Termination of an employment contract due to repeated non-fulfillment or repeated improper fulfillment of labor duties by an employee without valid reasons

Termination of an employment contract due to repeated non-fulfillment or repeated improper fulfillment of labor duties without valid reasons by an employee subject to disciplinary action (subparagraph 16) of paragraph 1 of Article 52 of the Labor Code)

According to subparagraph 16) of paragraph 1 of Article 52 of the Labor Code, at the initiative of the employer, an employment contract may be terminated in the event of repeated non-fulfillment or repeated improper fulfillment of labor duties without valid reasons by an employee who has disciplinary action.

It follows from the above legal norm that the dismissal of an employee in accordance with this paragraph will be lawful only if the following circumstances are observed:

1) there has been a commission of a disciplinary offense by an employee, that is, non-fulfillment or improper fulfillment of work duties;

2) the employee already has a disciplinary penalty and it has not been lifted or repaid at the time of the repeated violation of discipline.;

3) the rules and deadlines for the imposition of disciplinary action have been observed.

In other words, by subparagraph 16) of paragraph 1 of Article 52 of the Labor Code, the legislator provided for increased disciplinary liability in the form of dismissal of an employee who, having an outstanding and outstanding disciplinary penalty, commits a disciplinary offense again.

A. appealed to the court with a claim to the University for invalidation and cancellation of orders, reinstatement at work, and recovery of wages for the time of forced absenteeism. The local courts established in the satisfaction of the SIC In the case that the plaintiff had been disciplined three times.

The order of November 30, 2022 reprimanded, the order of January 5, 2023 severely reprimanded, and the order of February 2, 2023 terminated the employment contract under subparagraph 16) of paragraph 1 of Article 52 of the Labor Code.

The order of November 30, 2022 was reasonably recognized by the courts as lawful. By refusing to cancel the order dated January 5, 2023, the local courts did not take into account the plaintiff's lack of guilt in the late repair of medical equipment.

It follows from the order dated February 2, 2023, that A. is charged with improper performance of official duties, identified by the results of an audit. The facts of improper performance by the plaintiff of his official duties have been confirmed.

At the same time, the specified audit was conducted for the period from July 1, 2021 to July 31, 2022, that is, all the violations imputed to the plaintiff were committed by him during the specified period, however, at the time of their commission, A. did not have an outstanding or unpaid disciplinary penalty. The first penalty was imposed on him only on November 30, 2022.

Consequently, in this case, there is no sign of repetition, and the employer had no grounds for dismissing the plaintiff under subparagraph 16) of paragraph 1 of Article 52 of the Labor Code.

By the decision of the cassation board, the judicial acts were amended, declared illegal and the orders of January 5, 2023 and February 2, 2023 were canceled, the plaintiff was reinstated in his former position.

M. appealed to the court with a claim to the NAO for recognition as illegal and cancellation of orders, reinstatement at work, recovery of wages for forced absenteeism and bonuses, compensation for moral damage by the decision of the Kostanay City Court of November 3, 2021, the claim was partially satisfied.

The orders to impose disciplinary penalties on M. were declared illegal and canceled: to announce a remark; reprimand;

about the termination of the employment contract. M. was reinstated at work; in favor of her, wages for the time of forced absenteeism and compensation for moral damage were collected from the NAO.

The rest of the claim was denied.

By the decision of the judicial board for Civil Cases of the Kostanay Regional Court dated February 8, 2022, the decision of the court of first instance was changed, the satisfied part of the claim was canceled with a new decision to dismiss the claim, the rest of the decision was left unchanged.

By the decision of the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan dated May 18, 2022, the decision of the appellate instance dated February 8, 2022 was canceled, the case was sent for a new hearing to the court of appeal.

Upon a new review, the court of appeal came to the correct conclusion that there was no sign of a repeat, meanwhile, the plaintiff's claims to reinstate her in her previous position were not satisfied on the following grounds.

