On the cancellation of the act, the Labor Inspection Department conducted a special investigation to establish 100% of the employer's guilt.
No. 6001-24-00-6ap/3252 dated May 27, 2025
Plaintiff: JSC "Sh" (hereinafter – the Company).
The defendants: State Institution "Labor Inspection Department" (hereinafter referred to as the Department), Russian State Institution "Department Committee of the Industrial
Ministry of Emergency Situations of the Republic of Kazakhstan"
The subject of the dispute: the cancellation of the act of special investigation regarding the establishment of 100% of the employer's guilt.
Review of the plaintiff's cassation complaint PLOT:
The courts established that, according to the employment contract dated February 06, 2023, M.T. was hired by the Company as a 2nd-level switch post on duty.
On January 15, 2024, at the industrial site of the Company, at the Tsentralnaya station of the traffic and freight section, an accident occurred with M.T. during shunting operations, as a result of which the latter died at the scene.
By Order of the Inspectorate No. 13 dated January 16, 2024, a special investigation commission was appointed consisting of: Chairman – Labor inspector - T.S., members: head of the Department of State Control and supervision in the field of industrial safety of the Department - B.B., Head of the Department of Labor Protection and Industrial Safety of the Company - M.B., chairman of the trade union organization - N.N. (hereinafter referred to as the Commission).
On February 26, 2024, the Commission drew up an act of special investigation of the accident, according to the conclusions of which, the degree of fault of the employer is 100%, the degree of fault of the employee is 0%, is to be accounted for as an accident related to work.
Members of the Commission M.B., N.N. expressed a special opinion, according to which the injured employee committed gross negligence and it is necessary to establish a mixed responsibility of the parties.
The Company points out that there is gross negligence on the part of the employee and his violation of the rules of occupational safety and health, which excludes 100% of the employer's fault.
Judicial acts:
I am the authority: the claim was denied.
Appeal: the decision of the court of first instance remained unchanged.
Cassation: judicial acts in this case are upheld.
Conclusions: The local courts, rejecting the claim, came to a reasonable conclusion about the legality of the contested act and the correct distribution of the degree of responsibility of the employer.
During the special investigation of the accident, the commission established:
Violation of railway traffic rules.
Unsatisfactory organization of work:
the duty officer at the railway station of the section of traffic and cargo work, J.E., expressed in the failure to ensure the safety of subordinate personnel (violation of the-14.5-07-2021 paragraphs 2.5, 3.33, 3.51
Job description of the person on duty at the railway station of the section of traffic and cargo work);
on the part of the train builder N.D., expressed in the failure to provide escort for the shunting train and being in a place where there was no better visibility of the maneuvering train (violation of the RI-14.5-01-2021 paragraph 5.11 of the UDiGR Train Compiler's Working Instructions, violation of subparagraph 4) of paragraph 392, subparagraph 1) of paragraph 390 of the Train Instructions The Order of the Minister of Transport and Communications of the Republic of Kazakhstan No. 291 dated May 19, 2011 (hereinafter referred to as the Instruction);
on the part of the locomotive driver B.B. and the assistant locomotive driver J.A., which resulted in the failure to perform a control function, namely, not monitoring the position of the switches (violation of the RI- 01.14.2.1-01-2022 paragraph 4.4.1, paragraph 4.1.2 of the Working Instructions of the Locomotive Crew of the "Locomotive crews" section of the Railway station);
on the part of the head of the railway workshop, N.A., expressed in the failure to monitor subordinate employees (violation of PP-01.14.2-2023, paragraph 4.34 of the Regulations on the Railway workshop); failure to monitor compliance with industrial safety requirements at hazardous production facilities;
on the part of the head of the traffic and cargo work section, S.Zh., expressed in the failure to monitor subordinate employees (violation of PP-14.5-2020, paragraph 4.34 of the Regulation on the "Traffic and cargo work" section); failure to carry out production control over compliance with industrial safety requirements at hazardous production facilities;
on the part of the head of the railway station, B.K., expressed in the failure to exercise control over subordinate employees (violation of the-01.14.2.2-02-2023 3.16 of the Job Description of the head of the UDiGR railway station); failure to carry out production control over compliance with industrial safety requirements at hazardous production facilities;
failure to observe precautionary measures (violation of paragraph 5.1 of the Instruction on Occupational Safety and Health I-OT-47-2020), according to which it is forbidden to walk inside the track and at the ends of the sleepers. This point was violated by an employee due to the fact that there is no passage for movement from the undercarriage.
In accordance with the above requirements of part 2 of Article 190 of the Labor Code, the commission applies mixed liability of the parties and determines the degree of guilt of the employee and the employer as a percentage, only if gross negligence of the employee is established, and it was the cause of the occurrence or increase of harm.
No circumstances have been established in the case indicating gross negligence on the part of the deceased.
The cassator's arguments about the guilt of the deceased employee are based on assumptions. The plaintiff has not provided objective evidence to substantiate these arguments, there are no video surveillance cameras at the C station, and audio recordings of the negotiations have not been preserved.
Since the circumstances of the case were established correctly by the local courts, the norms of substantive and procedural law were applied correctly, the collegium does not find any grounds for canceling or changing judicial acts.
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