The plaintiffs' reports could not serve as grounds for dismissal on their own, since in them the plaintiffs did not notify the Department's management about the planned termination of the employment relationship within the prescribed period.

A., Zh. and D. filed a lawsuit with the Department for Combating Economic and Corruption Crimes (hereinafter referred to as the Department) to declare illegal and cancel orders No. 205 l/s dated December 4, 2012, No. 206 l/s and No. 215 l/s dated December 13, 2012 on dismissal from the financial police authorities regarding the grounds for dismissal, changing them to subparagraph 5) of paragraph 1 of Article 80 of the Law "On Law Enforcement Service" (at their own request), collecting expenses for the purchase of uniforms and compensation for moral damage of 50,000 tenge each. By court decision No. 2 of the Kazybekbiysky district of Karaganda dated July 18, 2013, which was left unchanged by the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Karaganda Regional Court dated September 19, 2013, the plaintiffs' claims for recognition as illegal and cancellation of orders were partially satisfied. The wording of the orders on dismissal from the financial police has been changed to "in accordance with subparagraph 5) of paragraph 1 of Article 80 of the Law "On Law Enforcement Service" (at their own request)." The claim for damages and compensation for moral damage was refused. By the decision of the Cassation judicial board of the Karaganda Regional Court dated November 29, 2013, the decision of the appellate instance remained unchanged. The Prosecutor General's protest argued for a change in the judicial acts that took place in the case regarding the satisfaction of the plaintiffs' claims, and raised the issue of their cancellation with a new decision to dismiss the claims.

The plaintiffs' reports could not serve as grounds for dismissal on their own, since in them the plaintiffs did not notify the Department's management about the planned termination of the employment relationship within the prescribed period.

Having examined the case materials and discussed the arguments of the protest, the Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan considered the protest to be satisfied by virtue of the following. It follows from the case file that on October 3, 2012, employees of the Department A., Zh. and D., who were part of the investigative task force for events in Atyrau region, did not appear at their workplace, voluntarily, without warning the head of the group, left their place of deployment. By Department Orders No. 205 and 206 l/s dated December 4, 2012 and No. 215 l/s dated December 13, 2012, A., Zh. and D. were dismissed from the financial police in accordance with subparagraph 12) of paragraph 1 of Article 80 of the Law "On Law Enforcement Service" (hereinafter – the Law) for gross misconduct. violation of official discipline and violation of subparagraph 9) of paragraph 5 of the Code of Honor of Civil Servants. The reason for the dismissal was the conclusions of the internal investigation dated November 20, 2012, minutes of the meeting of the disciplinary commission dated December 4, 2012 No. 11 and December 13, 2012 No. 12. On November 2, 2012, prior to the issuance of these orders, A., Zh., and D., reports were submitted to the management of the Department on their dismissal from the financial police at their own request. In resolving the labor dispute, the courts pointed out that the Department, ignoring the requirements of paragraphs 1 and 6 of Article 57 of the Labor Code (hereinafter referred to as the Labor Code) and paragraph 5 of Article 80 of the Law, unreasonably failed to terminate the employment relationship on the initiative of employees, since the expiration of the one–month notice period for voluntary dismissal occurred earlier, than bringing to disciplinary responsibility.

The Department had the right to dismiss the plaintiffs in a disciplinary manner before the expiration of the notice period at their own request. These conclusions of the courts are erroneous. According to paragraph 1 of article 2 of the aforementioned Law, the legal basis for law enforcement service is the Constitution, the Labor Code with the specifics provided for by this Law, as well as laws and other regulatory legal acts regulating the activities of law enforcement agencies. In accordance with paragraph 1 of Article 4 of this Law, service in law enforcement agencies is carried out in accordance with the principles of public service in the Republic of Kazakhstan. By virtue of paragraph 1 of Article 28 of the Law "On Civil Service", a civil servant who has committed a disciplinary offense cannot be dismissed from the authorities at his own request without applying disciplinary measures. Otherwise, the head of the relevant law enforcement agency is responsible. The courts concluded that when assessing the disputed orders, the employment relations of the plaintiffs are not covered by legislation on public service. However, these conclusions of the courts contradict the norms of the current legislation. Article 13 of the Law "On Financial Police Bodies" regulates that the labor relations of employees of financial police bodies are regulated by the Labor Code with the specifics provided for by the Law "On Law Enforcement Service", and the labor relations of other employees of this body are regulated by the Labor Code, legislation on civil service. At the same time, it cannot be assumed that the requirements of paragraph 1 of Article 28 of the Law "On Civil Service" do not apply to Department officials.

