Termination of an employment contract for the commission of culpable actions of an employee
For this reason, an employment contract can be terminated only with a limited number of employees, namely those who directly serve their reception, storage, transportation, distribution, etc., without necessarily referring to persons who bear full financial responsibility for the monetary or commodity values entrusted to them on the basis of the relevant contract.
The following case is of interest.
The plaintiff, R. R.A., filed a lawsuit and declared the order to terminate the employment contract illegal, reinstating him at work, arguing that he worked as the head of the Personal Service Center No. 47 (hereinafter referred to as the CPO). Pavlodar branch of Tsesnabank JSC. On December 14, 2015, he was dismissed on the basis of subparagraph 10 of Article 54 of the Labor Code (2007) due to loss of trust on the part of the employer. He considered his dismissal illegal, since his official duties were not related to the direct maintenance of monetary or commodity valuables. The court's decision dismissed the claim.
The Court of First instance motivated the decision by the fact that the plaintiff's actions violated the provisions of the Internal Control Policy (Rules) in order to counteract the Legalization (Laundering) of Proceeds from Crime and the financing of terrorism at Tsesnabank JSC, approved by the Protocol of the Board of Directors of Tsesnabank JSC dated April 15, 2015 No. 15/04/15-01. The fragmentation of money transfers and the concealment of the identity of the actual sender of the money give grounds to classify these transactions as suspicious.
In resolving the dispute, the court correctly assumed that the plaintiff was an employee who directly serviced monetary assets, and therefore he could be dismissed from his job on the basis of subparagraph 10 of Article 54 of the Labor Code.
The arguments of the plaintiff's complaint that he, as the head of the CPO, did not directly service material assets, and therefore was not the subject of dismissal on this basis, were declared untenable by the court of appeal.
The plaintiff's actions violated the provisions of the Internal Control Policy (Rules) for Countering the Legalization (Laundering) of Proceeds from Crime and the Financing of Terrorism at Tsesnabank JSC, approved by the Protocol of the Board of Directors of Tsesnabank JSC dated April 15, 2015 No. 15/04/15-01, the Policy on Countering Internal Fraud, the Rules for Maintaining Cash Registers. transactions, the procedure for making transfers of deposits of individuals, without opening a bank account using the Unistream system, The procedure for using powers of attorney when making transactions on bank accounts and other transactions, the Procedure for opening, maintaining and closing savings accounts of individuals, namely: splitting money transfers using the Unistream payment system, concealing the identity of the actual sender of money, replacing senders' signatures, exchanging foreign currency in cash, disposing of bank accounts of third parties – clients of the bank without legal grounds, forcing subordinates to commit such acts in the period from September 1 to September 30, 2015.
In accordance with the job description of the head of the Central Bank No. 47, approved on April 17, 2015, his main functions are to carry out his activities in accordance with the legislation of the Republic of Kazakhstan, the Charter, internal rules, procedures governing the bank's operations, as well as other internal documents of the bank, monitoring the timely and high-quality performance of the duties of Central Bank specialists, due diligence (identification) of the client in accordance with the Rules of Internal Control in order to counteract the legalization (laundering) of income, criminally obtained funds and financing of terrorism in Tsesnabank JSC, organization of an effective process of cash transactions that meet the requirements of the National Bank of the Republic of Kazakhstan, monitoring the observance of cash discipline by employees.
The Judicial Board stated in its ruling that all of the above-mentioned local regulations indicate that services were provided to the bank's customers without proper registration and violation of the rules of their service, which refers to actions that lead to loss of employers' trust in the employee, as they damage his activities and create conditions for internal fraud.
The arguments of the complaint about the employer's omission of the deadline for imposing disciplinary punishment provided for in paragraph 1 of Article 74 of the Labor Code have not been confirmed. In the periods from November 19 to November 30, from December 2 to December 8, and from December 9 to December 12, 2015, R.R.A. was on leave without pay, which follows from his statements and orders from the employer, who does not have the right to issue an order to impose disciplinary action while the employee is on vacation.
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