Termination of the employment contract at the initiative of the employer in case the employee reaches retirement age
The Ust-Kamenogorsk City Court considered the claim of R.R.Zh. to the State Institution "Health Management" for reinstatement at work and recovery of wages for the time of forced absenteeism, justified by the fact that by Order No. 100-l dated April 18, 2011, she was appointed to the post of director of a Municipal state Enterprise on the right of economic management (hereinafter KGP on PCV) "Mother and Child Center" of the Health Department of the East Kazakhstan Regional Akimat. By Order No. 81-l dated April 11, 2016, the employment contract with her was terminated on the basis of subparagraph 24 of paragraph 1 of Article 52 of the Labor Code. Challenging the order, she pointed out that in accordance with subparagraph 5 of paragraph 1 of Article 149 of the Law "On State Property", subparagraph 5 of paragraph 7 of the Regulation on the Supervisory Board of the KGP at the Mother and Child Center, the supervisory board of a state-owned enterprise coordinates the proposals of the authorized body of the relevant industry (local executive body) on the appointment of the head of a state-owned enterprise on the right of economic management and termination of an employment contract with him. However, the Health Department did not apply to the Supervisory Board for approval of the termination of the employment contract with her. After the termination of the employment contract, on April 12, 2016, the Supervisory Board unanimously decided not to give consent to the termination of the employment contract. According to paragraph 5 of Article 30 of the Labor Code, an employee who has reached retirement age in accordance with subparagraph 1 of Article 11 of the Law "On Pension Provision in the Republic of Kazakhstan" and has a high professional and qualification level, taking into account his working capacity, may have an employment contract extended annually without the restrictions provided for in Part 4 of subparagraph 2 of paragraph 1 of this article.. The plaintiff believes that her high professional and qualification level as a supervisor is evidenced by the fact that the medical institution under her leadership won the title of "The Best medical institution in the East Kazakhstan region in 2015, and was accredited in 2015 for a period of three years with the highest category. By Order of the East Kazakhstan Region Health Department No. 141 dated February 23, 2016, she was certified for her position and has the highest qualification category in pediatric surgery. In 2013, she was recognized as the best healthcare manager in the Republic of Kazakhstan." Considers that under such conditions, there are sufficient grounds for extending the term of the employment contract with her on the basis of paragraph 5 of Article 30 of the Labor Code. In addition, the termination of the employment contract was carried out in violation of paragraph 9 of Article 53 of the Labor Code, without mandatory notification, with payment of compensation in the amount determined by the labor collective agreements and (or) the act of the employer.
The court's decision denied the claim.
The court found that on March 04, 2016, the KGP's e-mail address at the Mother and Child Center received a message about the impending termination of the employment contract with R.R.Zh. in connection with reaching retirement age. After that, she was invited by phone to the General Directorate of the East Kazakhstan Region Health Department to appear on March 5, 2016 to sign the notification. However, R.R.J. reported that due to the celebrations on the occasion of the holidays, she could not arrive on March 05, 2016 and would appear on March 09, 2016. On March 9, 2016, R.R.J. She refused to review the notification. Due to the refusal to review the notice of the upcoming termination of the employment contract, the relevant act No. 1 dated March 09, 2016 was drawn up.
In accordance with subparagraph 24 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 cases when the employee reaches the retirement age established by paragraph 1 of Article 11 of the Law "On Pension Provision in the Republic of Kazakhstan" with the right to extend the term of the employment contract annually by mutual agreement of the parties.
In accordance with paragraph 9 of Article 53 of the Labor Code, termination of an employment contract on the grounds provided for in subparagraph 24 of paragraph 1 of Article 52 of this Code is permitted upon reaching the retirement age established by paragraph 1 of Article 11 of the Law of the Republic of Kazakhstan "On Pension Provision in the Republic of Kazakhstan, with notification of the employee at least one month before the date of termination of the employment contract. a contract with the payment of compensation in the amount determined by the employment, collective agreements and (or) the act of the employer.
Since the plaintiff's employer is the State Department of Healthcare of East Kazakhstan Region, Rakhimova R.J. On April 29, 2016, appealed to the conciliation commission with a request to declare the order illegal.
The plaintiff was denied satisfaction of her appeal. The refusal was motivated by the fact that, in accordance with article 159 of the Labor Code, individual labor disputes are considered by conciliation commissions, and on unresolved issues or failure to comply with the decision of the conciliation commission – by the courts, with the exception of small businesses and heads of the executive body of a legal entity. In this regard, labor disputes are not considered by the conciliation commissions with the heads of the executive body of the legal entity.
In accordance with paragraphs 1,4 of art. 140 of the Labor Code the conclusion of an employment contract, the procedure and conditions of remuneration, disciplinary proceedings, and dismissal of the head of the executive body is carried out in accordance with this Code, other regulatory legal acts of the Republic of Kazakhstan, documents approved by the founders, the owner of the property of a legal entity or a person (body) authorized by the founders, the owner, or the authorized body of the legal entity. the provisions on separate structural divisions of the legal entity and the employment contract.
The act of the employer on the acceptance and termination of the employment contract is signed by a person authorized to do so by the decision of the founders, the owner of the property of the legal entity or authorized by the founders, the owner of the person (body) or the authorized body of the legal entity or documents approved by them.
In accordance with subparagraph 5 of paragraph 1 of Article 149 of the Law "On State Property", the supervisory board of a state-owned enterprise with the right of economic management has, among other things, the authority to coordinate the proposal of the authorized body of the relevant industry (local executive body) on the appointment of the head of a state-owned enterprise with the right of economic management and the termination of an employment contract with him.
Both the Labor Code and the Law "On State Property" do not provide for the obligation of the employer to comply with the approval of termination of employment with persons who have reached retirement age.
Thus, the procedure provided for by law for prior notification of an employee who has reached retirement age about the upcoming termination of an employment contract with the plaintiff has been observed.
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