Labor disputes | Recovery of travel expenses | Collection of representation and court expenses
District Court No. 2 of Almaly district of Almaty, composed of the presiding judge Kazhyken U.K., with secretary R.A. Khamitov, with the participation of a representative of the plaintiff With V.P., acting on the basis of a power of attorney dated May 3, 2017, a representative of the defendant Sarzhanov G.T., acting on the basis of a power of attorney dated September 20, 2017, director of LLP "...." E.V.K., having considered in open court with the use of audio and video recording the civil case on the claim of AZH-US to LLP "....." for the recovery of travel and court expenses. Plaintiff ALREADY.S. He filed this claim with the court, arguing that, in accordance with his employment contract dated October 10, 2016, he worked at ... LLP as a tax consultant to perform certain work – providing services under an agreement with Kazmunaygas – Processing and Marketing JSC with a piece-rate salary of 405,000 tenge..
The plaintiff was sent by the defendant to Astana to conduct a tax audit at Kazmunaygas – Refining and Marketing JSC (hereinafter - Kazmunaygas-PM JSC). The time spent on a business trip was 42 days. In "/////" LLP, the daily allowance is set at 6 MCI per day. In 2016, the MCI was 2,121 tenge, therefore, the daily allowance for the period of his business trip amounted to 534,492 tenge (2,121 tenge x6 x 42). Travel from Almaty to Astana and back on the Talgo train in 2016 amounted to approximately 14,800 tenge in one direction. Thus, the plaintiff paid 29,600 tenge for the trip. The exact amount for the trip is indicated in the tickets, which the plaintiff submitted together with the advance report to the accounting department of the LLP. "..........". The amount of work stipulated in the employment contract was completed by him, the defendant's work was accepted and paid for. However, the defendant has not advanced his trip, nor has he paid his daily allowance or travel so far. Thus, the request to recover the defendant's debt to him amounted to 564,092 tenge, as well as the costs of paying for the services of a representative in the amount of 56,400 tenge.
Labor disputes | Recovery of travel expenses | Collection of representation and court expenses
At the hearing, the plaintiff's representative, S.V.P., supported the claim and requested that it be satisfied in full. The representative of the defendant, Sarzhanov G.T., did not agree with the claim, and requested that it be dismissed on the grounds set out in the written response. Having examined the case materials, having heard the explanations of the parties, in their entirety, having determined the range of circumstances relevant for the proper resolution of the case, the court comes to the following. Within the meaning of article 14 of the International Covenant on Civil and Political Rights, ratified in the Republic of Kazakhstan by the Law of November 28, 2005, a person determines the scope of his rights and obligations in civil proceedings. Therefore, a person, having defined his rights, exercises them at his discretion. The disposal of one's rights at the discretion of a person is one of the fundamental principles of judicial proceedings. According to part 36 of Article 1 of the Labor Code (hereinafter referred to as the Labor Code), an employment contract – a written agreement between an employee and an employer, according to which the employee undertakes to personally perform a certain job (labor function), comply with the labor regulations, and the employer undertakes to provide the employee with work according to the stipulated labor function, to ensure the working conditions provided for by this Code, the laws of the Republic of Kazakhstan and other regulatory legal acts of the Republic of Kazakhstan, a collective agreement, the employer must pay the employee's salary on time and in full. Thus, according to the employment contract concluded between the parties on October 10, 2016, the employer of .... LLP accepted the plaintiff as an employee to perform certain work and services under an agreement with Kazmunaygas–PM JSC, subject to the employer's work schedule, and the employee agrees to be accepted by the employer under the terms of this agreement. This contract has not been challenged by anyone, has not been invalidated, and the fact of its conclusion is not disputed by any of the parties, which leads to the conclusion that all the conditions reflected in this employment contract are legally binding.
