On some issues of the application of legislation by courts in the resolution of labor disputes
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No. 9.
Based on the results of the generalization of judicial practice, in order to ensure the uniformity of practice in the application of labor legislation by courts, as well as taking into account the issues that courts have when considering this category of cases, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to provide the following clarifications.
The right of everyone to judicial protection of their rights and freedoms, enshrined in article 13 of the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution), also applies to participants in labor relations.
Labor relations of certain categories of persons are regulated not only by the norms of the Labor Code of the Republic of Kazakhstan (hereinafter referred to as the Labor Code), but also by special legislative acts (on law enforcement service, on military service and the status of military personnel, on civil service, on internal affairs bodies, and others).
The legal relations of the parties to an employment contract, except for the conditions stipulated in it, are regulated by a collective agreement, other agreements of the parties and acts of the employer that do not contradict the norms of labor legislation.
When considering labor disputes arising from legal relations that are not regulated by special regulatory legal acts, courts should be guided by the norms of the Labor Code.
If the working conditions of certain categories of employees regulated by other regulatory legal acts worsen the situation of these employees in comparison with the conditions stipulated by the Labor Code, the latter shall be applied in resolving a labor dispute, taking into account the provisions of paragraph 4 of Article 8 of the Labor Code and the hierarchy of regulatory legal acts established by Article 10 of the Law of the Republic of Kazakhstan dated April 6. 2016 No. 180-V "On Legal acts".
Individual labor disputes concerning the application of the labor legislation of the Republic of Kazakhstan arising from employment contracts, collective agreements and acts of the employer provided for in the Labor Code are considered by conciliation commissions, and on unresolved issues or in case of non-compliance with decisions of the conciliation commissions. – courts, with the exception of small business entities, domestic workers, heads of the executive body of the legal entity, and other members of the collegial executive body of the legal entity, as well as the sole executive body of the legal entity.
In addition, when applying in judicial practice the norms introduced on January 1, 2016 on the consideration of individual labor disputes by conciliation commissions in a pre-trial manner, the provisions of paragraph 3 of Article 8, articles 143, 144 and other provisions of the Labor Code should be taken into account that the work of certain categories of employees, including those in military service, employees special government agencies, law enforcement agencies, and civil servants are regulated by the Labor Code with special features, provided for by special laws and other regulatory legal acts of the Republic of Kazakhstan, which do not provide for the possibility of considering individual labor disputes by conciliation commissions. In this regard, the provisions of article 159 of the Labor Code do not apply to these individual categories of employees.
The conciliation commissions consider individual labor disputes on issues arising in the process of applying labor legislation in regulating labor relations, relations directly related to labor, on issues of social partnership, as well as occupational safety and health.
According to article 159 of the Labor Code, the appeal of employees or persons who previously had an employment relationship, or the employer to the conciliation commission is a mandatory stage of the pre-trial settlement of the individual labor dispute that has arisen between them. If a party to an individual labor dispute does not agree with the decision of the conciliation commission in whole or in part, the dispute is considered unresolved, and the party who does not agree with the decision of the conciliation commission, as in the case of non-compliance with the decision of the conciliation commission, has the right to apply to the court for a resolution of the labor dispute.
In accordance with paragraph 4 of Article 159 of the Labor Code, an application submitted to the conciliation commission is subject to mandatory registration by the said commission on the day of filing.
Issues not regulated by the norms of Chapter 15 of the Labor Code on the creation and formation of the composition of the conciliation commission, the procedure for mandatory registration of applications from subjects to the conciliation commission, and the procedure for its work may be provided for in a collective agreement or other separate agreement concluded between the employer and employee representatives, or a provision jointly approved by them.
Article 160 of the Labor Code provides for the following time limits for applying to the conciliation commission or the court for the consideration of individual labor disputes: for disputes about 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 when a party to an employment contract fails to comply with its decision; In other labor disputes– it is 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.
Based on the provisions of paragraph 2 of Article 13 of the Constitution and article 159 of the Labor Code, even if a party to an individual labor dispute misses the deadline for applying to the conciliation commission provided for in article 160 of the Labor Code, her application must be considered by the conciliation commission with a decision, which in the future will allow the party who does not agree with this decision to exercise its right filing a lawsuit in court.
The law does not exclude the right of the conciliation commission to restore the deadline for submitting an application to the conciliation commission for the settlement of a dispute in a pre-trial manner. At the same time, the omission of this deadline may serve as an independent basis for the decision of the conciliation commission to refuse to satisfy the application without a hearing on the circumstances of the dispute.
