Termination of an employment contract with an employee at the initiative of the employer in case of refusal to undergo a medical examination

Grounds for termination of an employment contract with an employee at the initiative of the employer if he is at work in a state of alcoholic, narcotic, psychotropic, or substance abuse intoxication (their analogues), including in cases of use during the working day of substances causing alcohol, narcotic, or substance abuse intoxication (their analogues), as well as in case of refusal from undergoing a medical examination to establish the fact of using substances that cause a state of alcoholic, narcotic, or substance abuse intoxication (sub-paragraphs 9), 10) part 1 of Article 52 of the Labor Code)

According to sub-paragraphs 9), 10) of paragraph 1 of Article 52 of the Labor Code, an employment contract with an employee may be terminated at the initiative of the employer in the following cases::

finding an employee at work in a state of alcoholic, narcotic, psychotropic, or substance abuse intoxication (their analogues), including in cases of use during the working day of substances that cause alcohol, narcotic, or substance abuse intoxication (their analogues);

refusal to undergo a medical examination to establish the fact of using substances that cause a state of alcoholic, narcotic, or substance abuse intoxication;

In accordance with paragraph 21 of the NP, at the initiative of the employer (subitems 9) and 10) of paragraph 1 of Article 52 of the Labor Code), an employment contract may be terminated if the employee is at work in a state of alcoholic, narcotic, psychotropic, or substance abuse intoxication (their analogues), including in cases of use of substances during the working day., causing a state of alcoholic, narcotic, or substance abuse intoxication (their analogues).

For termination of an employment contract on these grounds, it does not matter whether the employee was suspended from work due to such a condition. Termination of an employment contract on these grounds may also occur when an employee was in such a state during working hours or used these substances not at his workplace, but on the territory of an organization or facility where, on behalf of the employer, he was supposed to perform a labor function. The employee's intoxication or drug intoxication or other type of intoxication must be confirmed by a medical report. A medical examination to establish the use of a psychoactive substance and intoxication (hereinafter referred to as a medical examination) is an outpatient examination of a person in order to establish the state of narcotic, alcoholic intoxication and intoxication from other psychoactive substances.

The decision to send an employee for a medical examination is made by the employer's representative. In accordance with subparagraph 40) paragraph 1 of Article 1 of the Labor Code, employer representatives are individuals and (or) legal entities authorized on the basis of constituent documents and (or) a power of attorney to represent the interests of the employer.

In accordance with paragraph 3 of the Order of the Minister of Health of the Republic of Kazakhstan dated November 25, 2020 "Rules for conducting a medical examination to establish the use of a psychoactive substance and intoxication", referral for a medical examination to establish the use of a psychoactive substance and intoxication is carried out in accordance with the Rules for referral for intoxication examination, intoxication examination and registration his results, approved by the Resolution of the Government of the Republic of Kazakhstan dated June 4, 2003 No. 528.

If an employee refuses to undergo a medical examination, an appropriate act is drawn up, which is the basis for termination of the employment contract in accordance with subparagraph 10) of paragraph 1 of Article 52 of the Labor Code. According to subparagraph 7-1 of Article 53 of the Labor Code, termination of an employment contract on the grounds provided for in subparagraph 10) of paragraph 1 of Article 52 of the Labor Code must be confirmed by an act on the employee's refusal to undergo a medical examination.

According to paragraph 4 of the Rules for conducting a medical examination to establish the use of a psychoactive substance and intoxication, approved by the order of the Minister of Health of the Republic of Kazakhstan dated November 25, 2020, medical examinations are conducted in state medical organizations.

Plaintiffs K. and Zh. worked at the LLP from 2011 and 2012.

By orders dated December 13, 2021 for No. 279 l/s, No. 278 l/s, the employment contracts with K. and J. were terminated on the basis of subparagraph 9) of paragraph 1 of Article 52 of the Labor Code.

The basis for the termination of the employment contract was the fact that the plaintiffs consumed alcoholic beverages, established by the act and the conclusion of the medical care worker of the LLP.

Having disagreed with the dismissal, the plaintiffs appealed to the court with a claim for declaring illegal dismissal orders and collecting wages for the time of forced absenteeism.

The decision of the Aktobe City Court of May 13, 2022, upheld by the decision of the judicial board of the Aktobe Regional Court of July 13, 2022, denied the claim.

