Recognition of the Order as Invalid with Reinstatement in the Previously Held Position

The Plaintiff, D E Ba, filed a claim with the Karasai District Court of Almaty Region seeking compensation for moral harm and recognition of the order as invalid based on the following arguments.

On September 1, 2021, an employment contract No. 123-21 was concluded between the employer, MKC LLP (hereinafter referred to as the “Defendant”), and the employee, Doy Eы Boy (hereinafter referred to as the “Plaintiff”). Pursuant to the Defendant’s Order No. 268 l/s dated September 1, 2021, the Plaintiff was employed as a warehouse keeper.

On April 10, 2024, an accident occurred with the Plaintiff at the workplace, namely, on the territory of the Defendant, in the finished goods warehouse, the driver of an electric forklift (kar), S B., while performing his duties and moving in reverse, ran over the warehouse manager, Du E.B., who sustained bodily injuries (the degree of harm to health established as a result of the forensic medical examination was classified as moderate harm to health).

On May 22, 2024, after the commission for investigating occupational accidents had been formed, the Defendant drew up Act No. 1 on an accident related to employment activity. According to the special investigation report dated May 21, 2024, the commission appointed by Order No. 37 dated April 22, 2024, of the head of the Municipal State Institution “Labor Inspection Department of Almaty City” established that the cause of the accident was:

– unsatisfactory organization of work by the head of the warehouse of MKC LLP, Noy V.E., expressed in failure to ensure safe working conditions for warehouse employees, namely failure to apply road markings to ensure the movement of pedestrians and technological vehicles under safe conditions. She violated the requirements of paragraph 4 of Article 184 of the Labor Code of the Republic of Kazakhstan and subparagraph 2.21 of paragraph 2.2 of the Job Description of the Head of the Warehouse, approved by the Director of MKC LLP on January 4, 2023.

The forklift driver S B. violated the requirements of paragraph 3.8 of Instruction No. 1 on occupational safety for the forklift driver, approved by the head of MKC LLP on July 7, 2023, namely:

– during work, the forklift driver is obliged to carefully monitor the actions and whereabouts of employees located within the forklift operating zone, give an audible signal and make sure that the employees have heard and responded to it. If pedestrians do not leave the roadway, the forklift must be stopped.

Training, instruction and knowledge testing on occupational safety and health issues were not conducted with the Plaintiff by the occupational safety and health engineer Aym A.A., which constitutes a violation of subparagraph 2) of paragraph 2 of Article 182 of the Labor Code of the Republic of Kazakhstan, which provides that the employer is obliged to conduct training, instruction and knowledge testing of employees on occupational safety and health issues, as well as to provide documents on the safe conduct of the production process and work at its own expense.

The commission’s conclusions regarding the connection of the accident with production and the persons who committed violations of labor legislation: having inspected the scene, carefully examined the regulatory documents and studied the explanations of the representatives of MKC LLP, the commission considered this accident involving the Plaintiff to be related to employment activity, with the preparation of an accident report and its registration with MKC LLP. The degree of fault of the employer was 100%, and the degree of fault of the employee was 0%.

The above circumstances taken together confirm that the accident occurred exclusively through the fault of the employer, which was directly established by the special investigation commission. This conclusion is of decisive legal significance, as it demonstrates that the Defendant committed gross violations of labor legislation and occupational safety rules by failing to ensure safe working conditions, proper organization of the production process and control over compliance with safety requirements by authorized employees.

The accident was a direct consequence of the Defendant’s systematic negligence, expressed in the absence of mandatory road markings, disorganization of warehouse routes for the movement of loading equipment, as well as the failure of the occupational safety and health engineer Aym A.A. to conduct training and instruction of employees, which constitutes a direct violation of the requirements of subparagraph 2) of paragraph 2 of Article 182 of the Labor Code of the Republic of Kazakhstan. The employer was obliged to provide employees with instructions for the safe performance of work, conduct briefings, knowledge testing and monitor compliance with safety requirements; however, these obligations were not fulfilled. Moreover, the head of the warehouse, Naya V.E., failed to ensure the organization of a safe production process, allowing personnel and loading equipment to work without appropriate measures to separate pedestrian and vehicle movement zones, which directly violates the requirements of Article 184 of the Labor Code of the Republic of Kazakhstan and her official duties.