For participants in labor relations who have the right, in accordance with the Labor Code, to apply to the court without contacting the conciliation commission for the consideration of individual labor disputes, the following deadlines are set:
for disputes about reinstatement at work - three months from the date of delivery of a copy of the employer's act on termination of the employment contract;
In other labor disputes, it is one year from the day when the employee or employer learned or should have learned about the violation of his right.
Having established that the deadlines provided for in Article 160 of the Labor Code were missed for a valid reason, the court must indicate this in the operative part of the decision and resolve the dispute on the merits. The limitation period of the appeal is applied by the court only upon the application of the party to the dispute made before the court's decision.
If the court finds that the plaintiff's labor rights have been violated, but he has missed the deadline for applying to the court for consideration of an individual labor dispute 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 omission of the deadline, refuses to satisfy the claim.
The court is not bound by the conclusions of the conciliation commission, and the individual labor dispute is resolved on its merits within the limits of the plaintiff's claims.
Claims for disputes arising from employment relations are subject to filing in court according to the general rules of civil procedure at the location of the defendant, the body of a legal entity, or at the place of residence of the employer of the individual acting as the defendant in the dispute.
When lawsuits are filed at the location of a branch or representative office in accordance with the procedure provided for in part three of Article 30 of the CPC, only legal entities may be defendants.
In accordance with article 33 of the Labor Code, a person is allowed to work only after the conclusion of an employment contract.
In case of absence and (or) failure to properly formalize an employment contract due to the fault of the employer, he is liable in accordance with the procedure established by the laws of the Republic of Kazakhstan. In this case, the employment relationship is considered to have arisen from the day when the employee actually started work.
In the event that an employee or employer (customer or contractor) is unable to document the existence of an employment relationship, a dispute over the existence or absence of an employment relationship between the parties may be resolved in court without contacting the conciliation commission.
Courts should distinguish civil law relations from labor law relations.
The nature of the employment relationship may be evidenced by circumstances when an employee personally performs work (labor function) according to a certain qualification, specialty, profession or position, subject to labor regulations, and the employer pays him wages for work.
According to article 146 of the Labor Code, the labor of employees who are members of the trade union bodies of a professional union is regulated by the Labor Code with the specifics provided for by the Law of the Republic of Kazakhstan dated June 27, 2014 No. 211-V "On Trade Unions" (hereinafter – the Law on Trade Unions).
In accordance with paragraphs 1, 2, and 3 of article 26 of the Law on Trade Unions, members of elected trade union bodies who are not released from their main work cannot be subjected to disciplinary action without a reasoned opinion from the trade union body of which they are members. The head (chairman) of a trade union body who has not been released from his main job cannot be brought to disciplinary responsibility without a reasoned opinion from a higher trade union body. Termination of an employment contract at the initiative of an employer with members of elected trade union bodies who have not been released from their main work is allowed subject to the general procedure for termination of an employment contract, taking into account the reasoned opinion of the trade union body of which these persons are members, except in cases of liquidation of a legal entity or termination of the activity of an individual employer. An employment contract with the head (chairman) of a trade union body who has not been released from his main job may not be terminated on the initiative of the employer without the reasoned opinion of a higher trade union body, except in cases of liquidation of a legal entity or termination of the activity of an individual employer.
The reasoned opinion of a trade union body is taken into account when issuing an employer's act on the imposition of disciplinary action and termination of an employment contract at the initiative of the employer with members of elected trade union bodies who are not released from their main work, in accordance with the procedure provided for in the collective agreement.
When resolving a dispute about the legality of termination of an employment contract at the initiative of an employer or bringing to disciplinary responsibility, the courts should distinguish between the concepts of "trade union member" and "member of an elected trade union body." The legislation requires obtaining a reasoned opinion from the trade union body of the trade union only in relation to members of elected trade union bodies who are not released from their main jobs. The employer is obliged to obtain a reasoned opinion from the trade union body of the trade union when issuing an order to terminate the employment contract at the initiative of the employer and bring disciplinary responsibility.
The absence of a reasoned opinion of the body of the trade union at the time of termination of the employment contract on the initiative of the employer or bringing to disciplinary responsibility a member of an elected trade union body who has not been released from his main job is an unconditional basis for satisfying a claim for reinstatement, since a reasoned opinion must be obtained before issuing an order.
By virtue of article 38 of the Labor Code, the transfer of an employee to another job is allowed with the consent of the employee, and is formalized by making appropriate changes to the employment contract with the subsequent publication of the employer's act.
In case of a change in working conditions, the employer is obliged to notify the employee in writing no later than fifteen calendar days in advance, unless labor or collective agreements provide for a longer notice period. Notification of changes in working conditions is given to employees only in connection with changes in the organization of production related to reorganization or changes in economic, technological, working conditions and (or) a reduction in the amount of work at the employer, and a change in the working conditions of an employee is allowed if he continues to work in accordance with his specialty, position or profession corresponding to qualifications. In the event of an employee's written refusal to continue working due to a change in working conditions or in the presence of an act stating the absence of a written refusal by the employee, the employment contract with the employee is terminated on the grounds provided for in subparagraph 2) paragraph 1 of Article 58 of the Labor Code.
