Recognition of the Existence of Employment Relations
In accordance with paragraph 3 of Article 33 of the Labor Code of the Republic of Kazakhstan, an individual may be permitted to commence work only after the conclusion of an employment contract.
The execution, amendment, or supplementation of an employment contract may be carried out in the form of an electronic document authenticated by the electronic digital signatures of the parties.
When challenging orders regarding the termination or rescission of an employment contract, the courts shall take into account that the employer is obligated, under subparagraph 27) of paragraph 2 of Article 23 of the Labor Code, to enter information regarding the conclusion and termination of employment contracts into the Unified Employment Contract Accounting System, in accordance with the procedure established by the authorized labor body.
If the employment contract is not executed or not properly formalized due to the employer’s fault, the employer shall bear liability as prescribed by the legislation of the Republic of Kazakhstan. In such cases, employment relations shall be deemed to have arisen from the day the employee commenced work.
Pursuant to paragraphs 6 and 7 of the Normative Resolution, where neither the employee nor the employer (customer or contractor) is able to provide documentary evidence of the existence of employment relations, the dispute over the existence or non-existence of such relations may be resolved by the court without recourse to the conciliation commission.
The courts must distinguish civil-law relations from labor relations.
Indicators of labor relations may include circumstances where:
the worker personally performs a job function (by qualification, specialty, profession, or position),
adheres to a labor schedule,
and receives remuneration from the employer for the work performed.
Example 1
Plaintiff Sh. filed a claim with the court requesting:
recognition of the existence of employment relations with the defendant (an individual entrepreneur – IE),
recovery of wages for the period of forced absence,
penalties, and
compensation for moral damages.
No employment or other contracts were concluded in writing between the parties.
By decision of Court No. 2 of Petropavlovsk, North Kazakhstan Region dated August 16, 2023, the claim was partially satisfied:
The court established that Sh. had been in employment relations with the IE,
Ordered the recovery of unpaid wages, penalty interest, and compensation for moral harm,
Dismissed the remaining claims.
In upholding the claim, the court of first instance correctly found that the IE was engaged in the retail sale of furniture and that Sh. worked as a sales assistant at the said retail outlet, performing consultations, customer service, and payment handling, during the period from January 5, 2022, to February 8, 2023, in accordance with a fixed work schedule from 10:00 AM to 7:00 PM, and received regular wage payments for her labor.
The appellate court upheld the lower court’s decision without amendment.
Example 2
Plaintiff A. filed a lawsuit against T., requesting:
recognition of the existence of employment relations and that an employment contract had been concluded,
recovery of unpaid wages,
and an order for the employer to make pension contributions.
By decision of the Abai District Court of Karaganda Region dated May 30, 2023, upheld by the Karaganda Regional Court on August 2, 2023, the claim was satisfied:
The court recognized the existence of employment relations and the fact of an employment contract between A. and T. from August 20, 2020, to July 17, 2022.
The court ordered T. to pay wages and make pension contributions in favor of A.
However, by Ruling of the Civil Division of the Supreme Court dated March 13, 2024, the decisions of the lower and appellate courts were overturned, and a new judgment was issued rejecting A.'s claims.
According to the case file:
A. argued that he had worked for the defendant as a car repair mechanic during the relevant period,
No written employment contract was signed, and no wages or pension contributions were paid.
While the lower courts found evidence of employment relations, the Supreme Court found otherwise:
T. was officially registered as an individual entrepreneur only from February 1, 2023, with technical vehicle servicing as the declared activity.
From July 1, 2015, to April 13, 2022, T. had been registered as an IE engaged in agriculture, not automotive services.
A government agency confirmed that no auto repair business was operating on the premises during the claimed period.
In 2020, A. was employed by another IE (C.), who was making pension and insurance contributions on his behalf. In his free time, A. provided car repair services to T. privately.
Testimony from a May 4, 2023, interrogation in a criminal case (regarding theft of auto parts) indicated that A. had quit his primary job in 2019.
All vehicles repaired belonged to T. as a private individual, and A. received payment accordingly. The work was performed in a building personally owned by T.
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