On the recognition as illegal and cancellation of the act of special investigation of an accident related to the driver's work
No.6001-23-00-6ap/1048 dated October 26, 2023
Plaintiff: AA LLP (hereinafter referred to as the Partnership)
Respondent: State Institution "Management of the State Labor Inspectorate" (hereinafter referred to as the Department)
Interested person: S.K.
The subject of the dispute: on the recognition as illegal and cancellation of the act of special investigation of the accident related to the work of the driver of S.K. dated July 27, 2022
Review of the plaintiff's cassation complaint PLOT:
S.K. is an employee of the Partnership. On September 21, 2021, a traffic accident (hereinafter referred to as the accident) occurred due to the fault of S.E., as a result of which S.K. suffered serious harm to his health.
By the resolution of December 15, 2021 of the investigator of the investigative department of the Department of Internal Affairs, the criminal case against S.E. was terminated on the basis of the amnesty Act of December 7, 2021 No.81VIIIZRK of the Law on Amnesty of the Republic of Kazakhstan in connection with the 30th anniversary of independence of the Republic of Kazakhstan on non-rehabilitative grounds.
Based on the order of the State Department of the State Labor Inspectorate (hereinafter referred to as the defendant) No. 28 dated April 1, 2022, a special investigation commission was appointed.
On July 27, 2021, a Special Accident Investigation Act (hereinafter referred to as the Act) was drawn up with an employee of AA S.K. LLP, which established the degree of fault of the employer at 100%, the employee at 0%.
On May 4, 2022, the members of the AA LLP Commission expressed a special opinion to
The act.
On May 27, 2022, an opinion was issued on leaving the act unchanged. Disagreeing with the Act of the special investigation and the conclusion of the inspector, the plaintiff appealed to the court with a clarified claim, arguing that the legislation explicitly provides for the liability of the person responsible for causing harm, but not the employer, who has nothing to do with causing harm to the employee's health as a result of an accident. The employer's guilt in causing harm to an employee's health as a result of an accident has not been established, the only culprit is S.E. The absence of the employer's guilt in causing harm to the employee's health excludes his guilt in the occurrence of an accident completely. In addition, S.K. completed work at 7:46 p.m., the hit-and-run was completed at 8:10 p.m., that is, 24 minutes after completion of work. At that moment, S.K. was not at his workplace, his working day and work duties were
they were completely completed, he did not put his workplace in order, did not prepare for work, did not perform other actions related to his work functions. Requests to declare illegal and cancel the conclusion of May 27, 2022 and the act of July 27, 2022.
Judicial acts:
1st instance: the claim was denied.
Appeal: the court's decision remains unchanged.
Cassation: judicial acts are upheld.
Conclusions: by resolving the dispute and rejecting the claim, the local courts, guided by the provisions of paragraphs 1 and 2 of Articles 186, 188, 190 of the Labor Code, came to the correct conclusion that the accident with S.K.'s employee with a serious outcome to his health occurred on the territory of the employer, due to the fault of S.E.'s employee.
It follows from the meaning of subparagraph 3) of paragraph 2 of Article 186 of the Labor Code that if an accident occurred while an employee was following from work, then such a case is also subject to investigation.
In this regard, the arguments of the plaintiff's cassation complaint about the illegality of the registration of an industrial accident act contradict the norms of substantive law.
The fact that the criminal case against S.E. was terminated on non-rehabilitating grounds does not entail the cancellation of the act of special investigation, since the case established the employer's guilt in the accident, expressed in insufficient lighting and fencing of dangerous areas on the territory of the fleet, and the admission of a person who does not have the right to drive a bus.
The absence of gross negligence on the part of the injured S.K. in the accident was the basis for the commission to establish the employer's 100% guilt, which corresponds to the provisions of Article 190 of the Labor Code.
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