Due to the requirements of paragraph 11 of the NP, when resolving a dispute about the legality of an employee's dismissal, the courts should distinguish between the consequences of concluding an employment contract for a certain or indefinite period.

In accordance with the third part of subparagraph 2) of paragraph 1 of Article 30, subparagraph 2) of Article 49, paragraph 1 of Article 51 of the Labor Code, the expiration of an employment contract is the basis for termination of its validity.

Within the meaning of the law, the reinstatement of an employee with whom an employment contract concluded for a certain period of time has been unlawfully terminated is allowed only within the period of validity of such an agreement.

If, at the time of consideration of the dispute, the validity period of such an agreement has expired, the employee is paid the average earnings for the period from the date of unlawful dismissal to the date of expiration of the employment contract concluded for a certain period.

The employment contract with M. was concluded for a certain period until November 25, 2021. Therefore, the expiration of the employment contract is the basis for termination of its validity. Paragraph 1 of Article 161 of the Labor Code provides for the obligation of an employer to pay an employee reinstated by a court for the entire period of forced absenteeism, but not more than six months in advance.

In this regard, the judicial board came to the correct conclusion about the recovery of M.'s average earnings. For the purposes of uniform application in judicial practice when considering and resolving labor disputes by courts related to the requirement to reinstate employees beyond the term of the employment contract, it is necessary to add the following to the NP:

Reinstatement to the previous job of an employee with whom an employment contract concluded for a certain period of at least one year has been unlawfully terminated or terminated, for the duration of a certain job, for the duration of replacing a temporarily absent employee, or for the duration of seasonal work is allowed only within the term of such contract.

If, at the time of consideration of the labor dispute, the validity period of such an agreement has expired, the employee is paid wages for the period from the date of unlawful dismissal until the date of expiration of the employment contract.

Compliance with the pre-trial dispute settlement procedure

          The practice of applying the requirements of Article 159 of the Labor Code Article 148 of the CPC contains a list of requirements for the form and content of the claim.

According to Part 6 of paragraph 1 of Article 148 of the CPC, the application must contain information on compliance with the pre-trial procedure for contacting the defendant, if this is established by law or provided for by contract.

In accordance with paragraph 1 of Article 159 of the Labor Code, individual labor disputes are considered by conciliation commissions, with the exception of disputes arising between an employer and an employee of a microenterprise entity, a non-profit organization with no more than fifteen employees, a domestic worker, the sole executive body of a legal entity, the head of the executive body of a legal entity, as well as other members of the collegial executive body. a legal entity, and for unresolved issues or non–fulfillment of the decision of the conciliation commission - by the courts.

That is, in disputes arising between an employer and an employee of a microenterprise entity, a non-profit organization with no more than fifteen employees, a domestic worker, the sole executive body of a legal entity, the head of the executive body of a legal entity, as well as other members of the collegial executive body of a legal entity, compliance with the preliminary consideration of the dispute in the conciliation commission is not required.

The requirement to apply to the conciliation Commission also does not apply to certain categories of employees whose work is regulated by the Labor Code of the Republic of Kazakhstan with the specifics provided for by special laws and other regulatory legal acts of the Republic of Kazakhstan, including those in military service, employees of special state and law enforcement agencies, civil servants.

          However, there are cases when this requirement of the law is violated, and employee applications are returned without legitimate grounds.

K. filed a lawsuit against the LLP to recover wages, compensation payments for staff reductions, pension contributions, social health insurance payments, penalties and moral damages. By the ruling of the Balkhash City Court of the Karaganda region dated August 19, 2022, K.'s claim was returned to the plaintiff with all the documents due to the failure to provide them with a certificate of wage arrears, as well as the absence of a decision by the conciliation commission.

After a second appeal, by the ruling of the Balkhash City Court of the Karaganda region dated September 27, 2022, the application was again returned to the plaintiff due to non-compliance with the pre-trial settlement of the dispute. Returning the application, the court pointed out that the case file contains a copy of the plaintiff's application to the conciliation commission.

