Labor disputes about the recovery of wages from an employer with whom an employment agreement has not been concluded
There are cases when the court decides to dismiss claims for the recovery of wages from an employer with whom they do not have an employment relationship. At the same time, the claims do not require recognition of the employment relationship. Despite the fact that such claims are not actually claims for recognition of an employment relationship, in court proceedings on such claims, the court always examines the existence of an employment relationship between the parties.
When considering such cases, the court considers it correct to proceed from the general rule that when resolving a dispute, the burden of proving the absence of an employment relationship with an employee lies with the employer.
In accordance with paragraph 7 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 9 dated 12/19/2003, the nature of the employment relationship may be indicated by circumstances when an employee performs certain work in a specific specialty, qualification, position, obeys the rules of the internal labor regulations, and the employer pays him wages and provides working conditions stipulated by law.
Disputes in this category are characterized by the fact that the employer defendants, in the absence of proper financial documentation and personnel records confirming the employee's employment, salary, and working conditions, usually shy away from appearing in court and providing written evidence.
By the decision of the Pavlodar City Court of February 17, 2016, the claim of S.R.Z. to LLP "...." for the recovery of wage arrears and compensation for moral damage was denied, since the court found that the plaintiff and the defendant did not have an employment relationship, as evidenced by the absence of any documents confirming admission to the work and the plaintiff's performance of the work. In rejecting the claim in full, the court stated in its decision that, in accordance with Article 34 of the Labor Code, employment is formalized by an act of the employer issued on the basis of an employment contract. In violation of the requirements of Articles 72-73 of the CPC, the plaintiff did not provide the court with acceptable, relevant and sufficient evidence confirming his employment in LLP "...". The court did not recognize A.m.A.'s written receipt as the basis for collecting wages in connection with the plaintiff's employment relations in LLP ".", since there are obligations under this receipt in front of the plaintiff S.R.Z. at the very A. M.A., and not at the defendant LLP.".
Also, by the decision of the Abaysky District Court of Shymkent dated June 14, 2016, the claim of A.M.R. to IP K.A.V. for recovery of the amount of salary debt and other claims was denied, since the court found that the plaintiff and IP K.A.V. had an employment relationship provided for by the labor legislation of the Republic of Kazakhstan, the Labor Code of the Republic of Kazakhstan, the Labor Code of the Republic of Kazakhstan, the Labor Code of the Republic of Kazakhstan, the Labor Code of the Republic of Kazakhstan, the Labor Code of the Republic of Kazakhstan, the Labor Code of the Republic of Kazakhstan, the Labor Code of the Republic of Kazakhstan, the Labor Code of the Republic of Kazakhstan, the and there were no collective agreements, that is, the parties had never been in an employment relationship, the absence of a written employment contract or other agreement was not denied by the plaintiff himself. The plaintiff did not prove that he actually worked and was in an employment relationship with the employer, performed certain work under an employment contract, followed the rules of the labor code, the defendant did not provide the plaintiff with working conditions, wages were not set, no personnel decisions were made regarding the plaintiff, no employment order was issued. The plaintiff's wage debt in the amount of 740,000 tenge was not determined and was not calculated in writing. In addition, it can be seen from the letter of the State Institution "Labor Inspection Department for the South Kazakhstan region" that the plaintiff, as an employee, did not and does not have an employment relationship with the employer represented by entrepreneur K..
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