From the literal interpretation of the subject of the employment contract (section 1 of the employment contract), it follows that the plaintiff was hired by the defendant as a tax consultant to perform certain work – services under an agreement with Kazmunaygas-PM JSC. At the same time, it was established that Kazmunaygas-PM JSC is permanently located in Astana, at the address: 1 Turan Avenue, Yesil district, Astana. Thus, according to the act of completed works (services rendered) dated December 30, 2016, where the customer indicated Kazmunaigas - Refining and Marketing JSC, and the contractor - .... LLP, the customer paid 5,752,500 for the preparation of an audit of tax reporting on the correctness of tax accounting of the enterprise for the period 2013-2015. tenge. It follows from clause 3.3 of the Employment Contract that the employee, that is, in this case, the plaintiff, can be sent both within the Republic of Kazakhstan and abroad to perform official tasks related to the performance of official duties. That is, it follows from the interpretation of this subparagraph of the employment contract that the parties who concluded this contract established mutual conditions that the plaintiff can be seconded. Consequently, the business trip in this case could have been assigned to an employee, that is, to the plaintiff, or it could have been not assigned. This leads to the conclusion that proper registration of a business trip with the issuance of an order (instruction) from the employer and other documents was a prerequisite in this case, that is, it does not follow from the terms of the employment contract that the plaintiff's work is, in fact, of a business trip nature. Thus, the plaintiff's reference only to the employment contract is untenable to satisfy the present claim. At the same time, it was established that Kazmunaygas - PM JSC is permanently located in Astana, as indicated by the certificate, and is not disputed by the parties. The plaintiff was supposed to provide work in Astana, that is, the employee's permanent business trip in Astana was not the subject of an employment contract, this is not specified in the employment contract. According to paragraph 82 of the above–mentioned article of the Labor Code, a business trip is the transfer of an employee by order of the employer to perform work duties for a certain period of time outside the place of permanent work to another locality, as well as the transfer of an employee to another locality for training, advanced training or retraining.
In accordance with articles 72 and 73 of the Code of Civil Procedure (hereinafter referred to as the CPC), each party must prove the circumstances to which it refers as the grounds for its claims and objections. The evidence is presented by the parties and other persons involved in the case to the court of first instance and examined in court proceedings. The content of each piece of evidence that a party refers to as the basis of claims or objections to them must be disclosed during the court proceedings in which this evidence is being examined. A person has the right to refer only to the evidence that was disclosed during the trial. Failure to provide the evidence held by the party to the court of first instance precludes the possibility of presenting this evidence to the court of appeal or supervisory authorities, with the exception of the cases provided for by this Code. However, the plaintiff has not provided sufficient evidence to confirm that there is a corresponding order from the employer, that the employer issued a travel certificate. The term of the employment contract is specified as one year. At the same time, there is no evidence that the plaintiff was sent for a certain period (within a one-year period) outside his place of permanent work to another locality. The plaintiff did not explain for which period of the term established by the employment contract he was sent on a business trip. In violation of the requirements of the civil procedure legislation, the plaintiff did not provide evidence that his place of permanent work was in Almaty at the employer's location, that he constantly came to Almaty to the defendant's office, that he had his workplace here, and only for a certain period of time he left for the city of Astana by order of the defendant to perform the work. No travel tickets, no fiscal receipts, no bills, no hotel receipts for accommodation, nothing was provided by the plaintiff to substantiate his claim.
Labor disputes | Recovery of travel expenses | Collection of representation and court expenses
The arguments that all the documents were submitted to the defendant's accounting department, which refuses to provide evidence about sending the plaintiff on a business trip, are untenable. Thus, the plaintiff had a sufficient opportunity to obtain information from Kazakhstan Temir Zholy JSC about his passage by the Talgo train through Almaty, however, no evidence of this was presented at the court hearing. The court has not received any requests for such information. In addition, an employee's stay on a business trip involves staying in hotels and other temporary accommodation facilities. It was also within the plaintiff's authority to request duplicate receipts from places of temporary residence and submit documents about it, however, this was not done. According to paragraph 10 of the Rules of mandatory periodic certification of production facilities for working conditions, approved by the Order of the Minister of Health and Social Development of the Republic of Kazakhstan No. 1057 dated December 28, 2015, a workplace is a place of permanent or temporary residence of an employee while performing his work duties in the course of his work. Based on the above circumstances, as well as the lack of evidence, the plaintiff's arrival in Almaty during this period confirms that the plaintiff's workplace was located in Astana. The conclusion that there are no grounds for claiming that the plaintiff is on a business trip is also confirmed by the fact that "....." LLP has an official representative office in Astana, as indicated by a certificate of its registration. No one denies that during the entire term of the contract, ASH.-U. worked and lived in the city of Astana. According to paragraph 3 of Article 101 of the Tax Code (hereinafter referred to as the Tax Code), deductible compensation for business trips includes the daily allowance paid to an employee during a business trip, in the amount established by the decision of the taxpayer.