As a result of the violations committed, the forklift driver acted without observing the necessary precautionary measures and violated the requirements of the Safety Instructions for the Forklift Driver, which is also confirmed by the investigation materials. All these circumstances are causally connected with the resulting consequences in the form of a moderate occupational injury sustained by the Plaintiff.

The injury sustained resulted in a significant and permanent deterioration of the Plaintiff’s health, which is confirmed by Medical and Social Examination Act No. 1240363-2100 dated November 4, 2024, according to which Doy E.B. was assigned disability group III, loss of general working capacity of 50% and professional working capacity of 55%, while the degree of ability to perform employment activity was determined as the first degree, which indicates a permanent limitation of vital activity. The nature and extent of the injuries, the need for surgical intervention, subsequent prolonged treatment, rehabilitation and restriction of motor function directly indicate the severity of the harm caused.

By the Defendant’s Order dated May 20, 2024, the Plaintiff was paid KZT 500,000; however, this amount is nominal in nature and does not cover even the actual amount of treatment and rehabilitation expenses, which exceed KZT 676,552, as confirmed by the relevant documents. Payment of only part of the expenses, and moreover in a minimal amount, does not release the employer from the obligation to compensate for the full harm caused, as required by Articles 157, 158 and 161 of the Labor Code of the Republic of Kazakhstan and Articles 917, 921 and 922 of the Civil Code of the Republic of Kazakhstan. The law establishes the employer’s obligation to compensate all expenses related to treatment, purchase of medicines, procedures, rehabilitation and care, lost earnings, as well as moral harm caused by the injury to health.

Additionally, the Plaintiff draws the court’s attention to the fact that the criminal case against forklift driver Sa B.A., registered in the Unified Register of Pre-Trial Investigations under No. 247519031000959, was terminated on November 13, 2024 under Article 68 of the Criminal Code of the Republic of Kazakhstan due to reconciliation of the parties. Termination of the criminal prosecution against the driver as an individual in no way releases the employer from civil liability for violation of occupational safety requirements, failure to properly organize the production process and failure to comply with mandatory occupational safety standards that caused the accident.

The occupational injury sustained by the Plaintiff caused her not only severe physical suffering associated with multiple fractures, surgical interventions, prolonged treatment and subsequent restriction of mobility, but also profound emotional and moral distress. The injuries sustained changed her usual way of life, limited her ability to fully participate in professional activities and social life, and resulted in a feeling of helplessness and dependence on outside care, which is confirmed by the MSE Act establishing disability group III, loss of general and professional working capacity, as well as the need to use assistive devices and undergo rehabilitation.

All the circumstances set out above, taken together, caused the Plaintiff substantial moral harm, expressed in suffering, anxiety, fear of losing her working capacity, emotional exhaustion associated with forced prolonged treatment and pain, as well as disruption of her usual rhythm of life and deterioration of her quality of life. These sufferings are a direct consequence of the employer’s improper actions, which gives the Plaintiff the legal right to claim compensation for moral harm in a fair and proportionate amount.

Pursuant to paragraph 1 of Article 937 of the Civil Code of the Republic of Kazakhstan (hereinafter – the “Civil Code”), expenses caused by injury to health (for treatment, additional nutrition, purchase of medicines, prosthetics, outside care, sanatorium and resort treatment, purchase of special vehicles, training for another profession and others) shall be reimbursed by the employer who caused the harm to the employee’s health, within the limits established by the Labor Code of the Republic of Kazakhstan.

Article 917 of the Civil Code provides that harm (property and/or non-property) caused by unlawful actions (inaction) to property or non-property benefits and rights of citizens and legal entities shall be subject to compensation in full by the person who caused the harm.

On March 5, 2025, the Defendant issued Order No. 66 l/s terminating the employment contract with the Plaintiff under subparagraph 6) of paragraph 1 of Article 52 of the Labor Code of the Republic of Kazakhstan, “incompatibility of the employee with the position held or the work performed due to health condition.” In violation of the requirements of Article 61 of the Labor Code of the Republic of Kazakhstan, the Defendant has neither delivered the order to the Plaintiff nor sent it to her by registered mail with acknowledgment of receipt to date. The order was obtained from the labor inspectorate during consideration of our complaint regarding the legality of the dismissal.