In accordance with the Labor Code, the employer's act must specify the basis for termination of the employment contract. In this regard, the courts should invalidate the employer's act of termination or termination of the employment contract and only then resolve the issue of reinstatement of the employee at work.
When resolving a dispute about the legality of an employee's dismissal, the courts should distinguish between the consequences of concluding an employment contract for a certain or indefinite period.
In case of termination of an employment contract concluded for a certain period of at least one year, the notice and (or) the act of the employer on termination of the employment contract in connection with the expiration of its term is handed over (submitted) by one of the parties to the employment contract no later than the last working day (shift).
Upon termination of an employment contract concluded for the duration of a certain job, for the duration of the replacement of a temporarily absent employee, or for the duration of seasonal work, notification of termination of the employment contract is not required.
The Labor Code restricts the right of an employer to terminate or terminate an employment contract during an employee's temporary disability on only two grounds, namely: termination of an employment contract if the employee refuses to continue the employment relationship (article 58 of the Labor Code) and termination of an employment contract on the initiative of the employer on the grounds provided for in article 52, with the exception of the cases provided for in paragraphs 1), 18), 20) and 23) of paragraph 1 of Article 52 of the Labor Code.
With regard to pregnant women with a pregnancy period of twelve weeks or more, as well as employees with a child under the age of three who have adopted a child and who wish to use their right to leave without pay to care for a child, an extension of the employment contract is mandatory for the employer. If an employee belonging to this category provides supporting documents granting the right to extend the term of the employment contract, the employer is obliged to extend the employment contract until the day of the end of parental leave, the duration of which is determined by a written statement from the employee. The day of termination of the employment contract is the day of the end of parental leave.
At the same time, it should be borne in mind that the specified duties of the employer do not apply to an employee with whom an employment contract has been concluded for the duration of the replacement of a temporarily absent employee.
In cases where, after the expiration of the contract concluded for the first time for a certain period, it was not terminated, the employee continued to perform his previous work with the knowledge of the employer, and none of the parties notified in writing about the termination of the employment relationship during the last working day (shift), such an agreement is considered extended for the same period, for which was previously concluded.
The Labor Code restricts an employer's right to renew a fixed-term employment contract more than twice. In case of further continuation of the employment relationship, the employment contract is considered concluded for an indefinite period. This rule does not apply to cases of continuation of employment relations with persons who have reached retirement age provided for in paragraph 5 of Article 30 of the Labor Code.
When investigating the issue of compliance with the terms of termination of an employment contract, the courts should take into account that:
in case of termination of an employment contract at the initiative of the employer on the grounds provided for in subitems 1) and 2) of paragraph 1 of Article 52 of the Labor Code, the employer is obliged to notify the employee in writing of the termination of the employment contract at least one month in advance, unless the labor or collective agreements provide for a longer notice period, except for the termination of the employment contract under subparagraph 3) paragraph 1 of Article 52 of the Labor Code. For this reason, the employer is obliged to notify employees in writing of the termination of the employment contract fifteen working days in advance, unless a longer notice period is provided for in the employment or collective agreements.
It should be noted that the notice period for termination of an employment contract can be replaced by payment of wages proportional to the unpaid period only upon termination of the employment contract in accordance with subparagraph 3) of paragraph 1 of Article 52 of the Labor Code.;
in case of termination of an employment contract at the initiative of the employer on the grounds provided for in subitems 1) and 2) of paragraph 1 of Article 52 of the Labor Code, termination of the contract may be made before the expiration of the notice period with the written consent of the employee.;
upon termination of the employment contract on the initiative of the employer on the grounds provided for in subparagraph 3) According to paragraph 1 of Article 52 of the Labor Code, the employer must indicate in the notification the reasons that served as the basis for the termination of the employment contract.;
in case of a negative result of the employee's work during the probation period, the employer has the right to terminate the employment contract with him under subparagraph 7) of paragraph 1 of Article 52 of the Labor Code by notifying the employee in writing, indicating the reasons that served as the basis for the termination of the employment contract.