As can be seen from the case file, the plaintiffs A., Zh. and D. are government employees. Contrary to the requirements of the above-mentioned law, the courts did not apply to the dispute the provision of the law obliging the defendant to dismiss the plaintiffs on negative grounds and excluding the possibility of termination of employment relations on the initiative of employees. The absence in article 13 of the Law "On Financial Police Bodies" of a reference to the possibility of regulating the employment relations of financial police officers by legislation on civil service does not prevent the application of paragraph 1 of Article 28 of the Law "On Civil Service". Thus, the employer had every reason to bring the plaintiffs to disciplinary responsibility in the form of dismissal. According to article 257 of the Labor Code, the application of the Code to the labor relations of law enforcement officers is carried out with the specifics provided for by Law and other regulatory legal acts that establish special conditions and procedures for admission to service, its passage and termination.

In accordance with paragraphs 1 and 6 of Article 57 of the Labor Code, referred to by the courts, an employee has the right to terminate an employment contract on his own initiative, notifying the employer one month in advance. After this period, the employee has the right to stop working, and the employer is obliged to provide him with documents related to his work and the payments due. In subparagraph 5) of paragraph 15 of the Normative Resolution of the Supreme Court of December 19, 2003 No. 9 "On certain issues of the application of legislation by courts in the resolution of labor disputes", it is explained that for violation of labor discipline, the employer has the right to apply disciplinary action to an employee even when, prior to committing this offense, he filed an application for termination of the employment contract on his own In this case, the employment relationship is terminated only after the expiration of a one-month notice period. Based on the legal norms outlined, the courts indicated that the defendant was obliged to resolve the issue of dismissing the plaintiffs on negative grounds before December 3, 2012 inclusive, that is, before the expiration of a one-month period from the date on which the plaintiffs submitted reports on their own dismissal. At the same time, the defendant, in issuing the orders appealed by the plaintiffs, proceeded from paragraph 11 of article 57 of the Law, according to which, in cases of an internal investigation, disciplinary punishment is imposed no later than one month from the date of the end of the investigation.  The internal investigation, which confirmed the plaintiffs' gross violation of official discipline, the results of which have not been appealed or refuted, was completed on November 20, 2012, and penalties in the form of dismissal were imposed on the plaintiffs on December 4 and 13, 2012, that is, within the time limit prescribed by law. In this regard, the Department has implemented the right granted to it by a special law in labor relations with the plaintiffs, which complies with the requirements of Article 257 of the Labor Code. There are no contradictions between the provisions of Article 257 of the Labor Code and paragraph 11 of Article 57 of the Law, allowing the application of a higher-level regulatory act. It can be seen from the case file that the plaintiffs in their reports dated November 2, 2012, asked to be dismissed of their own accord on November 2, 2012. However, these reports do not comply with the requirements of paragraph 5 of Article 81 of the Law, according to which employees who resign from service voluntarily notify their immediate supervisor of their decision no later than one month before the planned day of dismissal, and submit a written report. Based on this rule, the plaintiffs' reports could not serve as grounds for voluntary dismissal, since in them the plaintiffs did not notify the Department's management about the planned termination of the employment relationship within the prescribed period.

In these circumstances, the supervisory judicial board of the Supreme Court of the Republic of Kazakhstan considers justified the arguments given in the protest that the courts violated the norms of substantive law, incorrectly defined and clarified the range of circumstances relevant to the case. Incorrect application of the law by courts of lower instances in accordance with article 387, subparagraph 4) The first part of Article 364, Article 365 of the CPC was the basis for changing the procedure for judicial supervision of the contested judicial acts. Judicial acts regarding the satisfaction of the plaintiffs' claims for recognition as illegal and cancellation of orders have been canceled, and a new decision has been taken in the case to dismiss the claim in this part. The rest of the contested judicial acts remain unchanged. 

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