The Plaintiff disagrees with the said order on the following grounds:

According to Medical and Social Examination Act No. 1240363-2100 dated November 4, 2024, she was assigned disability group III, loss of general working capacity of 50% and professional working capacity of 55%. At the same time, Section 2 of the Act states: “Ability to perform employment activity – Grade I,” which means that the ability to work is preserved and that work may be continued if appropriate conditions are created.

Certificate No. 3240363-911 dated November 4, 2024 on the degree of loss of general working capacity confirms only partial loss of working capacity (50%), but does not contain a conclusion regarding the complete inability to perform work.

The conclusion of the Medical Advisory Commission No. 57 dated February 18, 2025 also does not contain a direct conclusion that the Plaintiff is unable to perform work in her position.

Pursuant to Article 52 of the Labor Code of the Republic of Kazakhstan, dismissal under subparagraph 6) of paragraph 1 is permissible only if there is a medical conclusion confirming the impossibility of continuing work. However, the documents submitted confirm only a partial restriction and not complete unfitness for employment activity.

Furthermore, pursuant to the Order of the Minister of Health of the Republic of Kazakhstan dated November 24, 2020 No. ҚР ДСМ-200/2020 “On Approval of the Rules for Temporary Transfer to Lighter Work Due to Health Condition,” where there is a conclusion of the Medical Advisory Commission, the employer was obliged to consider the issue of temporarily transferring the employee to lighter work for the period specified in the medical conclusion rather than dismissing her. The Defendant failed to do so, thereby violating the requirements of the said Order and the Plaintiff’s labor rights.

The Defendant also failed to offer her alternative positions or changes to working conditions, which contradicts the principle of preserving the employee’s labor rights enshrined in Articles 22, 48, 52 and 54 of the Labor Code of the Republic of Kazakhstan.

Furthermore, on October 2, 2025, the Plaintiff applied to the Department of the Committee for Labor Inspection of the Ministry of Labor and Social Protection of the Population of the Republic of Kazakhstan in Almaty Region with a complaint regarding the unlawfulness of the dismissal and the employer’s violation of labor legislation. Following consideration of the appeal, on October 23, 2025, the Department sent a response, the content of which is of substantial significance for the present dispute and confirms the violations committed by the employer.

During the inspection conducted by the state labor inspector, it was established that the employer violated the requirements of paragraph 4 of Article 113 of the Labor Code of the Republic of Kazakhstan, since the final settlement with Doy E.B. was made only on April 2, 2025, that is, almost one month after termination of the employment contract. The Inspectorate expressly recognized this fact as a violation of legislation, for which an order was issued to the management of MKC LLP and the responsible person was brought to administrative liability.

The Inspectorate also confirmed the absence of legal grounds for dismissing Doy E.B. under subparagraph 6) of paragraph 1 of Article 52 of the Labor Code of the Republic of Kazakhstan, since the medical documents submitted did not contain a conclusion regarding the impossibility of her continuing employment. The state authority noted that the employer should have considered the issue of temporarily transferring the employee to lighter work, as required by Order No. ҚР ДСМ-200/2020 of the Ministry of Health of the Republic of Kazakhstan, but failed to do so in a timely manner.

Of particular significance is the fact that the employer offered Doy E.B. lighter work only after the labor inspection had been conducted and the inspector had issued recommendations to the employer. Thus, as stated in the official response of the Department, only on October 20, 2025 did MKC LLP send Doy E.B. a notice offering lighter work (the position of video surveillance operator), which directly confirms that, prior to the intervention of the state authorities, the employer had taken no measures to comply with the medical recommendations and preserve the Plaintiff’s employment position.

Thus, the response of the labor inspectorate confirms the unlawfulness of the employer’s actions both in dismissing the Plaintiff and in failing to fulfill its obligation to provide her with appropriate working conditions in accordance with the medical conclusions. The violations established by the state authority objectively confirm the validity of the Plaintiff’s claims against the employer and strengthen the conclusion regarding the need to protect her violated labor rights.

Furthermore, on July 25, 2025, the Plaintiff sent the Defendant a pre-trial claim demanding reimbursement of the actual expenses incurred for treatment and rehabilitation. However, by letter dated August 1, 2025, the employer refused to satisfy the claims, referring to the absence of documentary confirmation of all amounts claimed and asserting that the material assistance previously provided in the amount of KZT 737,000 allegedly exceeded the expenses incurred. This refusal contradicts the case materials and does not reflect the actual amount of funds spent by the Plaintiff, as confirmed by medical documents and receipts.

