Early Termination of the Employment Contract at the Employee’s Initiative Before the Expiry of the Notice Period
In accordance with Article 56 of the Labour Code, an employee has the right to terminate the employment contract at their own initiative by notifying the employer no less than one month in advance, except in cases provided for in paragraph 3 of this article. The employment contract may stipulate a longer notice period for the employee.
The employment contract may be terminated by the employee before the expiry of the notice period provided for in paragraph 1 of this article, with the employer’s written consent.
During the notice period, the notification may be withdrawn by the employee.
On 21 October 2021, T. filed a claim with the court against JSC seeking the annulment and recognition of the dismissal order as unlawful. The claim was based on the fact that the notice of resignation was withdrawn by the employee; however, the employer did not cancel the dismissal order.
By decision of Court No. 2 of the city of Petropavlovsk dated 2 December 2021, the claim was dismissed.
When issuing the decision, the court of first instance referred to the provisions of Article 56 of the Labour Code and concluded that the notice of withdrawal submitted by T. was not signed. Therefore, the withdrawal did not meet the formal requirements for such a notice.
By resolution of the Judicial Panel for Civil Cases of the North Kazakhstan Regional Court dated 25 February 2022, the decision of Court No. 2 of the city of Petropavlovsk dated 2 December 2021 was overturned and a new decision was issued.
The claim of T. against JSC was upheld.
The dismissal order terminating the employment contract with T. was declared unlawful and cancelled.
It was established that on 11 August 2021, T. submitted a letter of resignation to the employer with a proposed termination date of 3 September 2021 in accordance with subparagraph 5) of Article 49 and paragraph 2 of Article 56 of the Labour Code.
On 2 September 2021, the claimant submitted a new application requesting termination of the employment contract by mutual agreement under subparagraph 1) of Article 49 of the Labour Code, with the payment of compensation in the amount of two months' actual salary.
On the same date, 2 September 2021, T. sent a withdrawal of her resignation to the employer via the company’s internal email system, requesting that her proposal to terminate the employment contract by mutual agreement be considered instead.
According to subparagraph 81) of paragraph 1 of Article 1 of the Labour Code, a notice is a written statement by the employee or employer (either in hard copy or electronic format certified by digital signature), delivered in person, by courier or postal service, by fax, email, or other communication technologies, or electronically with verification of the sender's identity.
The appellate court, in overturning the lower court’s decision, found that on 2 September 2021 — prior to the actual termination of the employment contract — T. withdrew her resignation via the internal corporate email system, which ensured her identity and authorization.
The message was sent to S., the Director of the HR Department. The email correspondence submitted by the claimant confirms that the withdrawal notice was received by the employer.
Under these circumstances, the dismissal order dated 13 August 2021 should have been cancelled by the employer, as T. exercised her right to withdraw the resignation notice before the effective date.
When considering cases of termination of employment by the employee’s initiative, courts should take into account that an employee may specify a termination date that is earlier than the one-month statutory notice period. However, the employer is not obliged to agree to an earlier termination.
If the employer refuses to shorten the notice period, the termination of the employment contract will only take place after the expiry of the notice period — i.e., not less than one month unless a longer notice is specified in the employment contract. During the notice period, the employee may unilaterally withdraw the resignation notice, even if a dismissal order has already been issued.
The Labour Code of the Republic of Kazakhstan also establishes a separate procedure for termination at the employee’s initiative due to the employer’s failure to fulfill contractual obligations, which does not require compliance with the one-month notice period. Under paragraph 3 of Article 56 of the Labour Code, if the employer fails to fulfill the terms of the employment contract, the employee may serve notice of such failure. If the breach continues for seven working days after the notice, the employee may terminate the contract by giving at least three working days' notice.
Thus, the employee may shorten the one-month notice period by submitting two notifications:
Notification of the employer’s non-fulfillment of the employment contract;
Notification of termination of the employment contract by the employee with a shortened notice period of three working days.
After the three-day period, pursuant to paragraph 5 of Article 56 of the Labour Code, the employee is entitled to cease work, unless the delay in the transfer of the employer’s property or documentation is the fault of a financially responsible person.
Upon termination, the employee shall be paid compensation for unused days of paid annual leave (Article 96, paragraph 2 of the Labour Code), and, in case of the employer’s failure to fulfill the employment contract, severance pay in the amount of one month's average salary is due (subparagraph 3) of paragraph 1 of Article 131 of the Labour Code).