The courts motivated the refusal to satisfy the claim by pointing out that K. and Zh., carrying out their work on a shift basis, in violation of the internal labor regulations established by the employer, admitted the fact of drinking alcoholic beverages. The examination was conducted on the territory of the shift camp by a contractor providing medical services for the LLP under an agreement concluded between the LLP and the medical center. Under this agreement, among other medical services, there is also a drug control service conducted by a medical professional who has specialized in a drug treatment center and has a supporting certificate. The examination was conducted by a medical professional of the Medical Center who has the appropriate specialization and certificate for conducting such a study. In this regard, the termination of employment contracts with them on the initiative of the employer on the above grounds is recognized as legitimate.

Indeed, according to paragraph 4 of the Rules No. KR DSM-203/2020, to which the plaintiffs refer, medical examinations are carried out in state medical organizations.

At the same time, in accordance with Order No. KR DSM-131/2020 dated October 15, 2020 (On approval of target groups of persons subject to mandatory medical examinations, as well as the rules and frequency of their conduct, the scope of laboratory and functional studies, medical contraindications, a list of harmful and (or) dangerous industrial factors, professions and jobs, during which preliminary mandatory medical examinations are carried out upon admission to work and periodic mandatory medical examinations and rules for the provision of public services "Passing preliminary mandatory medical examinations") to establish or confirm the presence of signs of alcohol consumption, narcotic, psychoactive substances or residual effects of such use, medical examinations are possible not only in state institutions. medical organizations.

In addition, the courts took into account that during the medical examination of J. and K., a technical measuring instrument was used that was officially registered in Kazakhstan and passed metrological verification on October 2, 2021.

The employer's failure to take measures to bring J. and K. to a state medical organization was not recognized as excluding the fact that they consumed alcoholic beverages due to the results of the alcohol test and the failure to provide evidence refuting them.

In another case, the courts granted the claim.

M. filed a lawsuit against the LLP for reinstatement at work and recovery of the average salary for the time of forced absenteeism.

By an order dated October 19, 2021, the employment contract with M. was terminated on the basis of subparagraph 10) of paragraph 1 of Article 52 of the Labor Code.

The plaintiff asked to cancel the order, indicating that he was on watch on September 1, 2021. On the specified date, a security officer recorded the fact that the plaintiff was suspected of being intoxicated. At 23:46 hours, the plaintiff was asked to undergo an examination to check the presence or absence of alcohol intoxication. According to the examination report, the alcohol content in the plaintiff's blood was found to be 0.45 mg/L, which the plaintiff agreed with. Subsequently, the plaintiff was given a referral for an initial medical examination, which M. refused, and an employee's certificate of refusal was drawn up, which the employee also signed.

By the decision of the district court No. 2 of the Kazybekbi district of Karaganda city dated April 21, 2021, M.'s claim was denied.

In rejecting M.'s claim, the court of first instance proceeded from the evidence of the plaintiff's refusal to undergo a medical examination, which is a legitimate reason for his dismissal.

By a decision of the judicial board for Civil Cases of the Karaganda Regional Court dated June 29, 2022, the decision of the court of first instance was overturned, and a new decision was made to satisfy the claim in the case.

By overturning the decision of the court of first instance and adopting a new decision on the case, the judicial board concluded that the employment contract with the plaintiff had been terminated without legal grounds, since there were no grounds for sending the plaintiff for a medical examination. The board motivated its conclusions as follows:

In the period from September 1 to September 3, 2021, M. had a work schedule No. 19 from 08.00 to 20.00 hours without performing work at night.

In accordance with the provisions of article 135 of the Labor Code, the shift method is a special form of carrying out the labor process outside the place of permanent residence of employees, when their daily return to their permanent place of residence cannot be ensured.

The employer determines the procedure for applying the shift method of work, and also provides the necessary conditions for the employee to stay at the work facility and in places specially equipped for living (shift settlements), in accordance with labor, collective agreements and (or) regulations on the shift method of work approved by the employer.

The employee is obliged, while on duty, to observe the schedule established by the employer at the work facility and in places specially equipped for living (shift settlements). A shift is considered to be a period that includes the time of work at the facility and the time between shifts of rest. With the shift method of work, a cumulative accounting of working hours is established for a quarter or other longer period, but not more than one calendar year, or the period of performance of a certain work.

Working hours and rest periods within the accounting period are approved by the shift schedule. The accounting period covers working hours, rest time, travel time from the employer's location or from the collection point to the place of work and back, as well as other periods falling within a given calendar period. At the same time, the total working time for the accounting period should not exceed the norm established by the Labor Code. The employer is obliged to keep records of the working hours and rest time of each employee working in shifts.