Subsequently, in compliance with Article 159 of the Labor Code of the Republic of Kazakhstan requiring mandatory recourse to the conciliation commission before applying to court, on October 2, 2025, the Plaintiff submitted an application for resolution of the individual labor dispute. However, to date, no response has been received from the Defendant, which indicates the Defendant’s evasion of participation in the conciliation procedure and violation of the procedure for consideration of labor disputes established by law.

Pursuant to paragraph 4 of Article 8 of the Civil Code of the Republic of Kazakhstan, citizens and legal entities shall act in good faith, reasonably and fairly when exercising their rights, comply with the requirements contained in legislation and the moral principles of society, and entrepreneurs shall also comply with the rules of business ethics. This obligation may not be excluded or limited by contract. Good faith, reasonableness and fairness of participants in civil legal relations shall be presumed.

Pursuant to paragraph 1 of Article 113 of the Civil Procedure Code of the Republic of Kazakhstan, upon the application of the party in whose favor the judgment was rendered, the court shall award against the other party the expenses incurred by that party for payment for the assistance of a representative (several representatives) who participated in the proceedings and was not in an employment relationship with that party, in the amount of the expenses actually incurred by the party.

Pursuant to paragraph 14 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015 No. 7 “On Application by Courts of Legislation on Compensation for Moral Harm,” when considering claims for recovery of wages and compensation for moral harm, courts should bear in mind that, pursuant to Article 24 of the Constitution of the Republic of Kazakhstan (hereinafter – the “Constitution”), everyone has the right to freedom of labor, free choice of occupation and profession, working conditions that meet safety and hygiene requirements, and remuneration for labor without any discrimination. Unlawful dismissal and untimely payment of wages constitute a violation of the employee’s constitutional right to remuneration for labor, which entails a violation of the non-property rights of citizens subject to protection when filing a claim for recovery of wages.

As a result of the unlawful dismissal, the Plaintiff was deprived of her wages and stable source of income, which inevitably resulted in serious moral distress. The unlawful actions of the Defendant placed the Plaintiff in a state of constant stress and emotional tension, causing a sense of vulnerability, injustice and personal inadequacy. Throughout the entire period – from the moment of dismissal until the present time – the Plaintiff has experienced anxiety, uncertainty about the future, a sense of insecurity and deep internal discomfort, which indicates that she suffered significant moral harm directly causally connected with the unlawful actions of the employer.

Pursuant to Article 952 of the Civil Code, moral harm shall be compensated in monetary form. Therefore, based on the criteria of reasonableness and fairness, we assess the amount of compensation for moral harm at KZT 2,000,000.

Thus, taking into account the above circumstances, we submit that the dispute between the parties has not been resolved in this case, the employer acted unlawfully by dismissing the Plaintiff on fabricated grounds, and therefore the Plaintiff was forced to apply to the court to protect her rights and legitimate interests and restore justice.

Based on the foregoing, guided by Article 952 of the Civil Code and the labor legislation of the Republic of Kazakhstan, we asked the court:

• To recognize as unlawful the Order of MKC LLP dated March 5, 2025 on termination of the employment contract with Doy Eoy Boy;

• To reinstate Du Eu Bu at MKC LLP in her previously held position (or in another position corresponding to her health condition);

• To recover from MKC LLP in favor of Doy Eoy Boy KZT 1,380,000 (one million three hundred eighty thousand tenge) for the period of forced absence from work;

• To recover from MKC LLP in favor of Doy Eoy Boy compensation for moral harm in the amount of KZT 2,000,000 (two million tenge);

• To recover from MKC LLP in favor of Doy Eoy Boy representative expenses in the amount of KZT 400,000.

On January 29, 2026, the Karasai District Court of Almaty Region, composed of presiding judge A.Zh. Shoibekov, with D.B. Muratbekova acting as secretary of the court session, considered in an open court hearing civil case No. 1952-25-00-2/5579 upon the claim of D E Ba against the Defendant, MKC Logystics Limited Liability Partnership.

THIRD PARTIES NOT MAKING INDEPENDENT CLAIMS AS TO THE SUBJECT MATTER OF THE DISPUTE:

1. Republican State Institution “Department of the Committee for Labor Inspection of the Ministry of Labor and Social Protection of the Population of the Republic of Kazakhstan in Almaty Region” (hereinafter – the “Department”);
2. Joint Stock Company “Life Insurance Company ‘Eurasia’” (hereinafter – JSC “LIC ‘Eurasia’”);
3. S Berik Abusadykovich.

