Return of claims by the courts in case of non-compliance with the pre-trial dispute settlement procedure
In accordance with subparagraph 1) In Part 1 of Article 152 of the CPC, the judge returns the statement of claim if the plaintiff has not complied with the pre-trial dispute settlement procedure established by law for this category of cases or provided for by the parties' agreement and the possibility of applying this procedure has not been lost. If the statement of claim is accepted, the court, by virtue of subparagraph 1) of Article 279 of the CPC, leaves it without consideration if the plaintiff has not complied with the procedure established by law for this category of cases or the procedure provided for in the contract for the pre-trial settlement of the dispute and the possibility of applying this procedure has not been lost. An analysis of statistical data shows that in 2016, compared with 2015, the number of claims returned and left without consideration by the courts in this category of cases increased. However, it is not possible to determine the reasons for the increase in the return of claims and the abandonment of applications without consideration due to the lack of such information in the data of the statistical report. In accordance with the Labor Code, contacting the conciliation commission is a mandatory pre-trial procedure for resolving labor disputes. For the most part, in the absence of information about the pre-trial dispute settlement procedure, as well as information about the assignment of the defendant (employer) to a certain category of business entities, as well as to the heads of the executive body of the legal entity, the courts returned the statements of claim, which is correct, since the employee's application to the conciliation commission is the employee's responsibility, non-compliance with which is the basis for the return of the statement of claim.
An example of this is the case of G.'s claim to LLP for the recovery of wage arrears. By the ruling of the Pavlodar City Court, which was upheld by the ruling of the judicial board for Civil cases of the regional court, G.'s statement of claim was left without consideration due to the plaintiff's failure to comply with the pre-trial dispute settlement procedure established by law for this category of cases, as well as the fact that the possibility of applying this procedure has not been lost. At the same time, there are cases when the courts, in violation of the requirements of subparagraph 16) of paragraph 1 of Article 22 of the Labor Code, accepted and considered cases without consideration of the issue by the conciliation commission. So, plaintiff B. appealed to the court with a claim to LLP for recognition of the orders as illegal, reinstatement at work, recovery of wages for the time of forced absenteeism, compensation for moral damage and representation expenses. The plaintiff applied to the conciliation commission, but due to the absence of a conciliation commission at the enterprise, she did not receive a response. The case was considered by the court without a decision of the conciliation commission, which is incorrect. By virtue of subitems 1) of parts 1 and 2 of Article 152 of the CPC, the court should have returned the statement of claim indicating the reasons for the return, as well as explain to the plaintiff the circumstances preventing the initiation of a civil case (Mangystau region). If a party to an individual labor dispute does not agree with the decision of the conciliation commission in whole or in part, as well as in case of non-fulfillment of the decision of the conciliation commission, the dispute is considered unresolved. In this regard, the parties who disagree with the decision of the conciliation commission have the right to resolve the dispute in court. At the same time, the court is not bound by the conclusions of the conciliation commission and the dispute is resolved on its merits within the limits of the plaintiff's claims. Consideration of an individual labor dispute by a conciliation commission does not deprive a party of the right to appeal to the court. In this case, the cancellation or amendment of the decision of the conciliation commission in court is not required.
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