Compliance with the Pre-trial Dispute Resolution Procedure
Application of Article 159 of the Labour Code in Practice
Article 148 of the Civil Procedure Code sets out the requirements for the form and content of a statement of claim. According to subparagraph 1, part 6 of Article 148 of the Civil Procedure Code, the claim must contain information on compliance with the pre-trial procedure, if such is required by law or contract.
In accordance with paragraph 1 of Article 159 of the Labour Code, individual labour disputes shall be resolved by conciliation commissions, except for disputes arising between an employer and:
an employee of a microenterprise;
a non-profit organisation with fewer than 15 employees;
a domestic worker;
the sole executive body of a legal entity;
the head of the executive body of a legal entity; or
other members of the collegial executive body of a legal entity.
Unresolved issues or non-execution of the conciliation commission’s decision may then be brought before a court.
Thus, pre-trial consideration of the dispute by a conciliation commission is not required in disputes involving microenterprise employers, small non-profit organisations with fewer than fifteen employees, domestic workers, sole executive bodies, and other specified officials.
The requirement to apply to the conciliation commission also does not apply to certain categories of employees whose work is governed by the Labour Code with specific features established by special laws and other regulatory legal acts of the Republic of Kazakhstan, including military personnel, special state and law enforcement agencies' employees, and civil servants.
Вот перевод текста на юридический английский язык с сохранением правовых формулировок и терминологии:
Jurisdiction
In accordance with paragraph 5 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of the Application of Legislation by Courts When Resolving Labor Disputes” dated October 6, 2017 No. 9 (hereinafter – the Normative Resolution), claims arising from labor relations shall be filed in court in accordance with the general rules of civil procedure at the location of the defendant – the body of the legal entity, or at the place of residence of the employer who is an individual acting as the defendant in the dispute.
According to Part 2 of Article 29 of the Civil Procedure Code (CPC), a claim against a legal entity shall be filed with the court at the location of the legal entity in accordance with its constituent documents and/or the address recorded in the National Register of Business Identification Numbers.
When claims are filed at the location of a branch or representative office as provided in Part 3 of Article 30 of the CPC, only legal entities may act as defendants.
Jurisdictional issues in this category of cases generally do not raise complexities.
For instance, by a ruling of the Ust-Kamenogorsk City Court, the civil case on the claim of Zh. against a LLP for damages, payment for overtime work, and compensation for moral harm was transferred by jurisdiction to the Interdistrict Civil Court of Astana for consideration on the merits.
The court ruling was correct since it was established that the defendant – a legal entity – is located and registered at: Astana, D. Konayev Street. Claims arising from labor relations must be submitted in accordance with the general rules of civil procedure at the location of the defendant.
Moreover, it is deemed necessary to draw the courts’ attention to the requirements of Article 19 of the Labor Code, according to which the head of a branch or representative office of a foreign legal entity exercises all rights and performs all duties of the employer on behalf of the legal entity. Therefore, an employee has the right to file a claim at the location of the branch of the foreign legal entity, after verifying the authority of the branch manager to represent the interests of the legal entity.
Jurisdiction of labor disputes in cases of rehabilitation or bankruptcy of the employer
Pursuant to Part 8 of Article 35 of the CPC, cases arising in the course of rehabilitation or bankruptcy procedures, including those concerning the invalidation of transactions concluded by the debtor or its authorized person, the return of the debtor’s property, and the recovery of accounts receivable initiated by the bankruptcy or rehabilitation administrator, shall be considered by the same judge who issued the decision to apply the rehabilitation procedure or to recognize the debtor as bankrupt, except for cases whose jurisdiction is established by Article 31 of the CPC.
By a ruling of the Aktobe City Court dated February 15, 2021, the claim of Zh. against a LLP seeking annulment of orders on suspension from work and dismissal, reinstatement at work, payment of overtime wages, payment of wages for the period of forced absence, penalties, and compensation for moral harm was returned based on Subparagraph 2 of Part 1 of Article 152 of the CPC due to the lack of jurisdiction of the case for that court.
The court explained that the Specialized Interdistrict Economic Court (SIEC) of Aktobe Region had applied a rehabilitation procedure to the LLP, and therefore, in accordance with Part 8 of Article 35 of the CPC, the case was to be considered by the economic court.
Indeed, the SIEC decision dated October 14, 2016, which applied a rehabilitation procedure to the LLP, had entered into legal force.
According to Subparagraphs 5 and 7 of Article 67 of the Law of the Republic of Kazakhstan "On Rehabilitation and Bankruptcy", the court in a rehabilitation procedure considers cases of a property nature where the debtor acts as the defendant, and also resolves disputes between participants in the rehabilitation procedure.
