all court costs incurred in connection with the case, to be recovered from the other party.
Where a claim filed by a legal entity against an employee for compensation for material damage is satisfied, the state duty paid by the plaintiff in the amount of 3 per cent of the amount claimed shall be recovered from the employee in favour of the plaintiff.
By Regulatory Resolution No. 3 of the Constitutional Court of the Republic of Kazakhstan dated 22 February 2023, the provisions of Article 610(2) of the Tax Code, insofar as they contained the words “upon filing an administrative claim, statement of claim (application) in such disputes”, were declared inconsistent with Article 13(2) and Article 14 of the Constitution of the Republic of Kazakhstan, as they resulted in the infringement and restriction of everyone’s constitutional right to judicial protection of their rights and freedoms.
By the Law of the Republic of Kazakhstan No. 213-VII dated 20 March 2023, amendments were introduced to Article 610 of the Tax Code, and paragraph 2 was set out in the following wording:
“State duty on petitions for the review of judicial acts by way of cassation concerning rulings on matters of setting aside arbitral awards and issuing writs of execution for the compulsory enforcement of arbitral awards and judgments of foreign courts, as well as judgments and rulings of courts in disputes of a non-property and property nature, shall be charged at the rate of 50 per cent of the relevant state duty rate established by paragraph 1 of this Article for the applicant.”
It follows that, upon filing a cassation petition for the review of judicial acts concerning the recovery of material damage from an employee acting as the defendant, state duty shall be charged at 50 per cent of the relevant state duty rate applicable to individuals, that is, at 1 per cent of the amount claimed rather than 3 per cent of the amount claimed.
Below is the English translation in formal legal terminology and style.
Pre-Trial Dispute Resolution Procedure and Time Limit for Applying to Court
Article 159 of the Labour Code provides for a mandatory pre-trial procedure for resolving individual labour disputes through consideration of the dispute by a conciliation commission.
At the same time, this provision contains a number of exceptions.
The requirement to establish a conciliation commission for consideration of individual labour disputes in accordance with the procedure prescribed by this Code does not apply to certain categories of employees whose employment is regulated by the Labour Code of the Republic of Kazakhstan subject to the specific features provided for by special laws and other regulatory legal acts of the Republic of Kazakhstan, including persons in military service, employees of special state and law enforcement bodies, and civil servants.
Thus, the law does not provide for a pre-trial procedure for resolving labour disputes for civil servants and employees of law enforcement bodies.
A. filed a claim with the court against the State Institution “Department of Healthcare of the East Kazakhstan Region” seeking cancellation of an order.
By a ruling of the Ust-Kamenogorsk City Court dated 25 March 2021, the statement of claim was returned pursuant to subparagraph 1) of paragraph 1 of Article 152 of the Civil Procedure Code.
The court justified the return of the claim on the grounds that the dispute was subject to consideration by the defendant’s conciliation commission.
The ruling was not appealed. However, as correctly indicated in its analysis by the Judicial Panel for Civil Cases of the East Kazakhstan Regional Court, the said ruling was contrary to the requirements of paragraph 1 of Article 159 of the Labour Code.
The Almaty Regional Court adopted a different position.
By a ruling of the City Court of Konaev dated 17 August 2022, the civil case concerning S.’s claim against the Akim of the city of Konaev (Kapshagay) seeking reinstatement was left without consideration pursuant to subparagraph 1) of Article 279 of the Civil Procedure Code.
By a ruling of the Judicial Panel for Civil Cases of the Almaty Regional Court dated 16 November 2022, the ruling of the court of first instance was left unchanged.
The courts justified their decisions by stating that, pursuant to the meaning of paragraphs 1 and 2 of Article 159 of the Labour Code, disputes were subject to mandatory consideration by a conciliation commission. At the same time, the courts failed to take into account that the requirement to establish a conciliation commission does not apply to civil servants.
The Pavlodar Regional Court proposes that the establishment of conciliation commissions in law enforcement bodies be provided for at the legislative level, which would enable conflicts to be resolved internally, at the workplace, within a short period of time.
Such a proposal appears debatable, since, pursuant to Article 4 of the Law “On Law Enforcement Service”, one of the special principles of law enforcement service is the principle of unity of command and subordination, which precludes the establishment of a conciliation commission on a parity basis consisting of rank-and-file employees and heads of a law enforcement body.
Pursuant to subparagraph 10) of paragraph 1 of Article 4 of the Law “On Civil Service”, one of the fundamental principles of civil service is the mandatory nature, for subordinate civil servants and civil servants of lower-level state bodies, of decisions adopted by higher state bodies and officials within the scope of their powers.
The proposal of the North Kazakhstan Regional Court to introduce such a mandatory pre-trial procedure for resolving disputes involving civil servants and employees of law enforcement bodies as applying, in accordance with the chain of command, to higher-ranking officials and higher-level bodies may be supported. At present, such a right is provided as an alternative procedure under subparagraph 11) of Article 15 of the Law “On Law Enforcement Service” and paragraph 5 of Article 61 of the Law “On Civil Service”.