However, there is no document confirming its proper delivery to the employer for consideration, and there is no decision of the conciliation commission. On October 14, 2022, the plaintiff filed a lawsuit again.

By the ruling of the Balkhash City Court of the Karaganda region dated October 27, 2022, a mediation agreement was approved between the parties.

However, the case file contains a letter from the State labor inspector, from the contents of which it follows that according to the Unified Register of Subjects and Objects of Inspections (ERSOP) The Office of the Prosecutor General of the Republic of Kazakhstan and according to the certificate of the category of a business entity of the Ministry of National Economy of the Republic of Kazakhstan, the LLP is registered as a microenterprise entity.

Due to the fact that the LLP belongs to the subject of microenterprise, a pre-trial procedure for the settlement of a labor dispute in the conciliation commission was not required. By the ruling of the court No. 2 of the city of Uralsk dated July 4, 2022, D.'s claim against Kurylys Companiyasy LLP for the recovery of wage arrears was returned to the plaintiff due to violation of the pre-trial procedure for applying to the court.

By the ruling of the Judicial Board for Civil Cases of the West Kazakhstan Regional Court dated August 9, 2022, the ruling of July 4, 2022 was canceled with the referral of the case materials to the same court for consideration of the dispute on the merits.

The court of first instance, returning the statement of claim, was guided by paragraph 1 of Article 159 of the Labor Code, referring to the need for the LLP to apply to the conciliation commission.

At the same time, the court did not take into account the fact that the plaintiff is the sole founder and head of this legal entity, accordingly, there was no need to apply to the conciliation commission.

By the ruling of the court No. 2 of the Bayterek district dated November 1, 2021, U.'s claim to LLP for the recovery of wages was returned due to the indisputability of the requirements and the need to comply with the pre-trial dispute settlement procedure by contacting a notary.

By the ruling of the court of appeal of January 20, 2022, the ruling of the district court of November 1, 2021 was canceled and the case materials were sent to the same court for consideration of the dispute on the merits.

In accordance with the requirements of subparagraph 9) of paragraph 2 of Article 92-1 of the Law of the Republic of Kazakhstan "On Notaries", an executive inscription or a corresponding resolution is issued by a notary upon indisputable claims for the recovery of wages and other payments accrued but not paid to an employee.

As follows from the content of the claim, the employment contract between the parties to the dispute was not concluded, therefore, the plaintiff's salary was not accrued, the claim for its recovery is based on a time sheet and a travel list.

These circumstances indicate that there is a dispute between the parties related to the plaintiff's employment relationship with the defendant and the existence of wage arrears.

Consequently, the dispute was subject to judicial review.

Terms of application for consideration of individual labor disputes (Article 160 of the Labor Code)

The following deadlines are set for applying to the conciliation commission or the court for the consideration of individual labor disputes:

1) for disputes about reinstatement at work – one month from the date of delivery or sending by registered mail with a notification of delivery of a copy of the employer's act on termination of the employment contract to the conciliation commission, and for applying to the court – two months from the date of delivery or sending by registered mail with a notification of delivery of a copy of the decision of the conciliation commission when applying for unresolved disputes or when a party to an employment contract fails to comply with its decision;

2) in other labor disputes – one year from the day when the employee, including those who had previously been in an employment relationship, or the employer learned or should have learned about the violation of his right.

The duration of the application for consideration of individual labor disputes is suspended during the period of validity of the mediation agreement on the labor dispute under consideration, as well as in the absence of a conciliation commission before its establishment.

In case of missing the deadline for applying for valid reasons, the conciliation commission for labor disputes may restore the deadline for applying to the conciliation commission if there are valid reasons for missing and resolve the dispute on its merits.

The conciliation Commission independently determines whether the reasons why the employee, including those who previously had an employment relationship, did not apply to the conciliation commission within the established time frame are valid.