An unsatisfactory test result must be confirmed by objective data related only to the qualifications of the employee assigned to the job. Consequently, no other circumstances can serve as a basis for termination of the employment contract on this basis. The day of delivery (submission) of the notification of non-completion of the test, indicating the reasons that served as the basis for termination of the employment relationship, is the day of publication of the employer's act of termination of the employment contract.;
upon termination of an employment contract on the initiative of an employee in accordance with the procedure provided for in Article 56 of the Labor Code, the employee must notify the employer in writing at least one month in advance, except for the cases provided for in paragraph 3 of Article 56 of the Labor Code. An employment contract may set a longer period for the employee to notify the employer of the termination of the employment contract. If there is a longer notice period in the employment contract, the employee is obliged to notify the employer within the time period agreed upon by the parties to the employment contract, unless the parties have agreed to shorten the notice period. The notice period for termination of an employment contract includes both time worked and time not worked by an employee (for example, being on vacation, a period of temporary disability, etc.);
The notice of the impending termination of the employment contract may be withdrawn by agreement of the parties during the notice period.;
termination of an employment contract before the expiration of the notice period is allowed only with the written consent of the employer.;
termination of an employment contract on the initiative of an employee is permissible if the notification of termination of the contract came from the employee himself and was his voluntary expression of will.
Upon expiration of the notification period, the Labor Code imposes an obligation on the employer to execute the termination of the employment contract, i.e. to issue an order in a timely manner and familiarize the employee with the order and deliver a copy of it or send a notification letter within three working days from the date the order was issued.
When considering cases concerning the reinstatement of persons whose employment contract has been terminated due to the liquidation of an employer (legal entity), termination of the activity of an employer (individual), reduction in the number or staff of employees (subitems 1) and 2) of paragraph 1 of Article 52 of the Labor Code), the courts are required to verify whether the organization (legal entity), whether the activity of the employer (individual) has been terminated, whether there has actually been a reduction in the number or staff of employees, whether the procedure provided for by legislative acts for the release of employees has been observed, and whether other persons have been hired in their place.
When distinguishing between the concepts of "liquidation" and "reorganization", courts should be guided by the norms of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), given that, according to Article 47 of the Civil Code, a change of ownership or reorganization (merger, affiliation, division, separation, transformation) of an employer organization does not terminate an employment relationship. In this case, termination of the employment contract at the initiative of the employer is possible only with a real reduction in the number or staff of employees.
When considering cases on the reinstatement of persons whose employment contract was terminated due to a decrease in production, work performed and services rendered, which led to a deterioration in the employer's economic condition (subparagraph 3) of paragraph 1 of Article 52 of the Labor Code), the courts are required to verify whether the employer has complied with the procedure established by law for termination of an employment contract on this basis. The employer is obliged to notify employees in writing about the upcoming termination of the employment contract on this basis fifteen working days in advance, unless a longer notice period is provided for in the employment or collective agreements. By agreement of the parties, the notice period may be replaced by the payment of wages proportional to the unpaid period. In the notification, the employer must indicate the reasons that served as the basis for the termination of the employment contract.
Termination of an employment contract on this basis is possible if the following conditions are met at the same time:
closure of a structural unit (workshop, site);
the inability to transfer an employee to another job;
a written notification at least one month in advance to employee representatives indicating the reasons that served as the basis for termination of the employment contract (there is a direct link between the economic changes at the employer and the need to terminate the employment contract).
Consequently, an employment contract can be terminated only if there are a set of conditions defined by law.
The employer must prove his financial insolvency and provide evidence of a deterioration in the economic situation by providing financial documents confirming a decrease in production. Such evidence may include audit reports, early completion of work under civil law contracts, which confirms a decrease in production, work performed and services rendered, which has led to a deterioration in the economic condition of the employer.
Given that the initiative to terminate the employment contract comes from the employer, the obligation to provide such evidence rests with him.
The courts should take into account that in the event of the abolition (liquidation) of a state body, administrative civil servants are paid severance pay in the amount of four average monthly salaries if they have at least three years of public service experience at the expense of the state body that transfers functions, powers and (or) staff units, or a public position is offered in cases where specified in this paragraph.
When reorganizing a State body, the management of the newly formed State body offers a public position to administrative civil servants of the reorganized state body in accordance with their qualifications.
A State body to which the functions, powers and (or) staffing units of another state body, including a liquidated (abolished) or reorganized state body, are offered public positions to administrative civil servants who performed the transferred functions, powers and (or) occupied these staffing units, in accordance with their qualifications.
In case of refusal of administrative civil servants from employment, they are subject to dismissal. Administrative civil servants with at least three years of public service experience are paid severance pay in the amount of four average monthly salaries by a state body to which the functions, powers and (or) staffing units of another state body, including a liquidated (abolished) or reorganized state body (paragraphs 4, 5, 6 of the article 56 of the Law of the Republic of Kazakhstan dated November 23, 2015 No. 416-V "On the Civil Service of the Republic of Kazakhstan" (hereinafter - the Law on Civil Service).
In case of a reduction in the number of staff of a state body, a civil servant holding a reduced public position is paid a severance payment in the amount of four average monthly salaries if he has at least three years of public service experience.
