Collection of wages with payment of compensation for unused work leave
The labor legislation of the Republic of Kazakhstan is based on the Constitution of the Republic of Kazakhstan and consists of the Labor Code of the Republic of Kazakhstan, laws and other regulatory legal acts of the Republic of Kazakhstan.
In resolving cases, the courts were guided by the Labor Code of the Republic of Kazakhstan, and in disputes between civil servants and law enforcement officials by special laws governing the conduct of this service, the regulatory decree of the Supreme Court of the Republic of Kazakhstan No. 9 dated 12/19/2003 "On certain issues of the application of legislation by courts in resolving labor disputes", as amended on 12/22/2008; the Law of the Republic of Kazakhstan "On Trade Unions" dated 04/09/1993; Resolution of the Government of the Republic of Kazakhstan No. 1394 dated December 29, 2000 "On approval of Uniform Rules for calculating average wages".
Often, along with demands for the restoration of violated labor rights, demands are made for compensation for moral damage, for example, caused by delayed payment of wages, etc. In such cases, when resolving claims for compensation for moral damage, the courts, in addition to the above-mentioned normative legal acts, are guided by Articles 141, 951, 952 of the Civil Code, the Normative Resolution of the Supreme Court of the Republic of Kazakhstan No. 3 dated 06/21/2001 "On the application by courts of legislation on compensation for moral damage."
Cases of claims for payment of wages with compensation for unused work leave are satisfied and they do not cause any particular difficulties in applying the legislation. Monetary compensation for unused work leave is established in the same way as wage arrears. As a rule, these requirements are presented along with the requirement to collect wages. Judicial practice in cases of this category has no fundamental differences from the practice of considering labor disputes on the recovery of wages.
Claims for remuneration and recovery of monetary compensation for unused vacation are mainly filed by employees of commercial organizations and those who have an employment relationship with an individual entrepreneur.
Basically, judicial acts in cases of this category are adopted in the form of decisions, the content of which meets the requirements of Articles 220, 221 of the CPC on the structure and content of the decision. There is a negligible number of absentee decisions on claims that require the recovery of wages accrued but not paid to an employee.
In violation of the requirements of Articles 32, 33 of the Labor Code of the Republic of Kazakhstan, an employment contract is not drawn up, and there is no registration of employment documents. Layoffs of employees are carried out with gross violations of labor laws, the issuance of a work record and payment of wages are delayed, not to mention benefits and payment for unused vacation. These circumstances complicate the consideration of the case, leading to a delay in the proceedings, despite the shortened time frame.
It should be noted that when applying to the court, the violated rights (usually of the employee) are restored in most cases. Common reasons for non-payment of wages by employees are the financial insolvency of the employer, which is why lawsuits are becoming widespread.
The Almaty City Court of Astana considered a case on the claim of D.T.B. to the Limited Liability Partnership Designstroymontazh-NS for the recovery of wage arrears and compensation for unused work leave, which the plaintiff requested to recover wage arrears in the amount of 937,664 tenge, compensation for unused work leave in the amount of 94,065 tenge. compensation in connection with job loss in the amount of 370,374 tenge.
The court partially satisfied the plaintiff's claims and collected the amount due to salary arrears, including deductions of the mandatory pension contribution and individual income tax, in the amount of 630,000 tenge and compensation for unused work leave in the amount of 84165 tenge, a total of 714165 tenge. The plaintiff's claims for compensation for job loss in the amount of 370,374 tenge were denied with reference to the norms of paragraph 2 of Article 157 of the Labor Code of the Republic of Kazakhstan, since the employer makes compensation payments to the employee in connection with job loss in the amount of the average salary for three months upon termination of the employment contract on the initiative of the employee in case the employer provides false information. about working conditions when concluding an employment contract or violation by the employer of the labor legislation of the Republic of Kazakhstan, the terms of labor and collective agreements. The plaintiff's dismissal was on other grounds, and the necessary evidence was not provided to substantiate the employer's guilt.
Civil cases were also considered on the claims of former employees of the Agency for Combating Economic and Corruption Crimes of the Republic of Kazakhstan (Financial Police) for the recovery of wages and compensation for unused vacations. The plaintiffs substantiate their claims by the fact that at the time of their dismissal, they were entitled, in accordance with paragraph 4 of Article 24 of the Law of the Republic of Kazakhstan "On Civil Service", to pay severance pay in the amount of four average monthly salaries if they had at least three years of public service experience.
In accordance with Decree No. 883 of the President of the Republic of Kazakhstan dated August 06, 2014 "On measures to further improve the public administration system of the Republic of Kazakhstan" (hereinafter referred to as the Decree), the financial police authorities (the Agency for Combating Economic and Corruption Crimes of the Republic of Kazakhstan) and its territorial divisions were liquidated.
Thus, the employment of the plaintiffs in the financial police was terminated due to their liquidation.
Pursuant to the Decree, territorial liquidation commissions were established in each regional Department for Combating Economic and Corruption Crimes (financial police) to resolve issues related to the abolition of the Department for Combating Economic Crime (Financial Police) by region. At the same time, by Decree No. 883 of August 06, 2014, the functions and powers of the abolished Agency were transferred to: - for the prevention, detection, suppression, disclosure and investigation of corruption crimes and offenses – to the newly formed Agency of the Republic of Kazakhstan for Civil Service Affairs and Anti-Corruption; - for the prevention, detection, suppression, disclosure and investigation of economic and financial crimes and offenses – to the Ministry of Finance of the Republic of Kazakhstan.
By Order No. 1227 of the State Property and Privatization Committee of the Ministry of Finance of the Republic of Kazakhstan dated November 24, 2014, the property of the abolished Agency was transferred to the balance sheet of the Agency for Civil Service Affairs and Anti-Corruption. Part of the property of the abolished Agency was transferred to the Ministry of Finance for the established State Revenue Committee, which took over part of the functions and part of the personnel of the financial police.
According to Article 50 of the Civil Code of the Republic of Kazakhstan, from the moment the liquidation commission is appointed, the powers to manage the property and affairs of a legal entity are transferred to it. Payment of money to creditors of the liquidated legal entity is made by the liquidation commission in the order of priority established by art.51 of the Civil Code.
It follows from the above-mentioned provision of the Civil Code that the liquidation commission of a legal entity is authorized to manage the property and affairs of the legal entity being liquidated.
Since the defendant is not the legal successor of the financial police authority (the Agency for Combating Economic and Corruption Crimes of the Republic of Kazakhstan) and is not entitled to cancel or change the orders of the Agency, the heads of the territorial bodies of the Financial Police Agency, including personnel, the defendant cannot be required to amend the order in terms of accrual compensation payment.
In accordance with the above-mentioned norm and pursuant to the above-mentioned Decree of the President of the Republic of Kazakhstan, a territorial liquidation commission was established in each regional Department for combating Economic and Corruption Crimes (financial police) to resolve issues related to the abolition of the Department for Combating Economic Crime (Financial Police) by region. The Liquidation Commission of the abolished Agency currently has neither property nor funds in the commission's non-existent account to settle with all creditors of the abolished Agency.
The Liquidation Commission prepared and submitted the interim liquidation balance sheet to the Ministry of Finance, having carried out the appropriate work for this. Currently, a draft Government decree on the allocation of funds from the reserve is being approved by the Ministry of Finance.
In this regard, the satisfaction of the plaintiffs' claims was denied.
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