The following deadlines are set for participants in labor relations who have the right, in accordance with the Labor Code, to go to court without contacting the conciliation commission for the consideration of individual labor disputes.:

for disputes about reinstatement at work – three months from the date of delivery or sending by registered mail with a notification of delivery of a copy of the employer's act on termination of the employment contract;

In other labor disputes, it is one year from the day when the employee, including those who had previously been in an employment relationship, learned or should have learned about the violation of his right.

It follows from the above–mentioned provisions of the law that, for the consideration of individual labor disputes between the parties to an employment contract, the law establishes a procedure for pre-trial dispute settlement, with the exception of certain categories of employees, namely, contacting the conciliation commission and only after receiving a copy of the decision when applying for an unresolved issue or if the party to the employment contract fails to comply with its decision, to the court.

At the same time, in the absence of a conciliation commission, the time limit for applying is suspended until its creation, which does not entail the expiration of the time limit for considering an individual labor dispute.

In accordance with paragraph 3 of Article 159 of the Labor Code, the procedure for the formation and activities of the conciliation commission are determined by an Agreement on the work of the conciliation commission or a collective agreement.

M. filed a lawsuit with LLP No. 1 and LLP No. 2 to declare the dismissal orders illegal, to collect salary arrears, and to transfer mandatory pension contributions and contributions to the Social Health Insurance Fund.

By the decision of the Kordai District Court of Zhambyl region dated December 2, 2021, the claim was denied in full.

The court of first instance motivated the refusal to satisfy the claim by the fact that M., on the basis of employment contracts dated May 13, 2020, was hired as a supplier in LLP No. 1 and LLP No. 2.

The orders to dismiss the plaintiff were issued based on his statements. According to the act of July 14, 2020, M. refused to review the order.

In court, the plaintiff's representative confirmed that the resignation letters were written by M. After the dismissal, the employer made a full settlement with him.

At the hearing, the defendant's representative filed a motion to apply the statute of limitations, since the claim was filed after more than one year from the date of dismissal.

The plaintiff filed a lawsuit challenging the dismissal orders on September 16, 2021, while the dismissal order was issued on July 13, 2020.

By the decision of the court of appeal of March 5, 2022, the court's decision was changed, the orders of LLP No. 1 and LLP No. 2 on the dismissal of the plaintiff from the position of supplier were declared illegal, wage arrears were collected from the defendants.

By changing the decision of the court of first instance in the case, the judicial board pointed out that the plaintiff appealed to the court with a demand for the recovery of wages, subsequently demanding that the orders be declared illegal, as evidenced by judicial acts of the Kordai District Court dated May 18, 2021, July 1, 2021. In this regard, the plaintiff did not miss the statute of limitations.

The claims are filed by the plaintiff within a one-year period. Due to the recognition of illegal dismissal orders, the demands for the recovery of wages must be satisfied.

According to the act of July 14, 2020, M. was familiarized with the dismissal orders, but refused to sign the act.

It follows from the judicial acts that M. applied to the court with a claim for recovery of wage arrears in March 2021. By a court decision dated May 18, 2021, the claim was dismissed.

However, he filed a lawsuit challenging the dismissal orders on September 16, 2021, that is, after more than 1 year and 2 months from the date the orders were issued.

The plaintiff did not provide the court with sufficient and reliable evidence indicating that the statute of limitations was respected.

In this regard, the conclusions of the court of appeal on the cancellation of the judicial act of the court of first instance are unlawful.

Jurisdiction

In accordance with paragraph 5 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of legislation by courts in the resolution of labor disputes" dated October 6, 2017 No. 9 (hereinafter referred to as NP), claims for disputes arising from labor relations are subject to filing with the court according to the general rules of civil procedure at the location of the defendant, a legal entity the person or place of residence of the employer of the individual acting as a defendant in the dispute.

According to Part 2 of Article 29 of the CPC, a claim against a legal entity is filed in court at the location of the legal entity according to the constituent documents and (or) the address entered in the National Register of Business Identification Numbers.

