Labor disputes - about the termination of an employment contract as invalid, reinstatement to the position of deputy director
B. filed a lawsuit with JSC "V" to declare paragraph 7 of the order dated September 25, 2019 on the termination of the employment contract invalid, reinstatement to the post of Deputy Director for Operation of the Almaty branch for the repair of passenger cars of JSC "V", recovery of wages for forced absenteeism and compensation for moral damage in the amount of 1,000,000 tenge. The claim was dismissed by the decision of the Zhetysu District Court of Almaty dated February 12, 2020. By the decision of the Judicial Board for Civil Cases of the Almaty City Court dated June 11, 2020, the decision of the court of first instance remained unchanged. The Judicial Board for Civil Cases of the Supreme Court upheld the judicial acts of local courts on the following grounds. In the case, it was established that B. worked as Deputy Director of operation of the Almaty branch for the repair of passenger cars of JSC "V". On June 12, 2018, the parties signed an agreement on full financial liability. On January 3, 2019, by Order No. 27, a working commission for the acceptance of inventory was established, and B. was appointed deputy chairman of this commission.
Labor disputes - about the termination of an employment contract as invalid, reinstatement to the position of deputy director
By the employer's Order No. 145/CLVS dated September 25, 2019, labor relations with B. terminated with reference to subparagraph 4) of paragraph 1 of Article 64 and subparagraph 13) of paragraph 1 of Article 52 of the Labor Code of the Republic of Kazakhstan, providing for dismissal on the initiative of the employer for committing culpable acts or inaction of an employee serving monetary or commodity values, as well as using his official position in his own interests or in the interests of a third party contrary to the interests of the employer in return obtaining material or other benefits for oneself or others, if these actions or omissions give grounds for the loss of confidence in him on the part of the employer. The basis for issuing the above order was the minutes of the operational meeting of JSC "V" dated September 25, 2019, at which the results of the inventory drawn up by the act dated September 19, 2019, were the subject of consideration. During the inventory of inventories (hereinafter referred to as TMZ) and fixed assets listed on the balance sheet of the Almaty branch for the repair of passenger cars of JSC "V", the accountable persons revealed a shortage of TMZ in the total amount of 60,127,321.10 tenge, a surplus of TMZ in the amount of 2,300,883.39 tenge. Based on the results of the inventory and the operational meeting of B. improper performance of official duties was imputed, resulting in inaction, as a result of which the safety of stocks of basic carriage parts and materials for maintenance of passenger wagons was not ensured, which led to a shortage of TMZ. In addition, it is stated that, as deputy chairman of the TMZ acceptance commission, B. allowed the acceptance of goods that did not meet the required technical specifications, giving grounds for the loss of confidence in him on the part of the employer. B.'s demands in the present case. He explained that according to his job description, his duties include ensuring the safety of passenger trains and monitoring the quality of maintenance of passenger cars, he is not responsible for the acceptance of goods. Control over the acceptance, availability, and storage of TMZ is carried out by the supply department, which is defined in the structure of the Almaty branch for the repair of passenger cars of JSC "V". The Zhetysu district Court refused to satisfy the claim, the Almaty City Court upheld the decision of the court of first instance by pointing out that B., being the deputy director of operation of the Almaty branch for the repair of passenger cars of JSC "V" and the deputy chairman of the commission established to ensure proper control over the acceptance of TMZ, did not properly fulfill his duties. duties, as a result of which TMZ was accepted, in part not corresponding to the required technical parameters (manufacturer, date of manufacture, etc.) and not suitable for use in the maintenance of passenger cars, the safety of stocks of basic carriage parts and materials for the maintenance of passenger cars was not ensured.
Labor disputes - about the termination of an employment contract as invalid, reinstatement to the position of deputy director
The courts took into account that B. was familiar with the order of January 3, 2019 No. 27 on the establishment of a working commission for the acceptance of TMZ, was aware of the objectives of the formation of this commission, but in fact, for the most part did not participate in the work of the commission, avoiding the assigned task of ensuring proper acceptance of the main wagon parts and materials received by the enterprise., other TMZ necessary for high-quality maintenance of passenger cars. In addition, the facts of B.'s repeated involvement are taken into account. (by orders dated January 18, February 4, September 18, 2019) to disciplinary responsibility for an increase in failures of technical equipment of passenger cars en route, omission of control over compliance with the technology of production and maintenance of passenger cars, lack of control over the technical condition of the equipment of the car en route, as well as the executive and technological discipline of employees. Under the above-mentioned circumstances, the local courts concluded that there was a causal relationship between the shortage of inventory in the Almaty branch for the repair of passenger cars of JSC "B" and B.'s improper performance of his official duties and, accordingly, the legality of the termination of the employment contract with him by Order No. 145 dated September 25, 2019/CLVS on the grounds of loss of trust in him on the part of the employer. In accordance with part 3 of Article 427 of the Civil Procedure Code of the Republic of Kazakhstan, a substantially correct court decision cannot be overturned for purely formal reasons. There is no evidence of a significant violation by lower courts of the norms of law, entailing the recognition of the contested judicial acts as unlawful. Recognizing, in such circumstances, the refusal of the court of first instance to satisfy B.'s claim as justified. and the rejection of his appeal by the court of appeal, the judicial board of the Supreme Court found no grounds for the absence of grounds for the cancellation or amendment of judicial acts in the case in cassation.
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