PLAINTIFF’S CLAIMS:

1. recognition of the order terminating the employment contract as unlawful;
2. recovery of wages for the period of forced absence from work;
3. recovery of compensation for moral harm.

The case materials establish that the accident involving the Plaintiff at the workplace occurred on April 10, 2024.

Pursuant to the Order of the Minister of Health of the Republic of Kazakhstan dated November 24, 2020 No. ҚР ДСМ-200/2020 “On Approval of the Rules for Temporary Transfer to Lighter Work Due to Health Condition,” where there is a conclusion of the Medical Advisory Commission, the employer is obliged to consider the issue of temporarily transferring the employee to lighter work for the period specified in the medical conclusion.

According to Medical and Social Examination Act No. 1240363-2100 dated November 4, 2024, she was assigned disability group III, loss of general working capacity of 50% and professional working capacity of 55%. At the same time, Section 2 of the Act states: “Ability to perform employment activity – Grade I,” which means that the ability to work is preserved and that work may be continued if appropriate conditions are created.

Certificate No. 3240363-911 dated November 4, 2024 on the degree of loss of general working capacity confirms only partial loss of working capacity (50%), but does not contain a conclusion regarding the complete inability to perform work.

The conclusion of the Medical Advisory Commission No. 57 dated February 18, 2025 also does not contain a direct conclusion that the Plaintiff is unable to perform work in her position.

On October 20, 2025, the Defendant sent the Plaintiff a notice offering lighter work (the position of video surveillance operator).

However, no response to the notice was received from the Plaintiff.

On November 4, 2024, she last submitted an unclosed certificate of temporary incapacity for work.

On November 5, 2024, D E.B. did not report for work.

After Doy E.B. had been absent from the workplace for a prolonged period (until March 5, 2025), the employer decided to terminate the employment contract effective March 6, 2025.

On March 5, 2025, the employer issued Order No. 66 l/s terminating the employment contract with Doy E.B. under subparagraph 6) of paragraph 1 of Article 52 of the Labor Code, “incompatibility of the employee with the position held or the work performed due to health condition.”

The Act on the Results of Inspection No. 9780 dated October 22, 2025 did not identify any violations of the dismissal procedure.

Despite the absence of documents concerning the Plaintiff’s health condition, the employer made payments to the Plaintiff throughout the entire period of her absence; additionally, the Plaintiff was paid material assistance in the amount of KZT 737,000, which is confirmed by receipts signed by Doy E.B.

Pursuant to the compulsory insurance contract for an employee against accidents in the performance of employment (official) duties concluded with JSC “LIC Eurasia” on October 3, 2023, the Plaintiff received insurance payments in the amount of KZT 1,187,499.

No evidence of the unlawfulness of the order was submitted to the court.

The court notes that the criminal case against the third party – forklift driver Sa B.A., registered in the Unified Register of Pre-Trial Investigations under No. 247519031000959, was terminated on November 13, 2024 under Article 68 of the Criminal Code of the Republic of Kazakhstan due to reconciliation of the parties.

At the court hearing, the Plaintiff’s representative explained that the Plaintiff had received KZT 2,000,000 from the third party, Sa B.A., as compensation for the harm caused.

The court established that the Plaintiff currently does not wish to be reinstated in her former position.

Pursuant to paragraph 4 of Article 8 of the Civil Code of the Republic of Kazakhstan, citizens and legal entities shall act in good faith, reasonably and fairly when exercising their rights, comply with the requirements contained in legislation and the moral principles of society, and entrepreneurs shall also comply with the rules of business ethics.

This obligation may not be excluded or limited by contract. Good faith, reasonableness and fairness of participants in civil legal relations shall be presumed.

Under the circumstances set out above, the court, proceeding from the criteria of fairness and reasonableness, concludes that there are no grounds for granting the claim.

Guided by Articles 223–226 of the Civil Procedure Code, the court

RESOLVED:

To leave without satisfaction the claim of Doy Eы Бы against the Limited Liability Partnership “MKC” for recognition of the order terminating the employment contract as unlawful, recovery of wages for the period of forced absence from work, and compensation for moral harm.

 

 

 

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