When lawsuits are filed at the location of a branch or representative office in accordance with the procedure provided for in part three of Article 30 of the CPC, only legal entities may be defendants.

Questions of jurisdiction in cases of the generalized category do not cause difficulties. Thus, by the ruling of the Ust-Kamenogorsk City Court, the civil case on the claim of Zh. The claim for recovery of damages, payment for overtime, compensation for moral damage has been transferred to the jurisdiction of the inter-district Court for Civil Cases of Astana city for consideration on the merits. The court's ruling is correct because it has been established that the defendant is a legal entity located and registered at:

Astana city, D.Konaeva Street, claims for disputes arising from labor relations are subject to filing in court according to the general rules of civil procedure at the defendant's location. In addition, I consider it 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 the employer on behalf of this legal entity.

Consequently, an employee has the right to file a claim at the location of a branch of a foreign legal entity, having previously verified the rights of the head of the branch to represent the interests of the legal entity.

The issue of determining the jurisdiction of labor disputes in case of rehabilitation or bankruptcy of the employer.

          Thus, by virtue of the provisions of Part 8 of Article 35 of the CPC, cases on disputes arising within the framework of rehabilitation and bankruptcy procedures, including the recognition of transactions concluded by the debtor or a person authorized by him, as invalid, on the return of the debtor's property, on the recovery of receivables from claims of a bankrupt or rehabilitation manager, are considered by the same judge, which have issued a decision on the application of a rehabilitation procedure or on declaring the debtor bankrupt, with the exception of dispute cases, the jurisdiction of which is established by Article 31 of the CPC.

By the ruling of the Aktobe City Court dated February 15, 2021, Zh.'s claim against LLP for the cancellation of orders on suspension from work, dismissal, reinstatement, recovery of wages for overtime, recovery of wages for forced absenteeism, recovery of penalties, moral damage was returned on the basis of subparagraph 2 of part 1 of Article 152 of the PC due to lack of jurisdiction. dispute to this court.

Returning the claim, the court pointed out that the decision of the Council of Ministers of the Aktobe region applied a rehabilitation procedure to the Partnership, and therefore, in accordance with part 8 of Article 35 of the CPC, the case is subject to consideration by the economic court.

Indeed, a rehabilitation procedure was applied to the Partnership by the decision of the Council of Ministers of the Aktobe region Court of October 14, 2016, which entered into force.

By virtue of the provisions of sub-paragraphs 5, 7 of Article 67 of the Law of the Republic of Kazakhstan "On Rehabilitation and Bankruptcy", the court in the rehabilitation procedure accepts cases on property disputes in which the debtor acts as a 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 (employees) and an employer (employers), including those who previously had an employment relationship, on the application of labor legislation of the Republic of Kazakhstan, the fulfillment or amendment of the terms of agreements, labor and (or) collective agreements, acts of the employer.

It has been established that the dispute between the parties arises from an employment relationship, is based on the norms of labor legislation and the terms of employment contracts and is not related to the implementation of a rehabilitation procedure.

Since the court incorrectly applied the provisions of part 8 of Article 35 of the CPC, by the ruling of the judicial board of March 12, 2021, the court's ruling was canceled and the issue was referred to the court of first instance for reconsideration.

In cases where an employer is declared bankrupt or a rehabilitation procedure is applied, disputes arising from an employment relationship (about reinstatement at work, recovery of wages, etc.) are subject to consideration and resolution in courts of general jurisdiction, the provisions of Part 8 of Article 35 of the CPC do not apply to labor disputes.

State duty

According to the requirements of paragraph 7 of Article 610 of the Tax Code, a state fee is charged for non-property claims in the amount of 0.5 MCI.

Based on the requirements of paragraph 1 of Article 951 of the Civil Code, moral harm is a violation, diminution or deprivation of personal non–property benefits and rights of individuals.

