Labor disputes Termination of an employment contract improper performance of labor duties          

  A. filed a lawsuit with the People's Savings Bank of Kazakhstan JSC (hereinafter referred to as NSBK / Bank) for the recognition of illegal and cancellation of disciplinary orders: dated December 3, 2019, No. 10–b for severe reprimand; dated March 4, 2020, No. 77-ok for termination of the employment contract. He also asked to be reinstated as head of the Administration of the Aryssk Department No. 390400 of the NSBK, to collect from the defendant in his favor wages for the time of forced absenteeism and compensation for moral damage in the amount of 1,000,000 tenge. The claim was dismissed by the decision of the Turkestan City Court of July 2, 2020. By the decision of the judicial board for Civil Cases of the Turkestan Regional Court dated September 16, 2020, the decision of the court of first instance was changed, namely: regarding the refusal to satisfy claims for recognition as illegal and cancellation of orders, reinstatement at work, and recovery of wages for forced absenteeism, it was canceled with a new decision on the satisfaction of the claim.: – the Bank's orders No. 10-b dated December 3, 2019 and No. 77-ok dated March 4, 2020 were declared illegal and cancelled; – A. was reinstated as head of the Administration of the Aryssk Department No. 390400 of the NSBK; – wages for forced absenteeism in the amount of 1,410,000 tenge were recovered from the defendant in favor of the plaintiff; state tax in the amount of 14,100 tenge was transferred to the state income. The rest of the Turkestan City Court's decision remains unchanged.

Labor disputes Termination of an employment contract improper performance of labor duties

The Judicial Board for Civil Cases of the Supreme Court overturned the decision of the appellate instance, upholding the decision of the court of first instance by virtue of the following. According to Article 4 of the NSBK Charter, by decision of the Board of Directors (hereinafter referred to as the Board of Directors), NSBK has the right to establish branches in the territory of the Republic of Kazakhstan that are not legal entities, act on behalf of the Bank on the basis of their regulations approved by the Board of Directors, and their managers act on the basis of powers of attorney issued to them by the Bank. Also, paragraph 4 of Article 29 of the Law "On Banks and Banking Activities in the Republic of Kazakhstan" (hereinafter referred to as the Law on Banks) provides for the right of a bank branch to have premises located at several addresses within the same region. As can be seen from the case file, the Turkestan (formerly South Kazakhstan) regional branch of the NSBK (hereinafter referred to as the Branch) operates in the Turkestan region, which has established a number of divisions (premises) in the region, including the Administration of the Makhtaaral Administration No. 392100, the Administration of the Aryssk Administration No. 390400. On the basis of the employment contract dated October 22, 2009, No. TD-1431, the employment contract dated January 5, 2016, No. TD-1431 and many additional agreements to them, A., who was hired at NSBK in 2009, alternately held the positions of manager, senior manager, head of the Credit Service department of the Aryssk Department No. 290400, head of branch No. 299913 in Shymkent, Head of the department "Administration of the Kentau Department No. 290600", Head of the department "Administration of the Makhtaaral Department No. 292100" of the Bank. Also, on the basis of additional agreements to the employment contract No. TD-1431 dated January 5, 2016, A. from July 31, 2017, he held the position of head of the department "Administration of the Makhtaaral Department No. 292100", from June 1, 2019 - head of the department "Administration of the Makhtaaral Department No. 392100", and from September 9, 2019 - head of the department "Administration of the Aryssk department No. 390400" NSBK. According to the NSBK Charter, paragraph 2 of section 1 of the standard job description (hereinafter referred to as the job description), the appointment and dismissal of the head of the department ("Administration of the Mahtaaral Department", "Administration of the Arys Department") is carried out by the head of the Branch on behalf of and by proxy of the Bank.

By Order No. 10-v dated December 3, 2019, A. was severely reprimanded for improper performance of official duties and non-compliance with the requirements of the Bank's internal regulatory documents while working as the head of the Administration of the Makhtaaral Department No. 392100. The disciplinary penalty in the form of a severe reprimand was based on the results of a planned comprehensive audit of the financial and economic activities of the Mahtaaral Management Administration No. 392100 for the period up to September 30, 2019 and materials from a surprise audit of the same Management by the Bank's financial supervisors. By NSBK Order No. 77-ok dated March 4, 2020, the employment contract with A. terminated under subparagraph 16) of paragraph 1 of Article 52 of the Labor Code of the Republic of Kazakhstan (hereinafter referred to as the Labor Code) for repeated improper performance of labor duties without valid reasons in the presence of a previously imposed disciplinary penalty. The basis for issuing the order to terminate the employment contract was the facts of A.'s violation of official duties, revealed by the Bank's financial supervisors during an audit conducted from February 4 to February 7, 2020 at the office of the Aryssk Administration No. 390400 NSBK.

