The average salary for the entire time of forced absenteeism, only if the dismissed person is reinstated at his previous job.
By the decision of the Yenbekshikazakh district Court of the Almaty region, the claim of S.I.A., I.P.Sh. was partially satisfied. It was decided to collect from LLP "Yu." (hereinafter referred to as LLP) in favor of S.I.A. the salary for the time of forced absenteeism 380 556 tenge, moral damage 50,000 tenge, in favor of I.P.Sh. the salary for the time of forced absenteeism 446343 tenge, moral damage 50,000 tenge.
On appeal, the court's decision was changed due to the incorrect application of substantive law and the inconsistency of the court's conclusions with the factual circumstances of the case.
On March 2, 2015, the LLP branch and I.P.Sh. signed an employment contract No. 31, according to which I.P.Sh. was hired by the LLP branch as a machinist operator with a three-month probation period. The term of the employment contract is defined until 2.03.2016. On March 9, 2015, the LLP branch and S.I.A. signed an employment contract No. 60, according to which the latter was hired as a driver with a three-month probation period. The term of the employment contract is defined until 9.03.2016. By Order of the director of the LLP branch dated October 10, 2015, No. I.P.Sh. and S.I.A. were dismissed from their jobs on October 10, 2015, according to their applications and the parties' agreement to terminate the employment contract without prior notice in accordance with paragraph 1 of Article 57 of the Labor Code (in the old version.
From the contents of the handwritten receipts issued by the plaintiffs on October 13, 2015, it follows that the plaintiffs were dismissed at their own request, received a settlement and all due compensation in full, and have no claims against the employer.
On February 12, 2016, the LLP branch received a complaint from a representative of the plaintiffs, who asked that the dismissal be considered illegal and that the plaintiffs be reinstated at their previous jobs, since they had submitted their resignation under psychological pressure from the administration.
The Court of first instance, partially satisfying the claim, motivated the conclusions by the fact that the term of the employment contracts had expired and therefore they could not be reinstated in their previous position.
The judicial Board recognized this conclusion of the court as justified and the defendant does not dispute it in the appeal.
In satisfying the claims for recovery of wages for the time of forced absenteeism and recovery of moral damage, the court of first instance proceeded from the fact that the dismissal was illegal, since it was carried out in the absence of workers' initiative and expression of will, in fact, under psychological pressure from the management, who threatened that they would not be paid their wages.
The Board pointed out that the arguments in the defendant's complaint that there was an industrial conflict between the employer and the employees, which prevented normal work, and in this regard, the parties mutually decided to terminate the contract without prior notice, deserve attention. In the case file, there are personally executed by the plaintiffs and submitted an application for dismissal from work at their own request.
The plaintiffs did not comply with the requirements of Article 72 of the CPC and did not provide evidence to substantiate arguments about illegal psychological or other coercion by their employer to write and submit the above-mentioned applications and receipts.
The court of first instance, in refusing to reinstate the plaintiffs to their former positions, did not take into account the requirements of paragraph 1 of Article 161 of the Labor Code (in the old version, paragraph 2 of Article 177), which states that the employee is paid the average salary for the entire time of forced absenteeism, only in cases of reinstatement at his previous job.
In this connection, the judicial board overturned the decision in the satisfied part with the issuance of a new decision to dismiss the claim.
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