According to the requirements of Article 149 of the CPC, a document confirming payment of the state fee is attached to the claim.

In accordance with subparagraph 1) of Article 616 of the Tax Code, plaintiffs are exempt from paying state duties in courts for claims for recovery of wages and other claims related to work.

In case of satisfaction of the claim, the court, in accordance with Article 117 of the CPC, is obliged to collect a state fee to the state revenue from the defendant, who is not exempt from its payment.

There are individual cases when courts, in violation of subparagraph 2) of part 1 of Article 149 of the CPC, accept claims for court proceedings without paying a state fee.

It follows from the case file that A. filed a lawsuit against the LLP to recover wages, compensation for downtime, penalties, and compensation for moral damage.

By the decision of the Zhetysu District Court of Almaty dated April 13, 2022, upheld by the decision of the Judicial Board for Civil Cases of the Almaty City Court, wage arrears, penalties, compensation for moral damage, and expenses for paying for the representative's assistance were recovered from LLP in favor of A.

The LLP is responsible for making pension contributions and other mandatory payments for the period of A.'s employment from June 22, 2021 to August 2021.

Limitation period for labor disputes

In accordance with paragraph 2 of Article 179 of the Civil Code, the limitation period is applied by the court only upon the application of the party to the dispute made before the court's decision.

The court is obliged to accept the claim for consideration regardless of the expiration of the limitation period.

Refusal or return of the application due to the expiration of the limitation period is unacceptable. Compliance with the statute of limitations or their expiration, the presence of valid reasons for missing the deadline for applying to the court should be checked when considering the dispute.

In the absence of an application for the application of the limitation period before the decision is made, the dispute is resolved on its merits.

So, the plaintiff S. appealed to the court with a claim to the Institution for reinstatement and recovery of wages for the time of forced absenteeism. By the decision of the District Court No. 2 of the Bayterek district of the West Kazakhstan region dated November 29, 2021, the claim was reasonably dismissed due to the omission of the statute of limitations based on the defendant's statement.

The court reasoned its conclusions by the fact that the plaintiff filed a lawsuit on October 27, 2021, while the termination order was issued on June 11, 2020.

The plaintiff did not provide sufficient and reliable evidence of the validity of the reasons for missing the deadline for applying to the court.

The case was not considered on appeal.

Regulatory framework The main regulatory legal acts to be applied in the consideration of cases of the generalized category are

·       Constitution of the Republic of Kazakhstan; 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 (hereinafter referred to as the Civil Code);

· Civil Procedure Code of the Republic of Kazakhstan dated October 31, 2015 No. 377- V (hereinafter – CPC);

·       The Labor Code of the Republic of Kazakhstan dated November 23, 2015 No. 414- V SAM (hereinafter referred to as the Labor Code);

·       On Taxes and other mandatory payments to the Budget (Tax Code) dated December 25, 2017 No. 120-VI SAM (hereinafter – NK);

·       Business Code of October 29, 2015 No. 375-V SAM; Code of the Republic of Kazakhstan dated July 7, 2020 No. 360-VI SAM "On the health of the people 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 bailiffs";

· Law of the Republic of Kazakhstan dated July 14, 1997 No. 155-I "On Notary"; Law of the Republic of Kazakhstan dated April 22, 1998 No. 220-1 "On Limited and Additional Liability Partnerships";

· Law of the Republic of Kazakhstan dated May 13, 2003 No. 415 "On Joint-Stock Companies";

regulatory rulings of the Supreme Court of the Republic of Kazakhstan:

· "On some issues of the application of legislation by courts in the resolution of labor disputes" dated October 6, 2017 No. 9;

· "On the application by courts of legislation on compensation for moral damage" dated November 27, 2015 No. 7;

· "On the court decision on civil cases" dated July 11, 2003 No. 5;

· "On the application by the courts of the Republic of Kazakhstan of legislation on court costs in civil cases" dated December 25, 2006 No. 9.

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