Limitation periods for applying to the court for reinstatement of dismissed employees

According to the norms of Article 160 of the Labor Code, the following deadlines are set for applying to the conciliation commission or the court for the consideration of individual labor disputes:

1) for disputes concerning reinstatement at work – one month from the date of delivery of a copy of the employer's act on termination of the employment contract to the conciliation commission, and for applying to the court – two months from the date of delivery of a copy of the decision of the conciliation commission when applying for unresolved disputes or in case of non-fulfillment of its decision by the party to the employment contract;

2) in other labor disputes – one year from the day when the employee or employer learned or should have learned about the violation of his right.

The term of the application for consideration of individual labor disputes is suspended during the period of validity of the mediation agreement on the labor dispute under consideration, as well as in the absence of a conciliation commission before its establishment.

The limitation period may be applied only upon the application of the party to the dispute. In the absence of such a statement before the decision is made, the dispute is resolved on its merits, and its omission by the court is not discussed. At the same time, paragraph 5 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003 No. 9 "On certain issues of the application of legislation by courts in resolving labor disputes" (with subsequent amendments) reflects that if it is established that the deadlines provided for in Article 172 of the Labor Code were missed for a valid reason, then in the resolution The court indicates this in part of the decision and resolves the dispute on the merits.

If the court finds that the plaintiff's labor rights have been violated, but they have missed the deadline provided for by the Labor Code without valid reasons, the court in the reasoning part of the decision indicates a violation of these rights, and in connection with the missed deadline, denies the claim.

It is important to determine the valid reasons for missing the limitation period. The Labor Code has not defined the concept and list of valid reasons for missing the deadline for applying to the court regarding labor disputes. In this regard, it seems reasonable to take into account the circumstances related to the plaintiff's personality (serious illness, helplessness, illiteracy, etc.), the time period during which these circumstances took place, provided for in Article 185 of the Civil Code, and other valid reasons.

In cases where, prior to going to court, plaintiffs in labor disputes apply to the prosecutor's office or authorized labor protection authorities, after which they file a lawsuit with the court, while these authorities have taken legal measures to resolve the labor conflict within their jurisdiction, it seems correct to recognize the reason for missing the deadline in such cases as valid.

So, S.N.S. appealed to the court with a claim for recognition as illegal and cancellation of the dismissal order, reinstatement, without making demands for the recovery of wages for the time of forced absenteeism.

The plaintiff motivated his claims by the fact that he worked as a district police inspector of the administrative police department of the Department of Internal Affairs of Pavlodar. By Order of the Department of Internal Affairs of Pavlodar region No. 163 dated May 15, 2015, he was dismissed from the internal affairs bodies under clause 12, clause 1, Article 80 of the Law of the Republic of Kazakhstan "On Law Enforcement Service". The reason for the dismissal was the fact that police officers were called to the Lace restaurant on March 15, 2015, where an unknown person, out of hooligan motives, inflicted bodily injuries on the bartender of this restaurant, I.P.A., who was subsequently taken to the hospital. A pre-trial investigation has been initiated into this fact. By the investigator's decision of May 01, 2016, the case was terminated under paragraph 2 of Part 1 of Article 35 of the CPC of the Republic of Kazakhstan due to the absence of elements of a criminal offense in the actions, S. N.S. became aware of this on September 29, 2016. He believes that the reference in the order to paragraph 12, paragraph 1, Article 80 of the Law of the Republic of Kazakhstan "On Law Enforcement Service" is not sound, due to the illegal criminal prosecution. Therefore, he asks to recognize the order of the Department of Internal Affairs of the region No. 163 dated May 15, 2015 as illegal and to cancel it, to reinstate him as a district police inspector of the police inspectors department of the Administrative police Department of the Department of Internal Affairs of Pavlodar.

By the decision of the Pavlodar City Court of November 1, 2016, the claim of S.N.S. was denied.

The court also motivated its decision by the fact that the plaintiff missed the three-month limitation period provided for in Article 172 of the Labor Code (2007) for applying to the bodies for the consideration of individual labor disputes, the deadline for reinstatement disputes was set, which was calculated in this case from the date of delivery of a copy of the employer's act on termination of the employment contract.

The judicial Board of the regional Court found that, at the stage of preparing the case for trial in the first instance, on October 25, 2016, the defendant's representative filed an application for the application of the statute of limitations. The petition for the restoration of the specified period by the plaintiff's side was not filed at the time of consideration in the preliminary court session, which is a procedural omission by the party. The plaintiff's reference to the decision to terminate the pre-trial inspection dated May 1, 2016, as the basis for reinstating him at work is not valid, since according to the order of S.N.S. appealed by him. He was dismissed from the internal affairs bodies under clause 12, clause 1, Article 80 of the Law of the Republic of Kazakhstan "On Law Enforcement Service" for gross violation of official discipline based on the conclusion of the internal investigation dated April 13, 2015 and the protocol decision of the Disciplinary Commission of the Department of Internal Affairs of the region dated May 13, 2015, and not in connection with bringing him to criminal responsibility.

Therefore, by the decision of January 19, 2017, this decision of the court of first instance was left unchanged, and the plaintiff's appeal was dismissed.

 

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