On recognition as illegal and cancellation of the conclusion on a fatal group accident
No. 6001-24-00-6ap/1395 dated February 27, 2025
Plaintiff: S.E.
Respondent: Russian State Institution "Committee of Labor and Social Protection of the Ministry of Labor and Social Protection of the Population of the Republic of Kazakhstan" (hereinafter referred to as the Committee)
The subject of the dispute: on the recognition of illegal and cancellation of the conclusion on a fatal group accident
Review of the plaintiff's cassation appeal
PLOT:
According to the orders of the Partnership's branch dated August 21, 2023 and August 22, 2023, K. was sent from the station to escort the locomotives and deliver them. locomotive engineer T.A., assistant locomotive engineer A.S., electric locomotive engineer Y.R., assistant locomotive engineer E.S. arrived at the station for a period of 5 days from August 22 to August 26, 2023.
On August 23, 2023, at 6:10 p.m., T.A., A.S., J.R., E.S., accompanied by locomotives in a "cold" state, set off from station K. to station T. as part of the train locomotive TE33AS No. 0115.
On August 23, 2023, at 11:10 p.m., this team arrived at Station T. to wait for the locomotive to be sent to station P.
On August 24, 2023, at about 4 p.m., a traffic accident occurred on the 495 kilometer of the A-22 highway (hereinafter referred to as the accident).
As a result of the accident, the driver of the T-brand car, E.M., as well as his passengers E.S. and A.S. died from their injuries at the scene of the accident.
On August 28, 2023, by order of the head of the State Institution "Akimat Labor Inspection Department" (hereinafter referred to as the Department), a special investigation commission (hereinafter referred to as the Commission) was established consisting of the chairman of the commission, E.T., the Chief State Labor Inspector of the region, and members of the commission: A.G., the State labor inspector; A.A., the employer's representative, Deputy chief branches N.K. - a representative from the labor collective, chairman of the trade union committee of the Partnership branch.
On September 26, 2023, the Commission drew up an act of special investigation into a fatal group accident (hereinafter referred to as the act of special investigation), as a result of which the Commission concluded that a fatal accident involving employees of E.S. and A.S. could be classified as an industrial accident with a degree of employer's fault of 50%., employee - 50%.
The specified act of special investigation by the Committee was canceled based on the results of consideration of the complaint by S.E. dated October 6, 2023, and the accident was declared unrelated to production.
The decision taken by the Committee to recognize this accident as unrelated to production was formalized by an opinion dated October 30, 2023.
Judicial acts:
1st instance: the claims are satisfied.
The conclusion of the State Institution "Committee of Labor and Social Protection of the Ministry of Labor and Social Protection of the Population of the Republic of Kazakhstan" dated October 30, 2023 on a fatal group accident that occurred on August 24 was declared illegal and canceled.
2023 with the employees of the Partnership with E.S. and A.S.
Appeal: the decision of the court of first instance was overturned, and a new decision was issued to dismiss the claim.
Cassation: the decision of the appeal was overturned, with the decision of the court of first instance remaining in force in this case.
Conclusions: the court of first instance, satisfying the claim for recognition as illegal and cancellation of the specified conclusion, concluded that the conclusions of the Commission set out in the act of special investigation on 50% of the degree of fault of the employer and 50% of the fault of the employee are justified and correspond to the factual data established during the investigation of the accident, since there was a violation of labor and industrial discipline both on the part of the employer and the employees represented by the deceased.
Disagreeing with these conclusions, the court of appeal overturned the court's decision and dismissed the claim, believing that the conclusions of the court of first instance were unfounded because they did not correspond to the actual circumstances of the case.
Thus, A.S. and E.S. were indeed on a business trip, but they committed actions unrelated to the performance of their functional duties and unrelated to the employer's interest, since they did not notify the management, did not receive permission, and voluntarily left their workplace and took a taxi outside the territory of the T. station, where the unaccompanied non-active locomotives before their further movement to their destination at station P.
The death of employees occurred tens of kilometers from their place of work and it happened not as a result of work, but because of an accident that caused the death (including the owner of the source of increased danger) of several of its participants, who died from wounds sustained in a collision with a front loader.
The Judicial Board concluded that the above conclusions of the court of appeal could not be recognized as legitimate and justified on the following grounds.
Initially, a specially created Commission concluded in its report that the accident that killed two employees, including the plaintiff's husband, was related to production and the degree of guilt of the employees and the employer was determined by 50%.
As the representative of the defendant testified at the hearing on the plaintiff's complaint and due to the presence of a special opinion from the employer's representative, the act of special investigation was reviewed and canceled. In accordance with the general rules for reviewing complaints provided for in article 98 of the CPC, the body reviewing the complaint is obliged to take measures for a comprehensive, complete and objective investigation of the factual circumstances relevant to the proper consideration of the complaint.
Based on the fourth part of this article, the body reviewing the complaint is not connected with the arguments of the administrative body, the official whose administrative act, administrative action (inaction) is being appealed, the participant in the administrative procedure, as well as with the requirements set out in the complaint, and verifies the administrative case in full.
At the same time, according to the sixth part of Article 98 of the CPC, it is not allowed to file a complaint to the detriment of the applicant.
However, in violation of the above-mentioned provision of the law, the act of a special investigation by the Committee based on the results of consideration of the plaintiff's complaint from
On October 6, 2023, the accident was cancelled and declared unrelated to production.
Thus, based on the results of consideration of the plaintiff's complaint, the Committee made a decision that worsens her situation and violates her rights, which is not allowed by law.
The Judicial Board considered that the conclusions of the court of first instance on the need to recognize the Committee's conclusion as illegal and annul it were justified.
Under the established circumstances of the case, the judicial board agrees with the Commission's conclusions that a violation of labor and industrial discipline took place, both on the part of the employer as a result of unsatisfactory organization of work, and the employees represented by the deceased.
Taking this into account, the judicial board considered that the conclusions of the Commission on 50% of the employer's fault and 50% of the employee's fault set out in the act of the special investigation were justified and consistent with the factual data established during the investigation of the accident.
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