Termination of the powers of the head of the executive body by decision of the authorized body of the legal entity
In accordance with paragraph 23 of section 4 of the "Rules for the Appointment and certification of the head of a state-owned enterprise, as well as approval of his candidacy", approved by Order No. 70 of the Minister of National Economy of the Republic of Kazakhstan dated February 2, 2015, in state-owned enterprises under the right of economic management with the supervisory board, authorized bodies of the relevant industry must first obtain the consent of the Supervisory Board on the issue on the dismissal of the rector of the University A. He filed a lawsuit with the court, arguing that on September 16, 2003, an individual employment contract was concluded between the parties, according to which the Ministry provided A. with a job as rector of the North Kazakhstan State University named after M.Kozybayev (hereinafter – the University). By an additional agreement dated May 20, 2015, No. 20, the contract was extended until May 20, 2018. On June 14, 2016, by Order of the Minister No. 30, an employment contract was signed with A. It was terminated on June 25, 2016 on the basis of subparagraph 23) of paragraph 1 of Article 52 of the Labor Code of the Republic of Kazakhstan on termination of the powers of the head of the executive body by decision of the authorized body of the legal entity. The plaintiff does not agree with this order, considers it illegal and subject to cancellation due to violation of the dismissal procedure. Indicates that the issue of termination of the employment contract has not been agreed by the defendant with the supervisory board of the University and the primary trade union organization.
Termination of the powers of the head of the executive body by decision of the authorized body of the legal entity
By the decision of the Petropavlovsk City Court No. 2 dated August 25, 2016, A.'s claim was denied. By the decision of the Judicial Board for Civil Cases of the North Kazakhstan Regional Court dated November 2, 2016, the decision of the court of first instance remained unchanged. The Judicial Board for Civil Cases of the Supreme Court overturned the judicial acts of local courts, adopted a new decision on the satisfaction of claims in the case, the order of the Minister of Education and Science of the Republic of Kazakhstan dated June 14, 2016 No. 30 – ZHK on the termination of the employment contract with A. was declared illegal. He was reinstated in his previous job as rector of the North Kazakhstan State University named after M.Kozybayev on the following grounds. The case file established that on September 16, 2003, an individual employment contract was concluded between the parties, according to which the Ministry provided A. with a job as rector of the University. By Additional Agreement No. 20 dated May 20, 2015, the contract was extended until May 20, 2018. On June 14, 2016, by Order of the Minister of Education and Science of the Republic of Kazakhstan No. 30–ZHK, the employment contract with the plaintiff was terminated on June 25, 2016 on the basis of subparagraph 23 of paragraph 1 of Article 52 of the Labor Code of the Republic of Kazakhstan on termination of the powers of the head of the executive body by decision of the authorized body of the legal entity. The essence of the claim boils down to the question of the legality of the dismissal procedure itself. The need for prior approval of the issue of termination of the employment contract with the supervisory Board of the University and obtaining a reasoned opinion from the trade union committee of the primary organization, the regulatory justification for the obligation of these procedures are set out in detail in judicial acts, are not disputed by the parties and do not cause doubts from the judicial board. The local courts, rejecting the claim, referred to the impossibility of obtaining a preliminary agreement on the dismissal of the plaintiff with the supervisory board due to the actual absence of such a body at the time of the resolution of this issue, as well as obtaining the approval of the public association "Kazakhstan Branch Professional Union of Education and Science Workers" (hereinafter referred to as the Branch Trade Union).
These conclusions of the courts are incorrect. Thus, by articles 13, 24 of the Constitution of the Republic of Kazakhstan, everyone has the right to freedom of work and judicial protection of their rights and freedoms. The plaintiff was dismissed on June 14, 2016. The Supervisory Board at the University was introduced on November 20, 2015 by the Decree of the Government of the Republic of Kazakhstan No. 932 and was established on July 7, 2016 on the basis of the Order of the Minister of Education and Science of the Republic of Kazakhstan No. 445. In accordance with paragraph 23 of section 4 of the "Rules for the Appointment and certification of the head of a state-owned enterprise, as well as approval of his candidacy", approved by Order No. 70 of the Minister of National Economy of the Republic of Kazakhstan on February 2, 2015, "in state-owned enterprises with the right of economic management with the supervisory board, authorized bodies of the relevant industry (local executive bodies) pre-coordinate with the supervisory boards are considering the issue of termination of the contract with the head of the enterprise." The above-mentioned normative legal acts establish the obligation to obtain the prior consent of the Supervisory Board on the dismissal of the Rector of the University. The actual absence of such a body, related to the organizational problems of its creation, cannot be grounds for violating the constitutional labor rights of A. The Judicial Board notes that the supervisory board was established after 23 days from the date of the plaintiff's dismissal, which indicates that the defendant had a real opportunity to postpone the resolution of this issue and, moreover, had to do so in order to comply with the procedure established by law for dismissal. Obtaining such consent on July 22, 2016, that is, after dismissal, has no legal significance, since the law establishes the preliminarity of such consent. There was no such consent at the time of the plaintiff's dismissal. The conclusions of the courts about the consent of the primary trade union organization to dismissal are also unfounded.
Termination of the powers of the head of the executive body by decision of the authorized body of the legal entity
It follows from the certificates of the chairman of the primary trade union organization of the University that the plaintiff is a member of this particular trade union and regularly pays membership fees. The plaintiff denies his membership in the branch trade union, and this fact is confirmed by the case materials. The norms of Articles 67, 72 of the CPC provide that evidence must be reliable, the burden of proof is on the parties. The defendant did not provide the court with evidence that meets these requirements of the law, and, in particular, that the plaintiff is a member of an Industrial trade union. The defendant's position, supported by the local courts, that the plaintiff, by virtue of his official position, should be a member of the primary trade union organization under the Ministry, cannot be considered convincing. Analysis and content of correspondence between the Branch Trade Union and the Ministry showed the absence of such a primary trade union organization and the presence of employees in the official category of the plaintiff, that is, university rectors, "... outside the branch trade union movement," which in fact confirms that the plaintiff is not a member of this organization. The absence of a primary trade union organization under the Ministry is an organizational and legal omission of the defendant. Obtaining approval for the plaintiff's dismissal from a trade union organization of which he is not a member is not justified by regulatory legal acts. In such circumstances, the judicial board considered the plaintiff's claims to be justified regarding the defendant's violation of the procedure for termination of an employment contract established by law due to the lack of consent of the supervisory board and the approval of the primary trade union organization, which resulted in the annulment of judicial acts of local courts and satisfied the claim.
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