Termination of the employment contract in accordance with subparagraph 4) paragraph 1 of Article 52 of the Labor Code, in view of the employee's inconsistency with his position or work performed due to insufficient qualifications, confirmed by the results of attestation, must be based on the decision of the attestation commission, which must include a representative of the employees, unless otherwise established by the laws of the Republic of Kazakhstan.
The procedure, conditions and frequency of certification of employees are determined by a collective agreement or an act of the employer.
Termination of an employment contract on the grounds provided for in subparagraph 6) of paragraph 1 of Article 52 of the Labor Code on the grounds that an employee does not comply with his position or work performed due to a health condition that prevents the continuation of this work and excludes the possibility of its continuation, must be confirmed by a medical opinion in accordance with the procedure established by the legislation of the Republic of Kazakhstan.
When resolving a claim for reinstatement of a person dismissed on the grounds provided for in subparagraph 16) of paragraph 1 of Article 52 of the Labor Code, the court is obliged to examine evidence as to whether the employee had previously committed misconduct for which he was disciplined, whether the procedure and deadlines for the imposition of this disciplinary penalty established by legislative acts have been observed, whether a sign of repeated non-fulfillment or repeated improper fulfillment of work duties by an employee without valid reasons.
If, during the consideration of the case, the court finds that the person was disciplined for a previously committed offense in violation of the law, then the sign of repetition is excluded, and the plaintiff is subject to reinstatement at his previous job.
When determining the recurrence, it is necessary to be guided by the presence of an employee of one of the types of disciplinary punishment (remark, reprimand, severe reprimand) during the period of its validity, regardless of which disciplinary offense was committed by the employee repeatedly similar to the first offense or another other disciplinary offense. The termination of an employment contract provides for the imposition of disciplinary penalties on an employee for repeated non-performance or repeated improper performance of labor duties without valid reasons.
At the same time, the court should keep in mind that termination of an employment contract on this basis is possible only if there is a previously committed disciplinary offense for which the employee has already been brought to disciplinary responsibility, in accordance with the procedure provided for in Article 65 of the Labor Code.
The day on which the misconduct is discovered, from which the month period begins, is considered to be the day on which the person to whom the employee is subordinate became aware of the commission of misconduct, regardless of whether he is entitled to impose disciplinary penalties or not.;
An employee's refusal to provide a written explanation of the circumstances of his misconduct is not grounds for reinstatement to his previous job if the guilt of committing a disciplinary offense is confirmed by a body of evidence. An act on the fact that an employee has committed a disciplinary offense or an act on the employee's refusal to give a written explanation is not an act of the employer and does not require the employee who committed the disciplinary offense to become familiar with it.
In this case, the employee's refusal to give a written explanation is drawn up after two working days after the request for a written explanation. The requirement to provide an explanation on the fact of the offense committed is made in writing.
The dismissal of an employee for committing embezzlement (including petty theft) at his place of work can take place only if his guilt is proven by a court decision that has entered into force to hold the employee accountable for embezzlement or by a court verdict that has entered into force, which sentenced him to punishment that does not exclude the possibility of continuing his previous work.. Such dismissal is allowed no later than one month from the date of entry into force of judicial acts.
Termination of an employment contract with an employee convicted of embezzlement committed at his place of work to a penalty that precludes the possibility of continuing his previous work is carried out in accordance with the procedure provided for in subparagraph 2) paragraph 1 of Article 57 of the Labor Code;
for violation of labor discipline, the employer has the right to apply disciplinary action to the employee even when, prior to committing this offense, he submitted an application for termination of the employment contract on his own initiative, or a notice of termination of the employment contract by agreement of the parties, since the employment relationship in these cases is terminated only after the expiration of the notice of termination of the employment contract on the initiative of the employee or by agreement of the parties (paragraph 2 of Articles 50 and 56 of the Labor Code);
for committing a disciplinary offense, an employee may be brought not only to disciplinary responsibility, but also to other types of legal action that are not disciplinary action (bringing to financial responsibility, etc.).
When resolving a case on the correctness of termination of an employment contract for absenteeism without a valid reason for three or more consecutive hours per working day (shift), it should be borne in mind that termination on this basis, in particular, can be carried out for:
leaving an employee's place of work without a valid reason, as well as before the expiration of the one-month notice period on termination of the employment contract;
leaving an employee's place of work without a valid reason before the expiration of the employment contract;
absence of an employee at work for three or more consecutive hours during a working day (work shift) for no valid reason outside the workplace, where, in accordance with his work duties, he must perform the work assigned to him.;
unauthorized taking of leave, including unpaid leave (with the exception of unpaid leave to care for a child until he reaches the age of three, which the employer must provide to the employee upon his application in accordance with Article 100 of the Labor Code) or unauthorized use of rest days for work on holidays and weekends.
