On the appeal of the Labour inspection order

No. 6001-23-00-6ap/435(5) dated 02.11.2023

Plaintiff: Russian State Institution "Department of State Revenue of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan" (hereinafter – the Department)

Respondent: State Institution "Labor Inspection Department" (hereinafter referred to as the Department)

Interested persons: A.N., N.K.

The subject of the dispute: the appeal of the order

Review of cassation complaints of interested persons PLOT:

According to the complaint of T.R., A.N., N.K., the State Institution "Labor Inspection Department" conducted an audit of the actions of the State Institution "State Revenue Department" in the field of compliance with labor legislation.On March 28, 2022, the defendant applied to the State Institution "Management of the Committee on Legal Statistics and Special Accounts  The General Prosecutor's Office of the Republic  Kazakhstan" has registered the Inspection Appointment Act No. 63.

On April 13, 2022, the defendant issued the disputed act on the results of the inspection No. 63 and the instruction on the elimination of violations No. 63.

According to the results of the audit, violations of exceeding the working time limit, non-payment of overtime, work on holidays and at night, non-payment of travel expenses to interested persons T.R., A.N., N.K. were revealed.

Judicial acts:

1st instance: the claim is partially satisfied. The act on the results of the inspection No. 63 dated April 13, 2022 and the order on the elimination of violations No. 63 dated April 13, 2022 of the State Labor Inspector regarding non-payment of overtime were declared illegal and canceled.

Appeal: the court's decision has been changed and a new decision has been made to satisfy the claim in full. The act on the results of the inspection No. 63 dated April 13, 2022 and the order on the elimination of violations No. 63 dated April 13, 2022 were declared illegal and canceled.

Cassation: the decision of the judicial board was overturned with the referral of the case for a new hearing to the court of appeal in a different composition of the court.

Conclusions: the Management of the audit was based on the appeals of employees of the Russian State Institution "Department of State Revenue" T.R., A.N., N.K. dated March 4, 2022 on the fact of violation of their labor rights.

Resolving the dispute and satisfying the claim in full, the appellate instance, applying the provisions of Articles 159 and 160 of the Labor Code, proceeded from the fact that the employees of T.R., A.N., N.K. missed the deadline for applying to the inspector for restoration of violated labor rights. There were no objective reasons preventing timely access to the state labor inspector.

During the inspection, the labor inspector was obliged to give the specified facts a legal assessment, to find out the reasons for not seeking timely protection, since the order issued entails a legal consequence for the payment of wages by the employer.

The Appeals Board also considers that the method chosen by employees to protect labor rights is unfair, since it is aimed at circumventing the deadline for the protection of labor rights. Protection of labor rights can only be carried out within the limitation period, and should also be applied by State control authorities.

The Board does not agree with the above conclusions of the appellate instance, as they contradict the norms of substantive law.

According to article 192 of the Labor Code, the main tasks of the State Labor Inspectorate are:

1) ensuring state control over compliance with the labor legislation of the Republic of Kazakhstan;

2) ensuring the observance and protection of workers' rights and freedoms, including the right to safe working conditions;

3) consideration of appeals, applications and complaints of employees and employers on issues of labor legislation of the Republic of Kazakhstan.

In accordance with paragraphs 1 and 3 of Article 195 of the Labor Code, based on the results of the audit, the state labor inspector, in accordance with the PC, draws up an act on the results of the audit.

Depending on the identified violations of the labor legislation of the Republic of Kazakhstan, the state labor inspector issues (draws up) an order to eliminate violations of the requirements of the labor legislation of the Republic of Kazakhstan, and takes measures to bring the perpetrators to administrative responsibility.

The acts of the State labor inspector are obligatory for execution by officials, individuals and legal entities.

Based on the above-mentioned norms of the Labor Code, it follows that the State Labor Inspectorate, exercising the function of supervising employers, identifies violations of labor legislation by them and takes measures to eliminate them.

In accordance with 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.:

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.

A labor dispute is defined as disagreements between an employee (employees) and an employer (employers), including those who previously had an employment relationship, regarding the application of labor legislation of the Republic of Kazakhstan, the fulfillment or amendment of the terms of agreements, labor and (or) collective agreements, and acts of the employer (subparagraph 16) of Article 1 of the Labor Code).

According to paragraph 2 of Article 179 of the Civil Code, the limitation period is applied by the court only upon the application of the party to the dispute made before the court's decision.

From the literal interpretation of these norms, it follows that the limitation period is applied by the court when considering a labor dispute between an employee and an employer. This claim relates to a dispute between a legal entity and an authorized state body exercising control functions, and accordingly, the court of appeal unlawfully pointed out a violation by the inspector of article 160 of the Labor Code. When conducting an audit, the defendant does not have the right to apply the time limits set for the court and the conciliation commission.

The issued order is a legitimate reaction to the obvious violations of labor legislation committed by the employer, and in itself does not indicate the resolution of an individual labor dispute.

In the order, the inspector states the facts of violation by the employer of the norms of labor legislation, imposing the obligation to make payments to employees. However, the amounts to be paid are not specified in the order.

In case of non-fulfillment of the order or disagreement of the employee with the amount of payments made by the employer, he has the right to file an independent claim with the court for the recovery of wage arrears, within which the issue of the application of the limitation period is subject to discussion.

Moreover, the board draws attention to the fact that the application of the limitation period established by Article 160 of the Labor Code to the activities of the State labor inspector may entail the unlawful exemption of employers from the measures of responsibility established by the Administrative Code for violating the labor rights of employees.

Based on the above, due to violations of substantive law, the decision of the appellate instance is subject to cancellation with the referral of the case for a new hearing in a different composition of the court, and the cassation complaints of the persons concerned are partially satisfied.

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