On the cancellation of the act of special investigation, recognition of actions as illegal Labor Inspection Department
No. 6001-24-00-6ap/1316(2) dated April 01, 2025
Plaintiff: JSC "S" (hereinafter referred to as the Company)
The defendants: State Institution "Labor Inspection Department" (hereinafter referred to as the Department) 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: the cancellation of the act of special investigation, recognition of actions as illegal
Review of the plaintiff's cassation complaint PLOT:
On May 2023, a group accident occurred at the plant of the oil and gas processing complex of the Company, as a result of which workers R.B., M.A., M.S. and M.A. were injured.
Subsequently, two employees, R.B. and M.A., died in hospital as a result of an accident.
On May 2023, by order of the head of the Department, a commission was established for the special investigation of a group accident (hereinafter referred to as the Commission).
In the period from May 6 to July 17, 2023, the Commission conducted a special investigation into a group accident, and an act was drawn up based on the results of the investigation on July 25, 2023.
According to the act of special investigation, the commission came to the conclusion that this group accident is related to production and an industrial accident report is drawn up in accordance with the established form for each victim, subject to accounting and registration.
The commission indicated the causes of the accident:
unsatisfactory technical condition of buildings, structures, maintenance of the territory and shortcomings in the organization of workplaces – item
17 classifier (Order of the Minister of Health and Social Development of the Republic of Kazakhstan dated December 28, 2015 No. 1055 "On approval of forms for registration of materials for investigation of accidents related to work" (hereinafter – the Order);
unsatisfactory organization of work – item 16 of the classifier;
gross negligence of the victim is point 24 of the classifier.
The degree of guilt of the employer and the affected employees is separate: the degree of guilt of the employer is 100%, the degree of guilt of R. B. is 0% ;
the degree of guilt of the employer is 100%, the degree of guilt of M.A. is 0%; 3) the degree of guilt of the employer is 100%, the degree of guilt of B.E. is 0%; 4) the degree of guilt of the employer is 80%, the degree of guilt of M.S. is 20%.
The Commission also identified 15 plaintiff's officials who were found responsible for violations of labor laws in the group accident.
The plaintiff filed a complaint with the Committee, and according to the conclusion of the Chief State Labor Inspector dated October 5, 2023, the act of special investigation of the accident dated July 25, 2023 was found to be drawn up correctly, there are no grounds for cancellation.
In this regard, JSC "S" appealed to the court with the above-mentioned claim, in which it asked to cancel the act of special investigation of a group accident dated July 25, 2023 and to recognize as illegal the actions of the Committee's officials who did not adopt an administrative act in the form of a decision on the Company's complaint against the act of special investigation, as well as did not issue a conclusion on the fact the submission by two members of the commission of dissenting opinions on the contested act.
Judicial acts:
1st instance: By the definition of the SMAC, the claim regarding the recognition of the actions of the Committee's officials as illegal was returned as not subject to consideration in administrative proceedings.
The SMAS decision denied the claim.
Appeal: the ruling and the decision of the court of first instance are left unchanged.
Cassation: judicial acts in this case are upheld.
Conclusions: according to paragraph 5 of Article 188 of the Labor Code, when investigating accidents related to labor that occurred in man-made emergencies as a result of an accident at a hazardous production facility, a representative of the authorized body in the field of industrial safety or its territorial subdivision is appointed chairman of the commission.
In accordance with article 1 of the Law of the Republic Kazakhstan
"On Civil Protection" (hereinafter referred to as the Law) accident - destruction of buildings, structures and (or) technical devices, uncontrolled explosion and (or) release of hazardous substances. Man-made emergencies are emergencies caused by the harmful effects of hazardous industrial factors, transport and other accidents, fires (explosions), accidents with the release (threat of release) of highly toxic, radioactive and biologically dangerous substances.
substances, sudden collapse of buildings and structures, dam breaks, accidents at electric power and life support communication systems, sewage treatment plants.
According to the conclusions of a member of the commission, a representative of the authorized body for industrial safety, the fire occurred due to depressurization due to corrosion wear of the pipeline.
According to the conclusion of the Department of Emergency Situations from
On June 26, 2023, the cause of the fire was the ignition of a gas-air mixture from any ignition source, which may be sparks of electricity when lighting is turned on/off, sparks of static voltage (from clothing when moving), a low-calorie fire source (an unopened cigarette), sparks when electronic devices are triggered (mobile phone), sparks when working with metal a tool, as well as an open source of fire. In this particular case, given the location of the object in an open area outside the room and the free exit of liquefied gas from the depressurization site with gas mixing with air, ignition of the gas-air mixture is possible from any of the above ignition sources.
It was established that there was no accidental destruction of buildings, structures and technical devices, uncontrolled explosions and emissions of dangerous substances, thus, the accident did not occur at the enterprise.
In this regard, the courts legitimately concluded that the composition of the commission was correctly formed in accordance with the requirements of the Labor Code, headed by the chief state labor inspector of the region. In addition, the candidacy of the members of the commission – representatives of the employer and employees were sent by the Company itself.
The conclusions stated in the act of the special investigation on the degree of the employer's guilt are reasonable and correspond to the factual data established during the special investigation of the accident.
The local courts also found that an order had been issued banning the use of a cell phone in the workplace. The presence of M.'s mobile phone was not disputed, the latter acknowledged this fact. However, these circumstances do not affect the commission's conclusions, since the cause of the fire, according to the Department's conclusion, was the ignition of a gas-air mixture from any ignition source.
In the court of appeal, the persons concerned confirmed that M.'s employer was aware of the presence of a mobile phone. This circumstance also confirms the fact that the employer does not have proper internal control over occupational safety and health, which is the direct responsibility of the employer (subparagraph 25) of paragraph 2 of Article 23 of the Code).
The Commission found that the company has established structures to ensure occupational safety and health and appointed responsible officials of these structural units.
Initially, an emergency threat arose when a leak of liquid propane through a through hole (fistula) was detected on the night of April 28-29, 2023 and the responsible officials failed to take immediate response measures.
Meanwhile, for three days (from April 28 to May 1, 2023), the plant did not promptly take measures to eliminate a dangerous situation, as a result of which an accident occurred with the death of two people and serious injuries to workers.
While the oil and gas processing complex belongs to the explosive category, with a high hazard class and degree of risk, the consequences of a fire could be extremely serious and pose a potential threat to the region as a whole.
The lack of timely response to emergency situations, which has led to severe consequences for employees and the risk of a threat to the integrity of the facility, indicates an inappropriate attitude towards the duties of safety and labor protection of responsible officials and management in general.
The eyewitnesses of the rare incident were interviewed by the Commission. During the investigation, the Commission requested the job descriptions of the responsible persons specified in the act of the special investigation, and sent a request for their explanatory notes.
Thus, the conclusions of the local courts that the Commission correctly established that the accident was the fault of the employer, due to the improper condition of the equipment (corrosive wear of the pipeline), while the act of special investigation was signed by the commission members with the right to express a dissenting opinion, the majority of the commission members did not object to the conclusions of the act of special investigation, they deserve attention.
Having checked the conclusions of the courts for their compliance with the circumstances of the case and the applicable norms of substantive and procedural legislation, the judicial board considered that the judicial acts on dispute resolution contested by the cassator were rendered lawfully and reasonably.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
