For labor disputes - recognition of orders to terminate an employment contract as illegal
The plaintiffs A., E., P., U. The defendant applied to the court with a claim to "K" LLP on the recognition of orders to terminate the employment contract as illegal, reinstatement to the previous job, recovery of wages for forced idle time. By the decision of the Abay District Court of September 18, 2019, the claim was dismissed. By the resolution of the judicial board for civil cases of the Shymkent City Court of December 12, 2019, the decision of the court of First Instance was canceled and a new decision was made to satisfy the claim:-the Order No. 60-W/K dated September 28, 2018 on termination of the employment contract of A. was canceled, and he was reinstated as a truck driver of the akbulak transport section of the Shymkent production branch of K LLP from September 28, 2018; - The Order No. 53-Y/K on termination of the employment contract of E. was canceled, he was reinstated from August 28, 2018 to the position of the head of the repair of the car list of the Shymkent production branch of K LLP from August 28, 2018;-the Order No. 67-y/k on termination of the employment contract of P. was canceled, he was appointed to the position of the driver of special equipment of the transport section "Akbulak" of the Shymkent production branch of K LLP 2018 re - posted from September 28;-U. the order on termination of the Employment Contract No. 71-Y/K dated September 28, 2018 has been canceled, and it has been reinstated from September 28, 2018 to the position of a pipe-laying driver of the akbulak transport section of the Shymkent production branch of K LLP; - average wages from K LLP for six months of forced free time in the amount of 1,337,550 tenge in favor of E., 757,104 tenge in favor of A., P. and U., personal income produced with the deduction of tax, pension contributions and social tax; - parts of the resolution on the reinstatement of the claimants to work and the recovery of wages were immediately sent for execution;-the state duty paid to the state revenue was returned to E. in the amount of 18,743 tenge, to A., P. and U. in the amount of 10,252 Tenge;-the state duty was collected from the defendant to the state revenue in the amount of 46,189 tenge. In the application of " K " LLP, it was indicated that the conclusions of the board of the Shymkent City Court contradict the evidence studied during the consideration of the case and the circumstances established at the court session, the rules of law to be applied were not applied, and asked to completely cancel the decision of December 12, 2019 and leave the decision of the Abay District Court of September 18, 2019 in force.
For labor disputes - recognition of orders to terminate an employment contract as illegal
According to the case documents, on the basis of the Order No. 165-L/s dated October 1, 2015 and the Employment Contract No. 162, A. was hired to work in "K" LLP for a period of one year, that is, until September 30, 2016 as a car crane driver of the akbulak transport section. In addition, an additional employment contract was concluded between the parties. On October 1, 2016, labor relations between LLP "K" and A. were extended until September 30, 2017 and from October 1, 2017 to September 30, 2018. On September 28, 2018 A. refusal to receive a notification that the employment contract is terminated due to the expiration of its term, about which the corresponding act was drawn up with "K" LLP and the notification was sent by mail to the employee's address. On the basis of the order of " K " LLP No. 70-Y/K of the same day, Labor Relations of A. were terminated from October 1, 2018. On the basis of the Order No. 3-L/s dated August 25, 2015, E. was hired to work for K LLP as the head of the Auto Depot for the operation of special equipment of the 13 tariff category for a period of one year, that is, until August 24, 2016. On August 25, 2016, labor relations between LLP "K" and A. were extended from August 24, 2017, from August 25, 2017-August 24, 2018. On the basis of Order No. 217-O dated August 6, 2018 E. for the period of work 2017-2018, from August 15 to August 30, 2018, regular leave is issued. On August 29, 2018, the employer sent E. a notice of termination of the employment contract due to the expiration of its term by mail to the address. On the basis of the order of LLP" K " of the same date No. 53-Y/K, labor relations with E. were terminated from August 29, 2018. On the basis of the order and Employment Contract No. 184-L/s dated October 1, 2015, P. was accepted to work in "K" LLP as a driver of special equipment of the akbulak transport section for a period of one year, that is, until September 30, 2016.