Pursuant to Article 160 of the Labour Code, the following time limits are established for participants in employment relations who, in accordance with this Code, are entitled to apply to court without first applying to a conciliation commission for consideration of individual labour disputes:
- for disputes concerning reinstatement at work – three months from the date of delivery or dispatch by registered mail with acknowledgement of receipt of a copy of the employer’s act on termination of the employment contract;
- for other labour disputes – one year from the date on which the employee, including a person who was previously in an employment relationship, became aware or should have become aware of the violation of his or her right.
By an order of the Head of the Police Department of the North Kazakhstan Region dated 24 December 2020, S. was dismissed from the internal affairs bodies. On 11 February 2022, the claimant filed a claim with the court.
By a judgment of Court No. 2 of Petropavlovsk dated 11 March 2022, the claim was dismissed.
The court of first instance correctly concluded that the claimant had, without valid reasons, missed the time limit for applying to court established by subparagraph 1) of Article 160 of the Labour Code.
By a judgment of Court No. 2 of Uralsk dated 24 September 2021, which was upheld by the appellate court, the claim of Zh. against the State Institution “Fire-Fighting and Emergency Rescue Service” seeking reinstatement was dismissed.
The claimant challenged his dismissal pursuant to an order dated 24 February 2017. At the preliminary hearing, the defendant’s representative filed a motion requesting application of the limitation period, while the claimant failed to provide evidence establishing valid reasons for missing the time limit. This circumstance served as the basis for dismissing the claim.
The position of the Judicial Panel of the West Kazakhstan Regional Court that, when deciding whether there are grounds for restoring the limitation period, the court should be guided by Article 185 of the Civil Code should be supported.
Regulatory Framework
The main regulatory legal acts applicable to the consideration of cases in this category are as follows:
The Constitution of the Republic of Kazakhstan;
The Civil Code of the Republic of Kazakhstan (General Part) dated 27 December 1994; the Civil Code of the Republic of Kazakhstan (Special Part) dated 1 July 1999 (hereinafter referred to as the “Civil Code”);
The Civil Procedure Code of the Republic of Kazakhstan dated 31 October 2015 No. 377-V (hereinafter referred to as the “Civil Procedure Code”);
The Labour Code of the Republic of Kazakhstan dated 23 November 2015 No. 414-V ZRK (hereinafter referred to as the “Labour Code”);
The Code of the Republic of Kazakhstan “On Taxes and Other Obligatory Payments to the Budget” (Tax Code) dated 25 December 2017 No. 120-VI ZRK (hereinafter referred to as the “Tax Code”);
The Law of the Republic of Kazakhstan dated 23 November 2015 No. 416-V ZRK “On Civil Service of the Republic of Kazakhstan” (hereinafter referred to as the “Law on Civil Service”);
The Law of the Republic of Kazakhstan dated 6 January 2011 No. 380-IV “On Law Enforcement Service” (hereinafter referred to as the “Law on Law Enforcement Service”);
The Law of the Republic of Kazakhstan dated 23 April 2014 No. 199-V ZRK “On Internal Affairs Bodies of the Republic of Kazakhstan”;
The Law of the Republic of Kazakhstan dated 18 November 2015 No. 410-V ZRK “On Combating Corruption”;
The Code of Ethics for Civil Servants of the Republic of Kazakhstan, approved by Decree No. 153 of the President of the Republic of Kazakhstan dated 29 December 2015;
Decree No. 152 of the President of the Republic of Kazakhstan dated 29 December 2015, approving:
the Rules and time limits for conducting performance assessments of civil servants;
the Rules and time limits for rotation, as well as the categories and positions of civil servants subject to rotation;
the Rules for imposing disciplinary sanctions on civil servants;
Regulatory Resolutions of the Constitutional Court of the Republic of Kazakhstan:
dated 6 March 2023 No. 4 “On consideration of the issue of compliance with the Constitution of the Republic of Kazakhstan of subparagraph 6) of paragraph 3 of Article 16 of the Law of the Republic of Kazakhstan ‘On Civil Service of the Republic of Kazakhstan’”;
dated 22 February 2023 No. 3 “On consideration of the issue of compliance with the Constitution of the Republic of Kazakhstan of subparagraph 1) of paragraph 1 and paragraph 2 of Article 610 of the Code of the Republic of Kazakhstan dated 25 December 2017 ‘On Taxes and Other Obligatory Payments to the Budget’ (Tax Code)”;
Regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan:
No. 9 dated 6 October 2017 “On Certain Issues of Application by Courts of Legislation in Resolving Labour Disputes”;
No. 7 dated 27 November 2015 “On Application by Courts of Legislation on Compensation for Moral Damage”;
No. 5 dated 11 July 2003 “On a Judicial Decision in Civil Cases”;
No. 9 dated 25 December 2006 “On Application by Courts of the Republic of Kazakhstan of Legislation on Court Costs in Civil Cases”.
Order No. 246 of the Minister of Internal Affairs of the Republic of Kazakhstan dated 27 May 2011 “On Certain Issues of Service in the Internal Affairs Bodies of the Republic of Kazakhstan” (hereinafter referred to as “Order No. 246”).
It was repealed by Order No. 830 of the Minister of Internal Affairs of the Republic of Kazakhstan dated 22 October 2022.
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