Labor disputes Termination of an employment contract improper performance of labor duties

The court of first instance motivated the refusal to satisfy the claim by concluding that the disputed orders were lawful, pointing to the established facts of A.'s violations. during his work as head of the departments "Administration of the Makhtaaral Department No. 392100", "Administration of the Aryssk Department No. 390400", violations of subparagraph 13) of paragraph 12 of the Internal Labor Regulations of the Bank dated November 5, 2012 No. 874, subparagraph 7) of paragraph 20 of the Rules of Corporate Ethics of the Bank dated June 28, 2012 No. 442, subparagraph 1) of paragraph 9, subparagraph 2) of paragraph 11, paragraph 71 of the job description, in particular: violation of the requirements of the rules on cash discipline; authorizing withdrawal orders, transferring funds from bank accounts, and credit cards of clients without their knowledge, including by transferring the client's funds to the account of the manager's spouse; negligent attitude to the performance of their functional duties, which led to the illegal disposal of clients' funds, and the illegal receipt of monetary rewards by employees subordinate to him. According to part 1 of Article 413 of the CPC, when considering a case on appeal, the court of appeal verifies the legality and validity of the decision of the court of first instance in full. The Judicial Board for Civil Cases of the Turkestan Regional Court, based on the results of the appeal proceedings in the present case, did not question the validity of the NSBK's allegations and the conclusions of the court of first instance on the facts of violations of the official instructions, other internal and regulatory documents of the NSBK, committed by A. under the above circumstances, while working as the head of the departments "Administration of the Mahtaaral Department No. 392100", "Administration of the Aryssk Department No. 390400", identified during the planned comprehensive audit of financial and economic activities and the audit by the financial supervisors of the Bank. The plaintiff's side does not dispute the conclusions of the Turkestan Regional Court in the above part, as well as the decision as a whole, in the cassation procedure. At the same time, the court of appeal, pointing out that since September 9, 2019, the plaintiff had already held the position of head of the Administration of the Aryssk Department No. 390400, without referring to any substantive law norms, concluded that the actions of the Bank were unlawful, which issued Order No. 10-b on December 3, 2019, declaring A. severely reprimanded for violations., admitted at their former place of work in the "Administration of the Makhtaaral department No. 392100". Accordingly, the recognition of the Bank's order No. 10-b of December 3, 2019 as illegal led to the cancellation by the regional court of order No. 77-ok of March 4, 2020 (on A.'s dismissal under subparagraph 16) of paragraph 1 of Article 52 of the Labor Code) in connection with the conclusion that there was no sign of "repeated" improper execution without valid reasons. responsibilities. The judicial board of the Supreme Court considers such conclusions of the court of appeal to be based on the incorrect application of substantive law and made without due consideration of the relevant circumstances correctly established in the case by the court of first instance.

 The conclusion of the Turkestan Regional Court on the illegality of the issuance of order No. 10-b dated December 3, 2019 was made without taking into account the above-mentioned provisions of the Law on Banks, the NSBK Charter, and the Regulations on its branches, according to which the "Administration of the Makhtaaral Department No. 392100" and the "Administration of the Aryssk Department No. 390400" are separate premises of the Bank's Branch located within the same region, which are not subject to separate registration with an authorized registration authority. By virtue of sub–paragraphs 36), 39) of paragraph 1 of Article 1 of the Labor Code, the employer is a legal entity with which the employee is in an employment relationship. A written agreement is concluded between the employee and the employer - an employment contract, according to which the employee undertakes to personally perform a certain job (labor function). As stated earlier, on January 5, 2016, between the Bank and A. An employment contract No. TD-1431 was concluded, which was subsequently repeatedly amended and supplemented by agreement of the parties related to the transfer of an employee from one to another structural unit of the same Branch of the Bank. Such changes through the conclusion of additional agreements did not lead to the termination of the employment contract, a change in responsibilities. According to the requirements of the Bank's internal documents and compliance with cash discipline, in relations with it under the employment contract and additional agreements, in all cases, the NBK acted as the employer, but these circumstances were also ignored and duly assessed by the court of appeal. Taking into account the above circumstances, the termination with A. an employment contract initiated by the employer on the basis of subparagraph 16) of paragraph 1 of Article 52 of the Labor Code on the grounds of repeated improper performance of labor duties by a person who has lawfully imposed a disciplinary penalty is lawful. Having correctly identified and established the range of circumstances relevant to the case, having given them an appropriate legal assessment with the correct application of the above provisions of regulatory legal acts and internal documents of the NSBK, the court of first instance lawfully rejected A.'s claims. on recognition of the contested acts of the employer as illegal, reinstatement at work and recovery of compensation for moral damage. The cancellation of the decision of the Turkestan City Court of July 2, 2020 is related to the conclusions of the court of appeal, which do not correspond to the factual circumstances established in the case and relevant to the erroneous application of the norms of the substantive law.

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