Payment to the reinstated employee at the previous job of the average salary for the entire time of forced absenteeism, but not more than six months

 

In accordance with the provisions of the Labor Code, wages are remuneration for work, depending on the qualifications of the employee, the complexity, quantity, quality and conditions of the work performed. Compensation and incentive payments also apply to wages.

If it is established that the employment contract with the employee has been terminated without a legitimate reason, the court decides to reinstate the employee to his previous job, while the reinstated employee is paid the average salary for the entire time of forced absenteeism, but not more than six months.

At the request of the employee, the court may limit itself to making a decision on the payment of an average salary to the employee, but not more than six months in advance.

The same rule is enshrined in the Regulatory Decree of the Supreme Court "On certain issues of the application of legislation by courts in the resolution of labor disputes", according to which, instead of reinstatement at the request of an unlawfully dismissed employee, the court may limit itself to making a decision on recovery in his favor of average earnings during forced absenteeism (but not more than six months) and about changing the wording of the grounds for dismissal to voluntary dismissal.

If it is impossible to restore an employee to his previous job as a result of the liquidation of the organization or the termination of the activity of the employer (individual), the court recognizes the dismissal as illegal, obliges the liquidation commission or the body that decided to liquidate the organization (if the liquidation was not carried out by a court decision), and in appropriate cases, the legal successor to pay the employee the average earnings during the forced absenteeism, but in no more than six months.

It should be remembered that according to pp. 2) Article 243 of the CPC, the court's decision to award an employee a salary, but not more than three months in advance, is subject to immediate execution. Accordingly, if the suspension order is declared illegal and cancelled, with the payment of wages for the time of forced absenteeism, the decision in this part is subject to immediate execution (but not more than three months).

For example, the decision of the Atyrau City Court partially satisfied the claim of H.A.H. to the limited liability company "C.T.G.".She was reinstated as a cost management control specialist, and in her favor, the salary for forced absenteeism for the period from June 15, 2015 to March 18, 2016 in the amount of KZT 2,793,500, KZT 50,000 in compensation for moral damage, and KZT 31,500 in costs was recovered from C.T.G. LLP. related to the case, a total of 2875500 tenge. The court refused to satisfy the claims regarding the recovery of compensation for moral damage in the amount of KZT 3,450,500. A state duty of 85,811 tenge was collected from the defendant to the state income.

The court found that since February 17, 2014, on the basis of an employment contract, plaintiff H.A.T had been working as a cost management control specialist. Based on her application, in the period from May 13, 2015 to June 14, 2015, she was granted leave without pay, at the end of which she was not allowed to work without completing the termination of the employment contract in accordance with the procedure established by labor legislation. The defendant did not provide the court with reliable evidence of the proper execution of the plaintiff's dismissal. The court concluded that C.T.G. LLP was illegal in not allowing the plaintiff to work, and therefore she was reinstated. In addition, the court satisfied the plaintiff's claims to recover from the defendant wages for the period of forced absenteeism for 9 months, from June 15, 2015 to March 18, 2016 2793500 tenge.

During the appeal review of the court's decision, the judicial Board found that the court of first instance did not take into account the limitation on the amount of the amount to be recovered, established by part 1 of Article 161 of the Labor Code (part 2 of Article 177 of the Labor Code of 2007). An employee who is reinstated in his previous job is paid the average salary for the entire time of forced absenteeism (suspension from work) or the difference in wages during the performance of a lower-paid job in case of an illegal transfer to another job, but not more than six months in advance. In this regard, the board changed the court's decision, reducing the amount of wages collected from the defendant in favor of the plaintiff for the time of forced absenteeism to 1,665,000 tenge, based on the amount of the plaintiff's average monthly salary established by the court - 277,500 tenge. The court's decision regarding the satisfaction of the claim for compensation for moral damage and court costs was not appealed, and remained unchanged.

The Labor Code (Article 114) explicitly defined the calculation of average earnings for paying for time off, which is calculated over the last 12 calendar months of work. For people who have worked for less than 12 months, the average earnings are determined based on the actual time worked. The collective agreement may provide for other periods for calculating the average salary, if this does not worsen the situation of employees. For all cases of determining the average wage provided for by this Code, the authorized state labor body shall establish a uniform procedure for calculating it.

In the event of a dispute over the correctness of calculating the average salary, the courts should be guided by the Uniform Rules for Calculating the Average Salary, approved by the Order of the Minister of Social Protection and Health of the Republic of Kazakhstan No. 567 dated July 7, 2015.

The Labor Code establishes the rule that upon termination of an employment contract, payment of the amounts due to the employee from the employer is made no later than three working days after its termination.

For the delay in payment of wages and other payments related to the termination of an employment contract with an employee, the employer's property liability is provided in the form of payment of penalties.

Based on the disposition of article 113 of the new Labor Code, if the employer fails to pay wages in full and within the time limits set by the employment contract, the employer is liable in accordance with the laws of the Republic of Kazakhstan. The employer pays the employee the debt and the penalty for the period of delay in payment. The amount of the penalty is calculated based on the official refinancing rate of the National Bank of the Republic of Kazakhstan on the day of fulfillment of obligations to pay wages and is calculated for each overdue calendar day, starting from the next day when payments are due, and ends on the day of payment.

In addition, the Labor Code establishes the responsibility of the employer for the late execution of a court decision on the immediate reinstatement of an employee at his previous job. If the employer delays the execution of the decision on reinstatement, the court decides to pay the employee the average salary or the difference in wages for the delay in the execution of the decision.

As a rule, in the presence of an employment relationship, the employer confirmed the average salary by issuing an appropriate certificate. In the absence of reliable evidence of the amount of salary, its amount can be determined from other primary accounting documents of the employer.

If the amount of wages cannot be reliably documented, the courts should make decisions based on the main social task of the Labor Code - to protect the interests of the weak side of the labor relationship - the employee, while bearing in mind that the minimum wage is set at the legislative level.

The courts recovered the average salary for the employees who were reinstated in their previous jobs during their forced absenteeism, while no errors were found in the application of substantive law.

 

 

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