On the recognition of illegal and cancellation of the protocol decisions of the commission meeting
No. 6001-23-00-6ap/500 dated 11/07/2023
Plaintiffs: B.E., I.A., U.R., R.M.
Defendants: akim of the region, State Institution "Health Department"
Interested parties: Ministry of Health of the Republic of Kazakhstan, NAO "Medical University of Kazakhstan", NAO "Social Health Insurance Fund", members of the commission
The subject of the dispute: on the recognition as illegal and cancellation of the protocol decisions of the meeting of the commission for determining the lists of healthcare workers involved in anti-epidemic measures for the accrual of allowances in terms of attribution to the third risk group, on the compulsion to eliminate violations by accruing and paying allowances for the first risk group for the period from April 2021 to September 2021
Review of the defendant's cassation complaint PLOT:
The plaintiffs, being employees of the NAO "Medical University" as a laboratory assistant at the laboratory diagnostics unit of the consultative and diagnostic department of the occupational health clinic, were involved in anti-epidemic measures in the fight against the COVID-19 coronavirus with a transfer to the following position: B.E. – laboratory specialist at the diagnostic unit of the infectious diseases hospital for coronavirus infection, I.A., U.R. - laboratory assistant of the diagnostic unit of the infectious diseases hospital for coronavirus infection since March 19, 2021, R.M. - laboratory assistant at the diagnostic unit of the infectious diseases hospital for coronavirus infection since June 25, 2021.
In accordance with the order of the Minister of Health of the Republic of Kazakhstan dated April 04, 2020 "On some issues of financial support for healthcare workers involved in anti-epidemic measures in the fight against coronavirus
COVID-19", the plaintiffs, by the decision of the meeting of the commission for determining the lists of healthcare workers involved in anti-epidemic measures for the accrual of allowances No. 14 dated April 08, 2021, were assigned to the first risk group, and therefore the corresponding amounts of allowances for March 2021 were accrued.
According to the protocol decisions of the commission meeting No. 15 dated May 11, 2021; No. 16 dated June 09, 2021; No. 17 dated July 08, 2021; No. 18 dated July 10
August 2021, No. 19 dated September 08, 2021; No. 20 dated October 08, 2021, the plaintiffs were assigned to the third risk group, and therefore the plaintiffs were assigned and charged allowances for this group, starting from April 2021 to September 2021.
The plaintiffs, disagreeing with their assignment to the third risk group, appealed to the court with an administrative claim against the defendants to challenge the actions to withhold payment for the first risk group, forcing them to eliminate the violations by accruing and paying allowances for the first risk group.
Judicial acts:
1st instance: the claim was denied.
Appeal: the court's decision was overturned with a new decision on the satisfaction of the claim. It was decided to declare illegal and cancel the protocol decisions of the meeting of the commission for determining the lists of employees of healthcare organizations involved in anti-epidemic measures for calculating allowances in terms of classifying B.E., I.A., U.R., R.M. to the third risk group. Oblige Government institution
The Health Department will eliminate the violations by calculating and paying allowances for the first risk group for the period from April 2021 to September 2021.
Cassation: the decision of the judicial board is upheld.
Conclusions: indeed, the court found that the plaintiffs, from the moment the infectious diseases hospital was opened on the basis of the Occupational Diseases Clinic, were its employees and were on staff, which the defendants did not deny.
Appendix 1 to the Order of the Minister of Health of the Republic of Kazakhstan dated April 4, 2020 No.KR DSM-28/2020 "On certain issues of financial support for healthcare system employees involved in anti-epidemic measures to combat the coronavirus COVID–19" (hereinafter referred to as the Order) provided for the amount of salary allowances for healthcare system employees, those involved in anti-epidemic measures in the fight against the COVID-19 coronavirus and risk groups.
According to paragraph 1 of Annex 1 to the Order, the amount of salary allowances for healthcare system employees involved in anti-epidemic measures to combat the COVID-19 coronavirus is determined by the risk groups of infection with the COVID-19 coronavirus.
Thus, the determining criterion for assigning employees to a particular group is the risk of infection with the COVID-19 coronavirus. Size
The allowances depend on the risk group.
In accordance with the amendments made by the order of the Minister of Health of the Republic of Kazakhstan dated August 19, 2020 to paragraph 5 of the above-mentioned Order, a commission is being established by the local executive body of the region, the city of republican significance and the capital to organize financial support for employees.
