On the cancellation of the order in labor disputes, reinstatement, recovery of wages and compensation for moral damage
The plaintiff K. The defendant applied to the court with a statement of claim to JSC" B " (Bank) for the cancellation of the Order No. 1367-L/s dated October 12, 2018, for reinstatement, recovery of wages and compensation for moral damage. By the decision of the Bostandyk District Court of Almaty dated January 21, 2019, the claim was partially satisfied, and the order of JSC "B" dated October 12, 2018 No. 1367-L/s was canceled, K. He was reinstated to work as the head of the operational management of the Bank's Shymkent branch, in whose favor the defendant received a monthly salary for forced idle time from October 12, 2018 and compensation for moral damage in the amount of 50,000 tenge. 3,000 tenge paid as a state fee in favor of the plaintiff from the defendant and 100,000 tenge paid for the assistance of a representative court costs, 1,812 tenge of state income were collected. By the decision of the Judicial Board of the Almaty city court for civil cases dated May 20, 2019, the decision of the court of first instance was left unchanged. In its petition, JSC" B " indicated that the conclusions of the local courts do not correspond to the circumstances of the case, violations of the norms of material law and asked to cancel the judicial acts adopted in the case, to make a new decision on the refusal to satisfy the statement of claim of K.
The judicial board heard the explanations of the representative of JSC "B" E. in support of the arguments in the petition, the objections of the plaintiff K. and his representative Z. to the petition, studied the case documents and concluded that the disputed judicial acts are unchanged due to the following grounds, the petition is subject to dismissal. As it turned out from the case documents, K. Since June 21, 2010, he was hired by JSC "B" under the Employment Contract No. 4-64 dated June 21, 2010 (hereinafter – Employment Contract No. 4-64), since July 1, 2016 he worked as the head of the Operational Department of the Bank's branch in Shymkent. An additional agreement (hereinafter referred to as an additional agreement) was concluded between K. and JSC "B" dated July 1, 2016 to the Employment Contract No. 4-64, in paragraph 7.10 of which the condition is that the employment contract may be terminated by agreement of the parties in accordance with the procedure established by Article 50 of the Labor Code of the Republic of Kazakhstan (hereinafter referred to as the Labor Code). In accordance with paragraphs 7.10.1., 7.10.2. of the supplementary agreement, the party wishing to terminate the employment contract on the specified basis sends an announcement to the other party; the party receiving the announcement must notify the decision made in writing within three working days; the actual date of termination of the employment contract is determined by agreement of the parties. By order of JSC" B " dated October 12, 2018 No. 1367-L/s, labor relations with K. were terminated. When issuing the order, the Bank referred to Clause 7.10.3. of the additional agreement, indicating the justification for the dismissal of K. "by agreement of the parties". Plaintiff K. On October 12, 2018, K. got acquainted with the Order No. 1367-L/s and declared his disagreement with it in writing. On October 15, 2018, K. sent an application to the bank's Conciliation Commission for the cancellation of the Order No. 1367-L/s, to which he attached the conclusion of the Medical Advisory Commission on 24-week pregnancy dated October 12, 2018. By the protocol decision of the Conciliation Commission for the settlement of individual labor disputes of JSC" B " dated October 23, 2018 No. 4, the application for the cancellation of the Order of K. No. 1367-L/s was dismissed. Thus, according to the Conciliation Commission for the settlement of individual labor disputes, K. found that there are no grounds for recognizing the disputed order as illegal, since the employer gave his consent to terminate the employment relationship in accordance with the procedure provided for in paragraph 7.10.3 of the additional agreement, that is, Paragraph 3 of Article 50 of the Labor Code. However, the employer, when issuing the Order No. 1367-L/s of October 12, 2018 and during the resolution of the labor dispute by the Conciliation Commission, incorrectly assessed the circumstances that occurred in the case and incorrectly applied the relevant provisions of the material law.
