Limitation periods for reinstatement of dismissed employees with payment of wages

According to 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 normative resolution of the Supreme Court of December 19, 2003 No. 9 "On certain issues of the application of legislation by courts in the resolution of labor disputes" (with subsequent amendments) clarified 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 operative part of the decision the court indicates this 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 validity of the 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 competence, it seems correct to recognize the reason for missing the deadline in such cases as valid.

           For example, the Zharkainsky District Court of the Akmola region, when considering the claim of S.R.B. to the State Institution "Pyatigorsk Secondary School" of the Department of Education of the Zharkainsky district for declaring illegal the dismissal order No. 8 dated February 27, 2016, reinstatement at work and payment of wages for forced absenteeism, it was established that by order No. 7/1 dated February 25, 2016 primary school teacher S.R.B. was suspended from work, and by Order No. 8 of 02/27/2016, she was for improper performance of her official duties on the basis of paragraph 16, paragraph 1, Article 52 of the Labor Code. The plaintiff's application was reviewed by the school's conciliation commission on July 28, 2016 and denied. At the same time, the commission considered the reason for the plaintiff's appeal to the conciliation commission to be disrespectful, due to missing the deadline for appeal. S.R.B., disagreeing with this decision of the conciliation commission, on 08.08.2016 appealed to the Zharkainsky District Court, exercising the constitutional right to judicial protection of their rights and freedoms, within two months from the date of receipt of a copy of the decision of the conciliation commission. The court concluded that by contacting the conciliation commission, the plaintiff had complied with the pre-trial dispute settlement procedure established by law for this category of cases, and the deadline for filing a claim with the court begins on the date of receipt of a copy of the decision of the conciliation commission. Therefore, the limitation period for filing this claim with the court has not been missed by the plaintiff.

           The following example shows the court's application of the statute of limitations at the request of the defendant – employer, which is why Zh.A.D.'s claim to the limited liability company (hereinafter – LLP) "Kazakhmys Corporation" for reinstatement and recovery of wages for the time of forced absenteeism was refused (Zhezkazgan City Court of the Karaganda region). The plaintiff justified the claim by the fact that since January 2005 she had been working in the enrichment and production complex of the branch of Kazakhmys Corporation LLP – Zhezkazgantsvetmet SOFTWARE as a dryer. By Order No. 1375 of June 27, 2014, her employment contract was terminated, based on a statement dated 06/16/2014, which she did not write or sign.

           The court found that by Order No. 1375k of June 27, 2014, the employment contract with Zh.A.D. was terminated by agreement of the parties (on disability) from June 16, 2014 in accordance with paragraph 17, paragraph 1, Article 54 of the Labor Code (2007), the basis: a personal statement, a certificate of disability of the 2nd group. In the period from February 25, 2014 to June 15, 2014, the plaintiff was absent from work due to temporary disability.

               In the workbook submitted for review by the plaintiff, there is an entry on the termination of the employment contract by agreement of the parties in accordance with clause 17, clause 1, Article 54 of the Labor Code of the Republic of Kazakhstan (in connection with disability of the second group)

At the hearing, the plaintiff did not deny the authenticity of her signature on the personal sheet of the T-2 Form, on familiarization with the dismissal order dated June 27, 2014 No. 1375 K., handing over the workbook. She also did not deny that she personally took the workbook.

The analysis of the examined evidence gives grounds to conclude that all the actions of the plaintiff correspond to her will. Zh.A.D. got acquainted with the dismissal order dated June 27, 2014, signed it, and personally took away her work record.

At the same time, the court assessed the specified order, according to which the employer terminates the employment contract by agreement of the parties, and at the same time indicates the reason for dismissal, paragraph 17, paragraph 1, Article 54 of the Labor Code. According to clause 17, clause 1 of art. According to Article 54 of the Labor Code, an employment contract with an employee may be terminated at the initiative of the employer if the employee fails to appear for more than two consecutive months due to temporary disability, except in cases where the employee is on maternity leave, and if the disease is included in the list of diseases for which a longer period of disability is established, approved by the Government of the Republic of Tajikistan. Kazakhstan… The basis is a personal statement, a certificate of disability, which is already incorrect. The court concluded that the inaccuracy of this entry does not affect the essence of the dispute, since the termination of the employment contract was made at the will of the employee. For the termination of the employment contract under the specified article of the labor legislation, the presence of this statement did not matter.

In addition, the plaintiff missed the limitation period, since by virtue of Articles 170,172 of the Labor Code (2007), the parties to an employment contract may, at their option, apply for a resolution of a labor dispute directly to the court, within three months from the date of delivery of a copy of the employer's act of termination of the employment contract. The plaintiff received the dismissal order on June 27, 2014. The legality of the dismissal was not disputed by the plaintiff within the time limit prescribed by law.

 

 

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