When considering a case on reinstatement of a person dismissed for absenteeism due to refusal to transfer to another job, the court is obliged to verify the legality of the transfer itself (articles 38, 39, 43 of the Labor Code). If the transfer to another job is recognized as illegal, dismissal for absenteeism cannot be considered justified, and the employee is subject to reinstatement at his previous job.
If, when resolving the case, the court finds that the misconduct underlying the order to terminate the employment contract for violation of labor discipline was expressed in the employee's refusal to continue working due to a change in working conditions and the employee does not agree to continue working under the new conditions, the court has the right, with the consent of the plaintiff, to change the wording of the termination of the employment contract.
At the initiative of the employer (subitems 9) and 10) of paragraph 1 of Article 52 of the Labor Code), the employment contract may be terminated if the employee is at work in a state of alcoholic, narcotic, psychotropic, or substance abuse intoxication (their analogues), including in cases of use during the working day of substances causing a state of alcoholic, narcotic, drug intoxication (their analogues). To terminate an employment contract on these grounds, it does not matter whether the employee was suspended from work due to such a condition.
Termination of an employment contract on these grounds may also occur when an employee was in such a state during working hours or used these substances not at his workplace, but on the territory of an organization or facility where, on behalf of the employer, he was supposed to perform a labor function.
The employee's intoxication or drug intoxication or other type of intoxication must be confirmed by a medical report.
The decision to send an employee for a medical examination is made by a person authorized by the employer. If an employee refuses to undergo a medical examination, an appropriate act is drawn up, which is the basis for termination of the employment contract in accordance with subparagraph 10) of paragraph 1 of Article 52 of the Labor Code.
When considering a dispute in connection with the commission of a disciplinary offense by an employee, the courts should take into account that the choice of the type of disciplinary punishment (remark, reprimand, severe reprimand, termination of the employment contract) is the right of the employer, depending on the disciplinary offense committed by the employee and falls within the competence of the employer with whom the employee is in an employment relationship.
When determining the type of disciplinary action, the employer has the right to apply termination of the employment contract in the cases provided for in the sub-paragraphs 8), 9), 10), 11), 12), 13), 14), 15), 16), 17), 18) paragraph 1 of Article 52 of the Labor Code.
If, when considering the case of reinstatement of a person with whom the employment contract was terminated for violation of labor discipline, the court concludes that the misconduct actually took place, but the termination was carried out in violation of the procedure established by the Labor Code or the deadline for disciplinary action, the employee may be reinstated.
When considering cases on the reinstatement of persons dismissed under subparagraph 13) of paragraph 1 of Article 52 of the Labor Code, the courts should take into account that on this basis, not only employees who directly serve monetary or commodity values (reception, storage, transportation, distribution, etc.), but also other employees who By virtue of their work responsibilities, those who have committed culpable acts or omissions that give rise to loss of confidence in them have direct access to monetary transactions.
Such actions, in particular, may include: receiving payment for services without appropriate documents, measuring, weighing, cheating, violation of the rules for the sale of alcoholic beverages or the issuance of narcotic drugs, overestimation of prices, embezzlement of property or culpable admission of its shortage and surplus, banking transactions conducted in violation of the established procedure.
Termination of an employment contract on the grounds provided for in subparagraph 14) of paragraph 1 of Article 52 of the Labor Code is allowed only in respect of persons directly performing educational functions (school teachers, teachers of educational institutions, preschool educators, industrial training masters, and others) if the immoral misconduct they have committed is incompatible with the continuation of this work. Other employees of educational institutions who do not directly perform educational functions may not be dismissed on this basis.
Immoral should be understood as an offense that contradicts generally accepted norms of behavior, committed not only in the exercise of educational functions, but also in everyday life (swearing, using violence against students, appearing intoxicated, insulting human dignity, etc.).
Termination of an employment contract on the grounds provided for in subparagraph 24) of paragraph 1 of Article 52 of the Labor Code is allowed only in respect of employees who have reached the retirement age established by paragraph 1 of Article 11 of the Law of the Republic of Kazakhstan dated June 21, 2013 No. 105-V "On Pension provision in the Republic of Kazakhstan".
Termination of an employment contract on the grounds provided for in subparagraph 24) of paragraph 1 of Article 52 of the Labor Code is allowed, including with elected heads of trade union organizations on the basis of a decision of the supreme or collegial body of the trade union, regardless of the term of election. Termination of an employment contract with elected heads of trade union organizations may be carried out before the end of the term of office in accordance with the procedure provided for in paragraph 9 of Article 53 of the Labor Code.
