Monetary compensation for moral damage in case of reinstatement of dismissed employees
When applying to the court for the resolution of labor disputes, often along with the demand for reinstatement at work, recovery of wage arrears, plaintiffs claim compensation for moral damage.
For example, D.S.T. sued the Pavlodar Regional Vocational Training Center NGO "..." (hereinafter referred to as the Institution) for the recovery of penalties for late payment of wages and compensation for moral damage, arguing that he was in an employment relationship with the defendant and worked as a teacher with hourly wages. The employer paid wages incompletely, after which the employment relationship was terminated at the initiative of the plaintiff. The defendant paid the remaining wage arrears only after the plaintiff applied to the Labor Department.
By the decision of the Pavlodar City Court of July 13, 2016, a penalty was collected from the Institution in favor of Duabekov S.T. for late payment of wages of 1,058 tenge, in terms of moral damage was refused.
By the decision of the appeals board, the court's decision was changed regarding the refusal to recover moral damage and monetary compensation for moral damage of 50,000 tenge was collected.
The Court of Appeal, when considering the case, proceeded from the content of Article 24 of the Constitution of the Republic of Kazakhstan - the protection of the constitutional right of citizens to timely remuneration is one of the priorities of state policy.
In accordance with paragraph 1 of Article 951 of the Civil Code, moral harm is a violation, diminution or deprivation of personal non–property benefits and rights of individuals, including moral or physical suffering (humiliation, irritation, depression, anger, shame, despair, etc.) experienced (endured, experienced) by the victim as a result of the crime committed against him. offenses.
Non-payment of wages by the employer in full and within the time limits established by labor legislation is an administrative offense provided for in Article 87 of the Administrative Code, for which the defendant was subjected to administrative liability in the amount of 30 MCI.
Moreover, article 1 of the Constitution of the Republic of Kazakhstan names a person, his life, rights and freedoms as the highest values, and article 24 enshrines the right to remuneration for work without discrimination. Therefore, in essence, non-payment of wages entails a diminution of a person's dignity and life, his health, physical and mental state.
In paragraph 3 of the normative resolution of the Supreme Court of November 27, 2015 No. 7 "On the application by courts of legislation on compensation for moral damage", it is clarified that personal non-property benefits and rights, the violation, deprivation or diminution of which may result in moral harm to the victim, should be understood as benefits or rights granted by law belonging to a citizen from birth, which are inextricably linked to his personality. The benefits belonging to a person from birth include life, health, honor, dignity, freedom, and inviolability of the individual, and the rights of a citizen granted by law include the right to inviolability of home or property; to personal and family secrets, the secrecy of telephone, telegraphic messages and correspondence; to use a name; to an image; authorship and other personal non-property rights provided for by the legislation on copyright and related rights; freedom of movement and choice of place of residence; the right to receive reliable information, as well as other rights provided for by law.
The Labor Code does not regulate the issues of compensation for moral damage caused to an employee by unlawful actions or inaction of the employer. However, in this case, the possibility of applying civil legislation is allowed, as is directly indicated in article 1 of the Civil Code.
Thus, according to paragraph 3 of Article 1 of the Civil Code, civil legislation applies to family, labor relations and relations on the use of natural resources and environmental protection that meet the criteria specified in paragraph 1 of this Article in cases where these relations are not regulated by family, labor legislation, legislation on the use of natural resources and environmental protection, respectively. Wednesday.
Thus, the current legislation does not exclude the possibility of compensation for moral damage using the Civil Code and labor disputes. At the same time, the courts, along with the legal assessment of the claimed claims, should carefully examine issues related to the actual violation of personal non-property rights, their presence or absence. This practice is followed by the majority of judges. Cases of refusal to search for moral damage are rare
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