Travel time from the employer's location or from the pick-up point to the place of work and back is not included in working hours.

It follows that the period of inter-shift rest during the employee's shift and residence on the employer's territory does not apply to working hours, during which the employer has the right to impose disciplinary action on the employee in the form of dismissal for refusing a medical examination.

It follows from the explanation of paragraph 21 of the NP that, at the initiative of the employer (subitems 9) and 10) of paragraph 1 of Article 52 of the Labor Code), the employment contract may be terminated if the employee is at work in a state of alcoholic, narcotic, psychotropic, or substance abuse intoxication (their analogues), including in cases of use during the working day list of substances that cause alcohol, narcotic, or substance abuse intoxication (their analogues). For termination of an employment contract on these grounds, it does not matter whether the employee was suspended from work due to such a condition.

Termination of an employment contract on these grounds may also occur when an employee was in such a state during working hours or used these substances not at his workplace, but on the territory of an organization or facility where, on behalf of the employer, he was supposed to perform a labor function. The employee's intoxication or drug intoxication or other type of intoxication must be confirmed by a medical report.

The decision to send an employee for a medical examination is made by a person authorized by the employer.

If an employee refuses to undergo a medical examination, an appropriate act is drawn up, which is the basis for termination of the employment contract in accordance with subparagraph 10) of paragraph 1 of Article 52 of the Labor Code.

The above rule of law applies to cases when an employee is at his workplace during working hours, or on the territory of an organization or facility where, on behalf of the employer, the employee performs labor functions, drunk or drugged. And to check this condition, it is the employer who decides to send the employee for a medical examination.

Having analyzed the materials of judicial practice in terms of challenging cases of employees being intoxicated with alcohol, drugs, psychotropic substances, and substance abuse (their analogues) while on shift duty, courts are required to take into account the specifics of shift work. According to paragraph 4 of Article 135 of the Labor Code, a shift is a period that includes the time of work at the facility and the time between shifts of rest. Inter-shift rest is one of their forms of recreation, since a shift is considered not only the time of work at the facility, but also the time of inter-shift rest, which does not relate to working hours. However, taking into account the provisions of paragraph 2 of Article 135 of the Labor Code, the employer determines the procedure for applying the shift method of work, and also provides the necessary conditions for the employee to stay at the work facility and in places specially equipped for living (shift settlements), in accordance with the regulations on the shift method of work approved by the employer, which is an act of the employer.

After familiarization with the regulations on the shift method of work, the employee is obliged, while on duty, to observe the schedule established by the employer at the work facility and in places specially equipped for living (shift settlements). Consequently, in the regulation on the shift method of work, the employer, taking into account the massive concentration of employees in a separate area during their shift, has the right to prohibit the use of psychoactive substances not only during working hours, but also during the period when employees are on inter-shift rest in order to ensure the safety of employees.

According to the Rules for conducting a medical examination to establish the use of a psychoactive substance and intoxication, approved by the Order of the Minister of Health of the Republic of Kazakhstan dated November 25, 2020, psychoactive substances are substances of synthetic or natural origin (alcohol, narcotic drugs, psychotropic substances, their analogues, other intoxicating substances) that, when taken once, have an effect on mental and physical functions, human behavior, and prolonged use cause mental and physical dependence.

Revealing the fact that an employee is intoxicated with alcohol or drugs during an inter-shift rest period is not grounds for termination of an employment contract at the initiative of the employer in accordance with subitems 9) and 10) of paragraph 1 of Article 52 of the Labor Code. However, it is grounds for disciplinary liability in the form of a remark, reprimand, severe reprimand for improper execution of the employer's act due to violation of the requirements and restrictions established by the employer, admission of the fact of drinking and being intoxicated by alcohol or drugs during the inter-shift rest period.

According to paragraph 7 of Article 53 of the Labor Code, disciplinary liability of an employee is possible only if there is a medical report, which must be carried out in state medical organizations when referring for a medical examination. The decision to send an employee for a medical examination is made by the employer's representative.

The procedure for conducting a medical examination is regulated by the Rules for conducting a medical examination to establish the use of a psychoactive substance and intoxication, approved by the order of the Minister of Health of the Republic of Kazakhstan dated November 25, 2020.

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.

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 the 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, the state duty is levied on 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, with LLP in favor of A. wage arrears, penalties, compensation for moral damage, and expenses related to the representative's assistance have been collected.

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);

The 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.

Attention!  

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases