Restriction on Termination of Employment Contracts with Pregnant Women

 In accordance with paragraph 2 of Article 54 of the Labor Code, termination of an employment contract on the initiative of the employer on the grounds provided for in subparagraphs 2) and 3) of paragraph 1 of Article 52 of the Labor Code is not allowed for pregnant women who have provided the employer with a pregnancy certificate, women with children under the age of three, single mothers raising a child in under the age of fourteen (a child with a disability under the age of eighteen), by other persons raising the specified category of children without a mother.

D. filed a lawsuit against the LLP to declare illegal the order to terminate the employment contract, reinstate at work and collect wages.

The courts established that on August 26, 2019, according to the employment contract, the plaintiff was hired by the LLP.

The term of the contract is set until August 25, 2020.

After the expiration of the employment contract, the employment contract is extended indefinitely by agreement of the parties.

On December 24, 2020, D.'s employer sent a notice of termination of the employment contract on the basis of subparagraph 2) of paragraph 1 of Article 52 of the Labor Code due to a reduction in the number or staff of employees.

On January 25, 2021, the employer sent the plaintiff a notice of a reduction in wages due to changes in economic conditions and a reduction in the volume of work.

At the same time, the plaintiff was warned that in case of a written refusal to agree to continue work on new terms by February 11, 2021, the employment contract with her would be terminated on the basis of subparagraph 2) of paragraph 1 of Article 58 of the Labor Code.

On February 11, 2021, the employer sent a notice to the plaintiff to return the notice of changes in working conditions dated January 25, 2021 by February 15, 2021.

On February 15, 2021, the employer drew up an act stating that the plaintiff refused to provide a full written response to the employer's notification dated January 25, 2021.

By the employer's Order No. 11-l/s dated February 18, 2021, the employment contract with the plaintiff was terminated on the basis of subparagraph 2) of paragraph 1 of Article 58 of the Labor Code in connection with the employee's refusal to continue working.

On January 20, 2021, the plaintiff handed the employer a letter providing the conclusion of the medical advisory commission dated January 20, 2021 No. 41 on her being pregnant, for a period of 14-15 weeks, with a request to review the decision of December 24, 2020.

In addition, the plaintiff received two letters dated January 29 and February 15, 2021, in which she expressed her disagreement with the proposal to reduce wages, and also asked for the return of the work equipment seized from her.

By the decision of the court No. 2 of Aktau, Mangystau region, dated July 15, 2021, the claim was dismissed.

By the decision of the judicial board for civil cases of the Mangystau Regional Court dated November 16, 2021, the decision was overturned and a new decision was made to satisfy the claim.

In accordance with paragraph 11 of the NP, the Labor Code restricts the right of an employer to terminate or terminate an employment contract during the period of temporary disability of an employee on only two grounds, namely: termination of an employment contract if the employee refuses to continue the employment relationship (Article 58 of the Labor Code) and termination of an employment contract on the initiative of the employer on the grounds provided for in article 52, except for with the exception of the cases provided for in subparagraphs 1), 18), 20) and 23) of paragraph 1 of Article 52 of the Labor Code.

Article 126-1 of the Labor Code contains guarantees for women with a pregnancy period of up to twelve weeks, which establishes that pregnant women retain their place of work (position) and average salary for up to twelve weeks of pregnancy, as well as other guarantees in accordance with legislation in the field of healthcare.

In satisfying D.'s claim, the court of appeal legitimately assumed that at the time of issuing the order to terminate the employment contract at the initiative of the employer, the plaintiff was pregnant for a period of 14-15 weeks.

The courts' attention should be focused on the fact that the labor legislation of the Republic of Kazakhstan restricts the issuance of an order to terminate an employment contract on certain grounds of Article 52 of the Labor Code with pregnant women, regardless of the duration of pregnancy, but does not prohibit the delivery of a notice of impending termination of an employment contract, which provides an opportunity for pregnant women to inform the employer during the notice period. about her pregnancy with the presentation of a medical report. The financial documentation provided by the defendant's representative and information about the reduction in the volume of gas supply for turnover do not prove the validity of the salary reduction to the specified limit and the validity of the notification of termination of the employment contract at the initiative of the employer. By issuing an illegal order, the employer violated the rights of the plaintiff, who was pregnant, and who was subject to protection by reinstating her at work in her previous position.

During the consideration of the case by the court, it was established that on December 24, 2020, D.'s employer sent a notice of termination of the employment contract on the basis of subparagraph 2) of paragraph 1 of Article 52 of the Labor Code due to a reduction in the number or staff of employees. However, the plaintiff was warned that in case of a written refusal to agree to continue work on new terms by February 11, 2021, the employment contract with her would be terminated on the basis of subparagraph 2) of paragraph 1 of Article 58 of the Labor Code. Courts should distinguish between termination of an employment contract on the initiative of an employer on the grounds provided for in subitems 2) and 3) of paragraph 1 of Article 52 of the Labor Code and termination of an employment contract under subitem 2) of paragraph 1 of Article 58 of the Labor Code. Upon termination of an employment contract at the initiative of the employer on the grounds provided for in subitems 2) and 3) of paragraph 1 of Article 52 of the Labor Code, the procedure provided for in Article 53 of the Labor Code will apply with compensation for unused days of paid annual leave (paragraph 2 of Article 96 of the Labor Code), as well as compensation payments in connection with the loss of work in the amount of the average monthly salary (subitem 2) of paragraph 1 and paragraph 2 of Article 131 of the Labor Code). Upon termination of an employment contract on the above grounds, the restrictions provided for in article 54 of the Labor Code apply, i.e. termination of an employment contract with pregnant women is not allowed, regardless of the duration of pregnancy.

The employer upon termination of the employment contract on the grounds provided for in subparagraph 2) paragraph 1 of Article 52 of the Labor Code is obliged to notify the employee of the termination of the employment contract at least one month in advance, unless a longer notice period is provided for in the labor or collective agreements. With the written consent of the employee, the termination of the employment contract may be carried out before the expiration of the notice period. At the same time, the grounds for termination of the contract do not change, and upon termination, it is necessary to take into account the restrictions set out in article 54 of the Labor Code, which do not apply to the grounds for termination of the employment contract under article 58 of the Labor Code.

When considering a case, the court should pay attention to the reasons that served as the basis for handing over the notification to the employee. If the employer reduces the amount of work, without actually reducing the position, but entailing appropriate additions and changes to the employment contract for the employee, then this should be considered as a change in working conditions in accordance with the procedure prescribed by Article 46 of the Labor Code, with notification no later than fifteen calendar days in advance, unless labor or collective agreements provide for more than long notice period. Upon termination of an employment contract under subparagraph 2) of paragraph 1 of Article 58 of the Labor Code, the procedure provided for in Article 46 of the Labor Code shall apply with the restrictions provided for in paragraph 3 of Article 58 of the Labor Code. Termination of an employment contract on the grounds specified in paragraph 1 of Article 58 of the Labor Code is not allowed during the period of temporary disability of an employee (including for pregnancy and childbirth) and vacation.

Compliance with the pre-trial dispute settlement procedure

The practice of applying the requirements of Article 159 of the Labor Code

Article 148 of the CPC contains a list of requirements for the form and content of the claim. According to Part 6 of paragraph 1 of Article 148 of the CPC, the application must contain information on compliance with the pre-trial procedure for contacting the defendant, if this is established by law or provided for by contract.

In accordance with paragraph 1 of Article 159 of the Labor Code, individual labor disputes are considered by conciliation commissions, with the exception of disputes arising between an employer and an employee of a microenterprise entity, a non-profit organization with no more than fifteen employees, a domestic worker, the sole executive body of a legal entity, the head of the executive body of a legal entity, as well as other members of the collegial executive body. a legal entity, and for unresolved issues or non–fulfillment of the decision of the conciliation commission - by the courts. 

with the exception of disputes arising between an employer and an employee of a microenterprise entity, a non–profit organization with no more than fifteen employees, a domestic worker, the sole executive body of a legal entity, the head of the executive body of a legal entity, as well as other members of the collegial executive body of a legal entity, and on unresolved issues or non-compliance with the decision of the conciliation commission - by the courts.

That is, in disputes arising between an employer and an employee of a microenterprise entity, a non-profit organization with no more than fifteen employees, a domestic worker, the sole executive body of a legal entity, the head of the executive body of a legal entity, as well as other members of the collegial executive body of a legal entity, compliance with the preliminary consideration of the dispute in the conciliation commission is not required.

The requirement to apply to the conciliation Commission also does not apply to certain categories of employees whose work is regulated by the Labor Code of the Republic of Kazakhstan with the specifics provided for by special laws and other regulatory legal acts of the Republic of Kazakhstan, including those in military service, employees of special state and law enforcement agencies, civil servants.

Jurisdiction

In accordance with paragraph 5 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of legislation by courts in the resolution of labor disputes" dated October 6, 2017 No. 9 (hereinafter referred to as NP), claims for disputes arising from labor relations are subject to filing with the court according to the general rules of civil procedure at the location of the defendant, a legal entity the person or place of residence of the employer of the individual acting as a defendant in the dispute.

According to Part 2 of Article 29 of the CPC, a claim against a legal entity is filed in court at the location of the legal entity according to the constituent documents and (or) the address entered in the National Register of Business Identification Numbers.

When lawsuits are filed at the location of a branch or representative office in accordance with the procedure provided for in part three of Article 30 of the CPC, only legal entities may be defendants.

Questions of jurisdiction in cases of the generalized category do not cause difficulties.

Thus, by the ruling of the Ust-Kamenogorsk City Court, the civil case on the claim of Zh. The claim for recovery of damages, payment for overtime, compensation for moral damage has been transferred to the jurisdiction of the inter-district Court for Civil Cases of Astana city for consideration on the merits.

The court's ruling is correct, since it has been established that the defendant is a legal entity located and registered at the address: Astana, D.Konaeva Street, claims for disputes arising from labor relations are subject to filing with the court according to the general rules of civil procedure at the defendant's location. In addition, I consider it necessary to draw the attention of the courts to the requirements of article 19 of the Labor Code, according to which the head of a branch or representative office of a foreign legal entity exercises all rights and performs all duties of the employer on behalf of this legal entity. Consequently, an employee has the right to file a claim at the location of a branch of a foreign legal entity, having previously verified the rights of the head of the branch to represent the interests of the legal entity.

The issue of determining the jurisdiction of labor disputes in case of rehabilitation or bankruptcy of the employer.

Thus, by virtue of the provisions of Part 8 of Article 35 of the CPC, cases on disputes arising within the framework of rehabilitation and bankruptcy procedures, including the recognition of transactions concluded by the debtor or a person authorized by him, as invalid, on the return of the debtor's property, on the recovery of receivables from claims of a bankrupt or rehabilitation manager, are considered by the same judge, which have issued a decision on the application of a rehabilitation procedure or on declaring the debtor bankrupt, with the exception of dispute cases, the jurisdiction of which is established by Article 31 of the CPC.

By the ruling of the Aktobe City Court dated February 15, 2021, the claim of Zh. The LLP was returned to the LLP on the cancellation of orders on suspension from work, dismissal, reinstatement, recovery of wages for overtime, recovery of wages for forced absenteeism, recovery of penalties, moral damage on the basis of subparagraph 2 of part 1 of Article 152 of the PC due to the jurisdiction of the dispute to this court.

Returning the claim, the court pointed out that the decision of the Council of Ministers of the Aktobe region applied a rehabilitation procedure to the Partnership, and therefore, in accordance with part 8 of Article 35 of the CPC, the case is subject to consideration by the economic court.

Indeed, a rehabilitation procedure was applied to the Partnership by the decision of the Council of Ministers of the Aktobe region Court of October 14, 2016, which entered into force.

By virtue of the provisions of sub-paragraphs 5, 7 of Article 67 of the Law of the Republic of Kazakhstan "On Rehabilitation and Bankruptcy", the court in the rehabilitation procedure accepts cases on property disputes in which the debtor acts as a defendant, and also resolves disputes between participants in the rehabilitation procedure.

According to subparagraph 16) of paragraph 1 of Article 1 of the Labor Code, a labor dispute is a disagreement between an employee (employees) and an employer (employers), including those who previously had an employment relationship, on the application of labor legislation of the Republic of Kazakhstan, the fulfillment or amendment of the terms of agreements, labor and (or) collective agreements, acts of the employer.