Courts should take into account that termination of an employment contract with employees who have reached retirement age is the right, not the obligation, of the employer. The possibility of continuing employment relations with respect to employees who have reached retirement age should be fixed by the provisions of the collective agreement, only with respect to pensioners whose work involves difficult, harmful and (or) dangerous working conditions (subparagraph 9) of paragraph 1 of Article 157 of the Labor Code).
Termination of an employment contract at the initiative of the employer is allowed at any time, regardless of the term of the contract, but after the employee reaches retirement age, with mandatory notification at least one month before the date of termination of the employment contract, with payment of compensation in the amount determined by labor, collective agreements and (or) an act of the employer.
When resolving a dispute about the correctness of termination of an employment contract on the grounds provided for in subparagraph 25) of paragraph 1 of Article 52 of the Labor Code, the court is obliged to verify the employee's actual absence from work for more than one month for reasons unknown to the employer.
The employer has the right to terminate the employment contract on the grounds provided for in subparagraph 25) of paragraph 1 of Article 52 of the Labor Code in the presence of an act on the absence of an employee at the workplace, sending it to the employee by letter notifying him of the need to inform about the reasons for his absence.
If an employee fails to provide the required information within ten calendar days from the date the employer sends him the act by mail and after a month of absence from work for reasons unknown to the employer, the employer has the right to issue an order to terminate the employment contract.
If, when considering a dispute about the reinstatement of a person whose employment contract was terminated by agreement of the parties in accordance with paragraph 3 of Article 50 of the Labor Code, the court concludes that the employment contract provides for the employer's right to terminate the employment contract, without notifying the employee and without specifying the date of termination, but with the payment of compensation, the amount of which is determined by the employment contract, the employee cannot be reinstated.
When considering disputes between persons dismissed from service for misconduct that discredits the authority of the bodies they represent, courts should proceed from the fact that discrediting means committing actions, even if unrelated to the performance of official duties, but clearly undermining in the eyes of citizens the dignity and authority of the bodies they represent.
Misconduct that discredits a law enforcement agency is actions, including those unrelated to the performance of official duties, but clearly undermining the dignity and authority of the law enforcement service in the eyes of citizens, namely: the appearance of employees in public places in a state of alcoholic or narcotic intoxication (obvious to others belonging to a law enforcement agency); disclosure of operational information, causing harm to the investigation; using official position for personal gain; non-statutory relations between employees, trainees and cadets of law enforcement education organizations, which caused a negative public response (paragraph 2 of Article 80 of the Law of the Republic of Kazakhstan dated January 6, 2011 No. 380-IV "On Law Enforcement Service" (hereinafter - the Law on Law Enforcement Service)).
The specifics of public service are the presentation of special requirements for employment and termination of employment relations. In particular, a person entering the civil service assumes a number of restrictions and obligations, according to which he is obliged to provide information about the facts of criminal prosecution, exemption from criminal liability on non-rehabilitating grounds. Failure to comply with the restrictions and obligations assumed by virtue of the provisions contained in the Law on Civil Service and other special laws is grounds for refusal of admission to public service.
Therefore, failure to provide such information or its deliberate distortion may serve as grounds for termination of public service (paragraphs 3, 4 of Article 16 of the Law on Civil Service) and are an unconditional basis for termination of law enforcement service (paragraph 2 of Article 6 of the Law on Law Enforcement Service).
Failure to provide or intentionally distort the above information upon entering the service cannot be regarded as a disciplinary offense, and therefore the application of the limitation period for disciplinary action upon termination of employment with such an employee is unacceptable.
When considering applications challenging the employer's orders to bring an employee to disciplinary responsibility, it should be borne in mind that a violation of labor discipline is the culpable failure or improper performance by an employee of the work duties assigned to him (violation of labor regulations, job descriptions and regulations, orders of the employer, technical rules, etc.).
Such violations include, in particular::
refusal of an employee to perform work duties without valid reasons based on changes in working conditions, if such changes were made to the employment contract with the consent of the employee.;
refusal or evasion without valid reasons from a medical examination, which is mandatory for employees of certain professions, or an expert occupational pathology commission, as well as the employee's refusal to undergo special training necessary to perform work, take exams on safety and operating rules, industrial safety, if this is a prerequisite for admission to work.
If, when resolving a dispute about reinstatement at work, the court recognizes that the employer had grounds for termination or termination of the employment contract, but the order mistakenly referred to the wrong basis of the Labor Code or other law, the court refuses to satisfy the claim. At the same time, in the reasoning part of the decision, the court must specify the specific basis of the Labor Code or other law under which the employment contract was subject to termination or termination.