In addition, an additional employment contract was concluded between the parties. On October 1, 2016, the Employment Relations of "K" LLP with P. were extended until September 30, 2017, and from October 1, 2017-September 30, 2018. On September 28, 2018, P. was warned in writing about the termination of the employment contract due to the expiration of the term, however, he refused to receive the notification, about which the employer concluded a corresponding act, and the notification was sent by mail to the employee's address. On the basis of the order of LLP" K " of the same date No. 67-y/k, labor relations with P. were terminated from October 1, 2018. On the basis of the Order No. 164-L/s dated October 1, 2015, U. was hired to "K" LLP as a pipe-laying driver of the akbulak transport section for a period of one year, that is, until September 30, 2016. On October 1, 2016, the Labor Relations of K LLP with U. were extended until September 30, 2017, from October 1, 2017-September 30, 2018. On September 28, 2018, U. was warned in writing about the termination of the employment contract due to the expiration of the term, however, he refused to receive the notification, the corresponding act was drawn up with the employer and the notification was sent by mail to the employee's address. On the basis of the order of LLP" K " on the same day No. 71-y/k, labor relations with U. were terminated from October 1, 2018. By the decision of the Conciliation Commission of" K " LLP dated April 22, 2019, the claims of the plaintiffs were left unattended due to the expiration of the application period established by Article 159 of the Labor Code of the Republic of Kazakhstan (hereinafter referred to as the Labor Code). However, the plaintiffs went to court in disagreement with the termination of the employment relationship. The court of first instance justified the decision to refuse to satisfy the statement of claim by the conclusion on the legal termination of labor relations between the employer and employees in connection with the expiration of labor contracts in accordance with subparagraph 2) of Article 49 of the Labor Code. The Appeal Board did not agree with this decision of the court and came to the following conclusions. Prevention of restriction of the rights of a person and citizen in the field of labor in accordance with subparagraphs 1), 8) of Article 4 of the labor code; equality of rights and opportunities of employees is a requirement of the labor legislation of the Republic of Kazakhstan. In accordance with subparagraph 2) of Paragraph 1 of Article 30 of the labor code, when the term of the employment contract expires, the parties have the right to extend it for a certain period not established or not less than one year. If, in case of expiration of the employment contract, none of the parties has notified in writing of the termination of the employment relationship within the last working day (shift), it is considered to have been extended for the same period previously concluded, except for the cases provided for in Paragraph 2 of Article 51 of this code. The number of extensions of an employment contract concluded for a certain period of at least one year does not exceed two times.
For labor disputes - recognition of orders to terminate an employment contract as illegal
When the employment relationship continues, the employment contract is considered concluded for an unspecified period. On the basis of Order No. 217-O dated August 6, 2018, E. was granted paid leave for the period of work from August 25, 2017 to August 24, 2018 for 15 calendar days from August 15 to August 29, 2018 inclusive. By order of the Shymkent production branch of the partnership No. 53 dated August 29, 2018, without notifying E. about the termination of the preliminary employment contract in accordance with the requirements of the current labor legislation, the Employment Contract No. 1, concluded on August 25, 2015, was terminated. On August 29, 2018, E. was notified of the expiration of the employment contract and the termination of Employment Relations. It was on this day that labor relations were terminated, that is, the employee was on another leave. On the part of the defendant, U., P. and A. were warned in writing about the termination of the employment contracts concluded with them on September 28, 2018, but their arguments that acts were formed on this issue were recognized as unfounded by the appellate judicial board, as they refused to receive warnings and familiarize themselves with the orders. Because U., P. and A. were at their workplaces on September 28, 2018, that is, on Friday of the week, and on the same day they were called to the employer's personnel department and were not notified of the termination of the employment contract in advance. They also visited their workplaces until noon on October 1, 2018 and performed their assigned labor duties. Thus, from the documents of the case and the circumstances that became known at the meeting of the board, it is established that the defendant grossly violated the norms of labor legislation in force when terminating employment contracts between the plaintiffs. That is, employers did not properly warn the claimants about the termination of the employment relationship. In this context of the case, the conclusion of the Appellate Judicial Board on the fact that during the termination of employment contracts concluded with the plaintiffs, a gross violation of the current labor legislation on the part of the employer, restriction of the rights of employees in the field of Labor and non-observance of equality of rights and opportunities is correct and confirmed by the materials of the case. On the basis of the above, the court of Cassation for civil cases of the Supreme Court of the Republic of Kazakhstan dismissed in force the decision of the court of appeal of the plaintiffs A., E., P., U. to the defendant LLP "K" on the recognition of orders as illegal, reinstatement, recovery of wages for forced idle time, the petition of LLP "K" was dismissed.
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