The plaintiff violated the rules of occupational safety and fire safety, which could have serious consequences, and therefore the court dismissed the claim.

S. filed a lawsuit with the Ajip Kazakhstan North Caspian Operating Company NV (hereinafter referred to as the Company), the Kazakh branch of the Company, to declare illegal the order dated August 12, 2013 on termination of the employment contract with him, reinstatement to his former position, recovery of wages for forced absenteeism and compensation for moral damage. damage in the amount of 1,000,000 tenge. The claim was partially satisfied by the decision of the Atyrau City Court of November 25, 2013. The order of the Kazakhstan branch of the Company No. 13/0826 CF dated August 12, 2013 on the dismissal of S. was declared illegal. The plaintiff was reinstated as the operator of the sulfur extraction unit of the Production Operations Department at the onshore complex of the Kazakhstan branch of the Company. Wages for the time of forced absenteeism in the amount of 1,112,705 tenge, compensation for moral damage in the amount of 50,000 tenge, court costs were collected from the Company in favor of S.

The rest of the claim was denied. By the decisions of the appellate and cassation judicial boards, the judicial act issued in the case was left unchanged. In the petition, T.'s representative asked to cancel the judicial acts that had taken place in the case due to a significant violation of the norms of substantive and procedural law, and to make a new decision to dismiss the claim. T considered that the court had incorrectly assessed the factual circumstances of the case, and the court's conclusions that the plaintiff smoked electronic cigarettes were based only on his explanations. The response to the petition has not been provided by the plaintiff's side. After examining the case materials, the Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan overturned the judicial acts issued in the case and made a new decision to dismiss the claim on the following grounds.

As follows from the case file, S. worked as an operator of the sulfur extraction unit of the Department of Production Operations at the ground complex. By Order No. 13/ 0825 of August 12, 2013, he was dismissed for a gross violation of paragraph 9.10.1 the policies of the Ajip KKO company (Internal Regulations), fire safety rules and Safety Procedures of the Ajip KKO company, expressed in the concealment and unauthorized bringing of flammable materials into the high-risk area and subsequent smoking in the area prohibited for smoking and open fire in accordance with subparagraph 8) of paragraph 1 of Article 54, and also Articles 73 and 74 of the Labor Code (hereinafter referred to as the Labor Code).

According to subparagraph 8) of paragraph 1 of Article 54 of the Labor Code, an employment contract with an employee may be terminated at the initiative of the employer in the event of an employee's violation of labor protection or fire safety rules or traffic safety, which caused or could have caused serious consequences, including injuries and accidents. In satisfying the claims, the court took into account the plaintiff's explanations, who claimed that on August 4, 2013, at 9:30 a.m., he and employee S. smoked electronic cigarettes, not tobacco, at the air cooling unit. In addition, the court considered that the fact of smoking should have been recorded by employees of a third-party organization, for example, employees of a security company serving the Ajip KKO company, with audio and video recordings, however, the defendant's side did not provide such data. Meanwhile, these conclusions of the court do not correspond to the circumstances of the case.  Thus, from the minutes of the meeting with the participation of the plaintiff and his colleague S., who was smoking with him, it follows that they acknowledged the fact of smoking in the territory in operation, explained the circumstances of finding matches with them. Moreover, they reported that before smoking, they conducted a risk analysis in the ABO to check the likelihood of fire, and decided that this area was not dangerous for smoking. In his explanatory note dated August 6, 2013, S. admitted the fact of smoking, expressed sincere regret for what he had done, while he did not indicate that he smoked electronic cigarettes. After issuing the dismissal order, on August 19, 2013, the plaintiff filed a statement addressed to the employer, in which he also expressed regret for what had happened at the sulfur plant on August 4, 2013, admitted that he had violated the golden rules of the OPCW and asked to be reinstated in his former position, reprimanding.

Taken together, the Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan concluded that the plaintiff had not provided sufficient evidence that there had been smoking of electronic cigarettes and their safety. In accordance with subparagraph 3) paragraph 2 of Article 22 of the Labor Code, the employee is obliged to comply with the requirements for occupational safety and health, fire safety and industrial sanitation at the workplace. The above-mentioned explanatory note by the plaintiff himself, the testimony of the Company's safety and environmental manager, the fire inspector, and others, as well as the minutes of the meeting on this fact with the participation of S. confirm that the plaintiff violated the rules of occupational safety and fire safety, which could have serious consequences. When issuing the contested order, the defendant did not violate the requirements of Articles 73 and 74 of the Labor Code, and the employer's dismissal procedure was followed. 

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