According to Subparagraph 16) of Paragraph 1 of Article 1 of the Labor Code, a labor dispute is a disagreement between an employee (or employees) and an employer (or employers), including former labor relations, regarding the application of labor legislation, fulfillment or modification of the terms of agreements, employment and/or collective agreements, and acts of the employer.
It was established that the dispute arose from labor relations, was based on the provisions of labor legislation and employment contracts, and was unrelated to the rehabilitation procedure.
As the court incorrectly applied Part 8 of Article 35 of the CPC, the ruling was overturned by the judicial panel on March 12, 2021, with the case remanded for reconsideration by the court of first instance.
In cases where the employer is declared bankrupt or a rehabilitation procedure is applied, disputes arising from labor relations (such as reinstatement at work, recovery of wages, etc.) shall be considered by courts of general jurisdiction. The provisions of Part 8 of Article 35 of the CPC shall not apply to labor disputes.
State Duty
According to Paragraph 7 of Article 610 of the Tax Code (TC), a state duty shall be charged for claims of a non-property nature in the amount of 0.5 Monthly Calculation Index (MCI).
According to Paragraph 1 of Article 951 of the Civil Code (CC), moral damage is the violation, diminution, or deprivation of personal non-property rights and benefits of individuals.
According to Article 149 of the CPC, a document confirming payment of the state duty shall be attached to the claim.
Under Subparagraph 1) of Article 616 of the TC, plaintiffs are exempt from paying state duties in courts for claims concerning the recovery of wages and other demands related to labor activity.
In the event of a claim being satisfied, the court is obliged, in accordance with Article 117 of the CPC, to collect the state duty from the defendant, if not exempted from such payment.
There have been cases where courts have accepted claims without payment of the state duty in violation of Subparagraph 2) of Part 1 of Article 149 of the CPC.
According to case materials, A. filed a claim against a LLP for recovery of wages, compensation for downtime, penalties, and compensation for moral harm.
By a decision of the Zhetysu District Court of Almaty dated April 13, 2022, upheld by the judicial panel for civil cases of the Almaty City Court, the LLP was ordered to pay wage arrears, penalties, compensation for moral harm, and legal representative fees to A.
The LLP was also ordered to make pension contributions and other mandatory payments for A.’s period of employment from June 22, 2021, to August 2021.
Legal Framework
The main normative legal acts applicable to the review of the summarized category of cases include:
The Constitution of the Republic of Kazakhstan;
The Civil Code of the Republic of Kazakhstan (General Part) dated December 27, 1994;
The Civil Code of the Republic of Kazakhstan (Special Part) dated July 1, 1999;
The Civil Procedure Code of the Republic of Kazakhstan dated October 31, 2015 No. 377-V;
The Labor Code of the Republic of Kazakhstan dated November 23, 2015 No. 414-V ZRK;
The Tax Code of the Republic of Kazakhstan dated December 25, 2017 No. 120-VI ZRK;
The Entrepreneurial Code dated October 29, 2015 No. 375-V ZRK;
The Code of the Republic of Kazakhstan dated July 7, 2020 No. 360-VI ZRK “On Public Health and the Healthcare System”;
The Law of the Republic of Kazakhstan “On Trade Unions”;
The Law of the Republic of Kazakhstan dated April 2, 2010 No. 261-IV “On Enforcement Proceedings and the Status of Court Bailiffs”;
The Law of the Republic of Kazakhstan dated July 14, 1997 No. 155-I “On Notaries”;
The Law of the Republic of Kazakhstan dated April 22, 1998 No. 220-I “On Limited and Additional Liability Partnerships”;
The Law of the Republic of Kazakhstan dated May 13, 2003 No. 415 “On Joint-Stock Companies”;
Normative Resolutions of the Supreme Court of the Republic of Kazakhstan: “On Certain Issues of the Application of Legislation by Courts When Resolving Labor Disputes” dated October 6, 2017 No. 9; “On the Application by Courts of Legislation on Compensation for Moral Harm” dated November 27, 2015 No. 7; “On Judicial Decisions in Civil Cases” dated July 11, 2003 No. 5; “On the Application by Courts of the Legislation of the Republic of Kazakhstan on Court Expenses in Civil Cases” dated December 25, 2006 No. 9.
Law on the Restoration of Solvency and Bankruptcy of Citizens of the Republic of Kazakhstan
This Law regulates public relations arising in the event of a citizen’s insolvency, establishes the grounds for the application of the solvency restoration procedure, as well as the procedures for out-of-court and judicial bankruptcy, and determines their procedures and conditions.
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