An employee who is dismissed without a legitimate reason is subject to reinstatement at his previous job, regardless of the fact that the former position at the time of the dispute is actually absent (reduced). Subsequent dismissal of an employee may be carried out only in compliance with the conditions and grounds established by law. However, at the request of an unlawfully dismissed employee, the court may limit itself to making a decision in his favor to recover the average earnings for the time of forced absenteeism (but not more than six months) and to change the wording of the grounds for termination of the employment contract on the initiative of the employee.
Illegally dismissed military personnel are reinstated in their former military service (and with his consent - equal or not lower) positions and are provided with all types of allowances not received in connection with illegal dismissal.
If it is impossible to restore an employee to his previous job as a result of the liquidation of the organization or the termination of the activity of the employer (individual), the court recognizes the termination of the employment contract as illegal, obliges the liquidation commission or the body that decided to liquidate the organization (if the liquidation was not carried out by a court decision), and in appropriate cases, the legal successor to pay the employee the average earnings during the forced absenteeism, but not more than six months in advance. At the same time, the court recognizes the employee as dismissed under subparagraph 1) of paragraph 1 of Article 52 of the Labor Code in connection with the liquidation of a legal entity or the termination of the activity of the employer (individual) from the moment of the decision on liquidation.
Given that the Labor Code does not provide for the employer's right to early withdrawal from work leave without the employee's consent, an employee's refusal to comply with an order to withdraw from work leave cannot be considered a violation of labor discipline.
The right of heads of State bodies to recall civil servants from annual or additional leave, established by paragraph 4 of article 54 of the Law on Civil Service, may also be exercised only with the consent of a civil servant.
The average salary for paying for time off work or suspension from work is determined based on the last 12 calendar months of work. For persons who have worked for less than 12 months, in accordance with paragraph 2 of Article 114 of the Labor Code, the average earnings are determined based on the actual time worked.
When collecting average earnings in favor of an employee who has been reinstated at his previous job, or if the termination or termination of an employment contract is recognized as illegal, the compensation (benefit) paid to him in accordance with the law is subject to offset.
The Labor Code excludes the limits of an employee's financial liability for damage caused.
According to paragraph 7 of Article 123 of the Labor Code, the list of positions and jobs held or performed by employees with whom an agreement on full individual or collective (joint and several) financial responsibility for failure to ensure the safety of property and other valuables transferred to employees, as well as a standard agreement on full financial responsibility, are approved by an act of the employer.
The list of grounds for full financial liability for damage caused to the employer due to the fault of the employee in the performance of work duties is specified in paragraph 8 of Article 123 of the Labor Code.
It is unacceptable to impose full financial responsibility on an employee for damage that can be classified as a normal industrial and economic risk. When concluding an agreement on full financial responsibility, the employer is obliged to create the conditions necessary for employees to work normally and ensure the complete safety of the property entrusted to them.
A collective agreement may include obligations of employees regarding their liability for damage caused by them, indicating a list of positions and jobs held or performed by employees with whom agreements may be concluded on full collective (solidarity) financial responsibility for failure to ensure the safety of property and other valuables transferred to employees.
Courts should take into account that in order to bring employees to full financial responsibility, the Labor Code does not in all cases require a full financial liability agreement, for example, for failure to ensure the safety of property and other valuables, an employee may be held fully liable if he receives material assets under a one-time document.
When considering disputes on compensation for property damage, the courts should distinguish the harm caused by an employee in the performance of his work duties from the harm arising from civil law relations.
The employer with whom the employee has an employment relationship is responsible for the damage caused by the employee in the performance of his work duties to third parties. At the same time, the employer who has compensated the damage has the right to reverse the claim (recourse).
Plaintiffs are exempt from paying state duties in courts for claims for recovery of wages and other claims related to work (subparagraph 1) of Article 616 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget (Tax Code)". In case of satisfaction of the claim, the court, in accordance with Article 117 of the Civil Procedure Code of the Republic of Kazakhstan, is obliged to collect the state fee to the state revenue from the defendant, who is not exempt from its payment.
The footnote. Paragraph 36 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 7 (effective from the date of the first official publication).Invalidate them:
1) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003 No. 9 "On certain issues of application of legislation by courts in the resolution of labor disputes";
2) regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2008 No. 20 "On Amendments to the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003 No. 9 "On Certain Issues of Application of Legislation by Courts in the resolution of labor disputes";
3) Paragraph 9 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 30, 2011 No. 5 "On Amendments and additions to certain regulatory resolutions of the Supreme Court of the Republic of Kazakhstan".
According to article 4 of the Constitution, this normative resolution is included in the current law, is generally binding and comes into force from the date of the first official publication.
Chairman of the Supreme Court of the Republic of Kazakhstan
K.Mamie
Judge of the Supreme Court of the Republic of Kazakhstan, Secretary of the plenary session
K.Shaukharov
© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
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