According to paragraph 9 of the Order, the commission, based on a proposal from the head of the health organization, determines a list of employees who receive allowances indicating the risk group for infection with the COVID-19 coronavirus.
As can be seen from Appendix 1 to the Order (as amended by the Order of the Minister of Health of the Republic of Kazakhstan dated August 19, 2020, which was in force at the time of the dispute):
- the 1st (first) risk group includes doctors, middle and junior medical workers in infectious diseases hospitals, including intensive care units and other hospitals designated to provide medical care to patients with the COVID-19 coronavirus;
- the 3rd (third) risk group includes doctors, middle and junior medical staff of quarantine hospitals; laboratory specialists, including virologists.
Plaintiffs B.E., I.A. and U.R. in April 2021 received allowances for the month of March for the 1st risk group in the amount of 480,434.78 tenge.
Subsequently, these allowances were awarded to all plaintiffs for the 3rd (third) risk group.
Disagreeing with the classification of their 3rd (third) risk group, the plaintiffs filed this lawsuit with the court, referring to the fact that they are laboratory assistants at an infectious diseases hospital, not a quarantine one, and belong to the first risk group.
From the literal interpretation of the text of Appendix 1 to the Order, it has been established that the first risk group includes doctors, middle and junior medical workers in infectious diseases hospitals, who are directly identified to provide medical care to patients with the COVID-19 coronavirus. Plaintiff B.E.. It refers to medical personnel, the plaintiffs I.A., U.R. and R.M. belong to secondary medical workers, while during the period of validity of the Order they were employees of the infectious diseases hospital for CVI, established on the basis of their Occupational Health Clinic.
Whereas, the third risk group includes laboratory specialists, to whom the plaintiffs did not belong, since they were employees of the diagnostic unit of the infectious diseases hospital, who were assigned to provide medical care to patients with the COVID-19 coronavirus.
The plaintiffs worked in the red zone directly with the biomaterial, that is, they manually touched the infected biomaterial.
Moreover, the parties did not deny that the diagnostic unit was located in the same building as the infectious diseases hospital, and the bedding of sick hospital patients was transferred for disinfection through the diagnostic unit.
Consequently, the plaintiffs were reasonably included in the list of the first risk group when calculating allowances for the month of March 2021 and should have been further included in the list of healthcare workers involved in anti-epidemic measures in order to calculate allowances for the first risk group.
The Commission mistakenly assigned the plaintiffs to the 3rd (third) risk group, believing that since the plaintiffs are laboratory assistants in their specialty, they belong to the third risk group as laboratory specialists. Meanwhile, the determining factor in classifying medical workers of an infectious diseases hospital as the first risk group is their determination to provide medical care to patients with the COVID-19 coronavirus, which the plaintiffs belong to, since they are not laboratory workers, but laboratory assistants of the diagnostic unit of the infectious diseases hospital.
The Court of appeal's conclusion is justified that laboratory specialists (including virologists) who are not affiliated with infectious diseases hospitals are allocated to a separate third group, whereas all medical workers in infectious diseases hospitals, including clinical departments and paraclinical units, are included in the 1st (first) risk group.
The absence of such clarifications in the text of the order led to a dispute between the parties to the case, meanwhile, by virtue of article 12 of the CPC, all doubts, contradictions and ambiguities of the legislation of the Republic of Kazakhstan on administrative procedures are interpreted in favor of the participant in the administrative procedure.
Since the plaintiffs B.E., I.A., and U.R. were paid allowances for the 1st (first) risk group in March 2021, it is reasonable to apply the principle of protecting the right to trust provided for in part one of Article 13 of the CPC, according to which the trust of a participant in an administrative procedure in the activities of an administrative body or official is protected by the laws of the Republic of Kazakhstan, as well as the principle of proportionality, enshrined in article 10 of the CPC.
In such circumstances, the attribution of the plaintiffs for the accrual of allowances to
The 3rd (third) risk group, when determining the lists of employees of healthcare organizations involved in anti-epidemic measures, does not meet the requirements of labor legislation and contradicts the principles of the APPC.
Thus, the court of appeal found a violation of the rights and interests of the plaintiffs when they were included in the list of the 3rd (third) risk group.
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