It has been established that the dispute between the parties arises from an employment relationship, is based on the norms of labor legislation and the terms of employment contracts and is not related to the implementation of a rehabilitation procedure.

Since the court incorrectly applied the provisions of part 8 of Article 35 of the CPC, by the ruling of the judicial board of March 12, 2021, the court's ruling was canceled and the issue was referred to the court of first instance for reconsideration.

In cases where an employer is declared bankrupt or a rehabilitation procedure is applied, disputes arising from an employment relationship (about reinstatement at work, recovery of wages, etc.) are subject to consideration and resolution in courts of general jurisdiction, the provisions of Part 8 of Article 35 of the CPC do not apply to labor disputes.

State duty

According to the requirements of paragraph 7 of Article 610 of the Tax Code, a state fee is charged for non-property claims in the amount of 0.5 MCI.

Based on the requirements of paragraph 1 of Article 951 of the Civil Code, moral harm is a violation, diminution or deprivation of personal non–property benefits and rights of individuals.

According to the requirements of Article 149 of the CPC, a document confirming payment of the state fee is attached to the claim.

In accordance with subparagraph 1) of Article 616 of the Tax Code, plaintiffs are exempt from paying state duties in courts for claims for recovery of wages and other claims related to work.

In case of satisfaction of the claim, the court, in accordance with Article 117 of the CPC, is obliged to collect a state fee to the state revenue from the defendant, who is not exempt from its payment.

There are individual cases when courts, in violation of subparagraph 2) of part 1 of Article 149 of the CPC, accept claims for court proceedings without paying a state fee.

It follows from the case file that A. filed a lawsuit against the LLP to recover wages, compensation for downtime, penalties, and compensation for moral damage.

By the decision of the Zhetysu District Court of Almaty dated April 13, 2022, upheld by the decision of the Judicial Board for Civil Cases of the Almaty City Court, wage arrears, penalties, compensation for moral damage, and expenses for paying for the representative's assistance were recovered from LLP in favor of A.

The LLP is responsible for making pension contributions and other mandatory payments for the period of A.'s employment from June 22, 2021 to August 2021.

Regulatory framework

The main regulatory legal acts to be applied in the consideration of cases of the generalized category are:

The Constitution of the Republic of Kazakhstan;

The Civil Code of the Republic of Kazakhstan (General part) dated December 27, 1994;

The Civil Code of the Republic of Kazakhstan (Special Part) dated July 1, 1999 (hereinafter referred to as the Civil Code);

Civil Procedure Code of the Republic of Kazakhstan dated October 31, 2015 No. 377- V (hereinafter – CPC);

The Labor Code of the Republic of Kazakhstan dated November 23, 2015 No. 414- V SAM (hereinafter referred to as the Labor Code);

On Taxes and other mandatory payments to the Budget (Tax Code) dated December 25, 2017 No. 120-VI SAM (hereinafter – NK);

Business Code of October 29, 2015 No. 375-V SAM;

The Code of the Republic of Kazakhstan dated July 7, 2020 No. 360-VI SAM "On the health of the people and the healthcare system";

The Law of the Republic of Kazakhstan "On Trade Unions";

The Law of the Republic of Kazakhstan dated April 2, 2010 No. 261-IV "On enforcement proceedings and the status of bailiffs";

The Law of the Republic of Kazakhstan dated July 14, 1997 No. 155-I "On Notary";

The Law of the Republic of Kazakhstan dated April 22, 1998 No. 220-1 "On Limited and Additional Liability Partnerships";

The Law of the Republic of Kazakhstan dated May 13, 2003 No. 415 "On Joint-Stock Companies";

Normative resolutions of the Supreme Court of the Republic of Kazakhstan: "On certain issues of the application of legislation by courts in the resolution of labor disputes" dated October 6, 2017 No. 9; "On the application by courts of legislation on compensation for moral damage" dated November 27, 2015 No. 7; "On judicial decision in civil cases" dated July 11, 2003 No. 5; "On the application by the courts of the Republic of Kazakhstan of legislation on court costs in civil cases" dated December 25, 2006 No. 9.

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