Labor disputes - the imposition of penalties is the commission of a disciplinary offense by an employee

B. filed a lawsuit with the State Institution "Committee on Legal Statistics and Special Accounts of the General Prosecutor's Office of the Republic of Kazakhstan" (hereinafter referred to as the Committee) to cancel the order to impose disciplinary action and reinstatement at work. The claim was dismissed by the decision of the Saryarkinsky District Court of Astana on June 20, 2019. By the decision of the Judicial Board for civil cases of the Nur-Sultan City Court dated September 17, 2019, the court's decision remained unchanged. The Judicial Board for Civil Cases of the Supreme Court has left judicial acts of local courts unchanged on the following grounds. It follows from the materials of the civil case that since October 19, 2018, the plaintiff held the position of senior prosecutor of the Analytical Work Department of the Information and Analytical Work Department of the Committee. By Order of the Chairman of the Committee dated February 21, 2019 for gross violation of official discipline, for violations of the requirements of the Law of the Republic of Kazakhstan "On Law Enforcement Service" (hereinafter referred to as the Law), the Code of Ethics of Civil Servants of the Republic of Kazakhstan (hereinafter referred to as the Code of Ethics) and the Code of Honor of Employees of Bodies and Institutions of the Prosecutor's Office of the Republic of Kazakhstan (hereinafter referred to as the Code of Honor) on on the basis of sub-paragraphs 2), 7) of paragraph 2 of Article 56, subparagraph 12) of paragraph 1, paragraph 3 of Article 80, paragraphs 1, 2 of Article 81 of the Law, disciplinary punishment was imposed on B. in the form of dismissal. The materials of the internal audit and the minutes of the meeting of the Committee's disciplinary commission dated February 18, 2019 served as the basis for the dismissal order.

Labor disputes - the imposition of penalties is the commission of a disciplinary offense by an employee

In rejecting the claim, the courts proceeded from the fact that the actions committed by the plaintiff constitute a gross violation of official discipline, the grounds for dismissal are consistent with the requirement of subparagraph 12) of paragraph 1 of Article 80 of the Law, and the decision to dismiss is the right of the head of the relevant law enforcement agency. The Judicial Board of the Supreme Court considers these conclusions of the local courts to be legitimate and justified on the following grounds. In accordance with paragraph 1 of Article 54 of the Law, official discipline in the law enforcement service is the mandatory observance by an employee of the norms and rules established by the legislation of the Republic of Kazakhstan, acts of heads of law enforcement agencies and authorized managers. By virtue of the provisions of subparagraph 12) of paragraph 1 of article 80 of the Law, employees are dismissed for gross violation of official discipline. The materials of the civil case established that the Committee conducted an internal investigation against the plaintiff, which resulted in the facts of editing information on criminal cases in information systems from October 23, 2018 to January 31, 2019. The authority to monitor the reliability of information in the Unified Register of Pre–Trial Investigations (hereinafter referred to as the ERDR), as well as to edit or delete information in the ERDR, is exclusively vested in the management of the Nur-Sultan City Committee and other territorial administrations. And the staff of the Analytical Work Department of the Information and Analytical Work Department of the Committee do not have such powers. Their duties include solving exclusively technical tasks, such as eliminating communication interruptions, maintaining the operability of server equipment, etc. Meanwhile, according to the results of an internal investigation, it was reliably established that B. was indeed editing information from the ERDR, whose functional duties did not include making adjustments or deleting information from the ERDR. Thus, the plaintiff, in violation of paragraph 58 of the Rules for Receiving and Registering applications, reports or Reports on Criminal Offenses, as well as maintaining the Unified Register of Pre-Trial Investigations (ERDR), approved by the order of the Prosecutor General of the Republic of Kazakhstan dated September 19, 2014, without appropriate petitions from the initiators with the attachment of supporting documents for the period from October 23, 2018 to 31 In January 2019, 493 adjustments were made, 63 of them did not correspond to the materials of criminal cases, namely information on the allocation of cases against individuals. At the same time, during the consideration of the case, the facts of B.'s admission of violations of the stated norms of legislation were fully confirmed and were not disputed by the plaintiff. Consequently, the courts reasonably concluded that the gross violations of official discipline on the part of the plaintiff led to distortions of the state statistical reports for 2018, whereas the purpose of the Committee is primarily to provide reliable statistical information, as provided for in subparagraphs 1), 2) of paragraph 1 of Article 6 of the Law "On State Legal Statistics and special accounts". In addition, it was established in the case and is not disputed by the plaintiff that the revealed facts were distorted into official legal statistics. He made contributions at the request of individuals he does not wish to disclose, mainly in favor of employees of the internal affairs bodies, unreasonably improving their performance. The plaintiff made illegal adjustments both on working days and on weekends through the computers of his colleagues.

Labor disputes - the imposition of penalties is the commission of a disciplinary offense by an employee

Thus, in addition to violations of the requirements of the Law, the plaintiff also violated the requirements of the Code of Ethics and the Code of Honor, according to which employees, in carrying out their official activities, must perform their functions honestly, fairly and impartially, achieve the effectiveness of prosecutorial supervision, and strengthen law and order. According to the rules of paragraphs 1, 2 of Article 57 of the Law, the basis for imposing a penalty is the commission of a disciplinary offense by an employee. When imposing a disciplinary penalty and determining its type, the presence of the employee's guilt, the severity and circumstances of the committed disciplinary offense, the employee's personality and attitude to the service, the occurrence of negative consequences and damage to the image of the law enforcement agency are taken into account. Considering that as a result of the edits made by the plaintiff, the Committee, as an authorized body, did not ensure the reliability of legal statistics, which led to undermining the image of the prosecutor's office and sending unreliable statistical information to the relevant authorities, the courts legitimately concluded that the disciplinary penalty imposed was proportionate to the committed disciplinary offense. In such circumstances, it is correct for the courts to conclude that the plaintiff's claims are unfounded. The arguments of the petition that the violation was not gross, since the plaintiff did not have an outstanding disciplinary penalty at the time of his dismissal and did not commit an offense that entailed negative consequences, for which dismissal is provided in accordance with labor legislation or legislation on public service, are untenable and refuted by the established circumstances of the case. In the case under consideration, the grossness of the violations committed by the plaintiff is expressed in the systematic and repeated commission of illegal adjustments by the plaintiff, which led to the imposition of disciplinary action in the form of dismissal. 

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