Pre-trial dispute settlement procedure for reinstatement of dismissed employees

In accordance with paragraphs 1 and 2 of Article 159 of the Labor Code, individual labor disputes are considered by conciliation commissions, and on unresolved issues or non-compliance with the decision of the conciliation commission - by the courts, with the exception of small businesses and heads of the executive body of a legal entity. Conciliation commissions are permanent bodies established in organizations, its branches and representative offices on a parity basis from an equal number of representatives from the employer and employees. Consequently, the conciliation commission considers all disputes, except for disputes with the heads of the executive body and employees of a small business entity.

According to paragraph 2 of Article 161 of the Labor Code, the decision of the conciliation commission or the court for the consideration of an individual labor dispute on the reinstatement of an employee at his previous job is subject to immediate execution. If the employer delays the execution of the decision on reinstatement, the conciliation commission or the court decides to pay the employee the average salary or the difference in wages during the delay in the execution of the decision.

Despite this imperative requirement of the Labor Code, in practice there are issues related to the employer's refusal to comply with the decisions of the conciliation commissions.

It would be great if the enforcement of the decision of the conciliation commission were to be consolidated at the legislative level as an executive document, which, by its very nature, is subject to strict enforcement, which will certainly increase both the effectiveness of the commission's work and its real importance in resolving labor disputes. In such cases, for example, disputes over claims for the recovery of wage arrears or other labor disputes that are not particularly difficult would eventually find a real solution directly in the labor collective. In such cases, it would not be necessary to re-apply to the court for dispute resolution already in the context of the issue of non-compliance with the decision of the conciliation commission.

Some courts have ruled out the return of claims in this category of cases on grounds related to non-compliance with the pre-trial dispute resolution procedure. This indicates the absence of a formal approach when accepting statements of claim, since the issue of the plaintiff's pre-trial dispute resolution procedure and the assignment of the defendant to small, medium or large businesses can be resolved at the stage of preparing the case for trial.

In the absence of information on the pre-trial dispute settlement procedure, as well as information on the assignment of the defendant (employer) to a certain category of business entities, the courts acted in the same way.

For example, R.R.Zh. filed a lawsuit against JSC Ekibastuzskaya GRES-2 Station for the cancellation of the order to terminate the employment contract and reinstatement at work.

By a court ruling dated November 14, 2016, this claim was dismissed due to the plaintiff's failure to comply with the pre-trial dispute settlement procedure. Whereas it follows from the case file that the plaintiff, R.R.Zh., appealed on September 15, 2016 to the conciliation commission of JSC Ekibastuzskaya GRES-2 Station with a complaint of unlawful dismissal.

The complaint of R.N.S. was withdrawn from consideration by the conciliation commission only on October 14, 2016, i.e. on the day of the plaintiff's statement of claim to the court - October 18, 2016, the complaint was not considered on its merits.

Under such circumstances, the judicial board for civil cases of the Pavlodar Regional Court concluded that in this case the employee's complaint had not been considered by the conciliation commission within the fifteen-day period prescribed by law, therefore, this dispute was unresolved, subject to court review in accordance with paragraph 1 of Article 159 of the Labor Code.

In addition, the ruling of the court of appeal on the cancellation of the ruling of the court of first instance noted that by virtue of article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to judicial protection of their rights and freedoms. At the same time, paragraph 1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 9 dated December 19, 2003 "On certain issues of the application of legislation by courts in resolving labor disputes" draws the attention of the courts to the fact that everyone's right to judicial protection of their rights and freedoms, enshrined in Article 13 of the Constitution of the Republic of Kazakhstan, extends to labor relations.

Thus, the court of first instance had no obstacles to considering the case on the merits on the grounds indicated in the ruling, and therefore the court's ruling to dismiss the claim was canceled.

It can be concluded that the introduction of the institution of mandatory pre-trial settlement of an individual labor dispute in the conciliation commission, formed equally from among representatives of employees and the administration, affected the effective and prompt resolution of such disputes in labor collectives, and in favor of employees, as evidenced by the facts of individual appeals from citizens with claims related to the labor dispute which , prior to going to court , were the subject of consideration by the conciliation commissions, It also explains the fact that there are no lawsuits for the enforcement of decisions of the conciliation commissions.

Regarding the practice of considering civil cases on labor disputes at the request of civil servants, it should be noted that the pre-trial dispute settlement procedure established by article 159 of the Labor Code does not apply to civil servants, law enforcement officials, special government agencies, military personnel, judges, members of parliament, maslikhats.

Skipping the deadline for applying to court after the conciliation commission considers the application of a dismissed employee is one of the grounds for rejecting a claim for reinstatement, as can be seen from the following example.

The Aksu City Court granted the claim of K.S. Osipov to JSC Eurasian Energy Corporation for reinstatement.

During the appeal review of the decision, the Judicial board checked the arguments of the defendant's representative about missing the deadline for applying to the court.

Thus, from the case materials, in particular, a copy of order No. 309-k dated 12/22/2015, submitted by the plaintiff, which was verified with the original and signed by the judge, it reliably follows that the plaintiff was acquainted with the order and a copy of the order was handed to him on the day of its publication, that is, 12/22/2015.

The court reasonably applied the provisions of Article 160 of the Labor Code to this legal relationship, since this provision of the new law, in comparison with the wording of a similar provision of the previous law, improves the position of the plaintiff in terms of the timing of the application for consideration of a labor dispute.

Moreover, the plaintiff O.K.S. independently chose a method of protection, in accordance with the above-mentioned provision of the law, within a month, that is, on 01/22/2016, applied for consideration of the dispute and reinstatement to the conciliation commission of Eurasian Energy Corporation JSC.

 

At the same time, when applying to the court with this statement of claim, the plaintiff missed the two-month period established by subparagraph 1) of Article 160 of the Labor Code for applying to the court in an unresolved dispute about reinstatement. A copy of the decision of the conciliation commission, namely the minutes of the meeting dated 02/14/2016, was handed over to O.K.S. on 02/9/2016, about which his receipt is in the file.

Consequently, the deadline for filing a lawsuit expired on 9.04.2016. It can be seen from the case file that K.S. Osipov filed a claim with the court on 04/12/2016.

The judicial board recognized the omission of the deadline for applying to the court, along with other circumstances of the plaintiff's commission of disciplinary violations that resulted in the imposition of disciplinary penalties, as the basis for changing the decision regarding the satisfaction of the claim for reinstatement.

 

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