In particular, K. got acquainted with the employer's Order No. 1367-L/s and immediately expressed his disagreement with it, on October 15, 2018, he applied to the bank's Conciliation Commission for the cancellation of the controversial order, registered the conclusion of the Medical Advisory Commission on his pregnancy, appealed to the Labor Inspection Department, and then appealed to the court with a statement of claim. The listed circumstances indicate that the plaintiff did not give his consent to the defendant to dismiss him, that is, there were no grounds for termination of the employment relationship "by agreement of the parties". In accordance with paragraph 3 of Article 50 of the Labor Code, an employment contract may provide for the right of an employer to terminate an employment contract without complying with the requirements established by Paragraph 2 of Article 50 of the Labor Code (as well as expressing an intention to terminate the employment contract with a notification and waiting for a response in writing within three days, determining the date of termination of the employment contract by agreement). But at any moment, dismissal in this order should occur only by voluntary consent of the parties. The Conciliation Commission did not take into account that the plaintiff voluntarily agreed to terminate the employment relationship with JSC "B" when concluding an additional agreement in 2016, K. was not pregnant, and at the time of issuing a disputed order, she was a mother of three children, as well as a 24-week pregnancy, and the opportunity to get another job was not provided. In accordance with paragraph 2 of Article 54 of the labor code, it is not allowed to terminate an employment contract with pregnant women on the initiative of the employer only on the grounds provided for in subitems 2) and 3) of Paragraph 1 of Article 52 of the same code (i.e., in cases of reduction in the number or staff of employees; reduction in the volume of production, work performed and services provided, which led to a deterioration in the economic condition of the employer). The bank gave arguments about the dismissal of K. on other grounds, and not for the reasons provided for in subparagraphs 2) and 3) of Paragraph 1 of Article 52 of the Labor Code. However, as it turned out in the case, the employer did not have any other grounds or reasons to terminate the employment relationship with him, not counting K.'s pregnancy. According to Paragraph 1 of Article 8 of the convention 183 (ratified by the law of the Republic of Kazakhstan dated February 14, 2012 No. 554-IV) adopted on June 15, 2000 in Geneva on the revision of convention 103 (Revised) of the International Labor conference "on maternal protection", it is illegal for an employer to dismiss a woman during her pregnancy, except for her dismissal for reasons not related to pregnancy and its consequences.
The burden of proving that the reason for dismissal is not related to pregnancy and the consequences lies with the employer. At the same time, in accordance with subparagraph a) of Paragraph 2 of Article 11 of the convention of December 18, 1979" on the elimination of all forms of discrimination against women " (this convention was joined by the law of the Republic of Kazakhstan dated June 29, 1998 No. 248), States Parties to prevent discrimination against women in connection with motherhood and guaranteeing them an effective right to work undertake to take harmonious measures, as well as prohibit dismissal in connection with pregnancy with the threat of punishment. Since the employer could not prove on the basis of the foregoing that the reason for the dismissal of K. was not related to her pregnancy and its consequences, the conclusions of the courts of first and appellate instance on the illegality of the order of JSC "B" dated October 12, 2018 No. 1367-L/s, as a result of which its cancellation, reinstatement of the plaintiff to his previous job, are considered justified by the Supreme Judicial collegium. At the same time, due to the fact that the local courts correctly assessed the established circumstances, taking into account their relevance, validity and reliability, and the entire collected set of evidence in terms of sufficiency for resolving a civil case, the judicial collegium of the Supreme Court found that there were no grounds for changing or canceling the contested judicial acts. In accordance with the third part of Article 427 of the APC, the force of a valid court decision on its merits cannot be canceled on a single formal judgment. Circumstances and violations of the law that lead to the recognition of substantive and procedural legal norms by the courts of first and appellate instance as illegal are not established. On the basis of the above, the Judicial Board of Cassation for civil cases of the Supreme Court of the Republic of Kazakhstan dismissed the petition of Joint Stock Company "B", leaving the judicial acts of local courts in force.
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