The time spent on a business trip is determined on the basis of: an order or a written order from the employer to send an employee on a business trip. Regarding the plaintiff, there are no documents on the submission of tax reports by the employer, taking into account travel expenses. The plaintiff's claims for payment of a daily allowance for 42 days in the amount of 6 MCI are not justified, since, according to paragraph 1 of Article 101 of the Tax Code, deductible compensation for business trips includes the actual expenses incurred for travel to and from the place of business trip, including payment of booking expenses, based on documents confirming travel expenses and for booking (including an electronic ticket if there is a document confirming the fact of payment of its cost), however, any documents, There are no documents confirming the expenses actually incurred by the plaintiff for travel to and from the place of business trip. On the contrary, the materials on sending another employee of the defendant, Sh.K.B., on a business trip for the same type of work as the plaintiff, indicate that LLP ....... properly processed the business trip of its employees, and therefore the lack of documents for the plaintiff refutes the arguments of the claim. According to subparagraph 4-7 of Article 8 of the Civil Code, citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation, the moral principles of society, and entrepreneurs, as well as the rules of business ethics. This obligation cannot be excluded or limited by the contract. Good faith, reasonableness and fairness of the actions of participants in civil law relations are assumed. Actions of citizens and legal entities aimed at harming another person, abuse of the right in other forms, as well as the exercise of the right in contradiction with its purpose are not allowed. No one has the right to take advantage of their unscrupulous behavior.
In case of non–compliance with the requirements provided for in paragraphs 3 to 6 of this article, the court may refuse to protect the person's right. In the absence of evidence to the contrary, by virtue of the aforementioned article of the Civil Code, it follows that the employer properly registered his employees. In this regard, the obligation to prove the opposite lies with the plaintiff. By virtue of the requirements of part 2 of Article 224 of the CPC, the court bases its decision only on the evidence presented by the parties and examined at the court session. In addition, the employer's timesheet for that period indicated that the plaintiff was at his workplace, as evidenced by the "twilight", while the column for employee Sh.K.B. reflected "K", which means that the employee was on a business trip for the same period as the plaintiff. In addition, neither the plaintiff nor his representative explained to the court what kind of work A. Zh.S. performed for the defendant in Almaty, if he believes that his main place of work for the defendant is located in this city. Indeed, the arguments regarding the employee's residence in this case have no legal significance for the resolution of this labor dispute. At the same time, the plaintiff has not provided any evidence to substantiate his claims. Regarding the Special Purpose Audit Report dated September 25, 2017 and the Report on the Discovered Facts dated September 25, 2017, the court does not take them into account, since this conclusion and the report are controversial, drawn up unilaterally, and therefore are not recognized as reliable evidence. In accordance with the requirements of Article 68 of the CPC, each piece of evidence is subject to assessment in terms of relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve a civil case.
Labor disputes | Recovery of travel expenses | Collection of representation and court expenses
The judge evaluates the evidence according to his inner conviction. In connection with the above, the court concludes that the claim cannot be satisfied due to the lack of sufficient evidence. Guided by articles 222-226 of the Code of Civil Procedure, the court DECIDED: In satisfying the claims of the AAJC to LLP "A........." to refuse to collect travel and court expenses in full.
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