Invalidation of an employment contract
Local courts did not assess the plaintiff's motivation from a legal point of view and did not determine the circumstances relevant to the case during the consideration of the dispute. the defendant filed a lawsuit against the non – profit Joint-Stock Company "Kazakh National Medical University named after S. zh.Asfendiyarov" (hereinafter referred to as the University/employer) with a claim for illegal recognition of the contract No. 349 of February 27, 2020, invalidation of the contract of February 20, 2020, reinstatement of the position of associate professor of the Department of chemical pharmaceutical disciplines, recovery of an average salary of 2,026,920 tenge and compensation for moral damage in the amount of 10,000,000 tenge for time forced to idle. By the decision of the District Court No. 2 of Almaly District of Almaty dated September 2, 2020, the claim was partially satisfied: - by the Order of the University No. 349 of February 27, 2020, the additional contract of February 20, 2020 was declared illegal;-sh. was reinstated to the structural unit of the University as an associate professor; - salary of 2,071,515 tenge for the time forced to idle from February 27 to August 27, 2020 in favor of Sh., compensation for moral damage in the amount of 50,000 tenge produced; - the part of the decision on the re-employment of Sh. and the recovery of wages for no more than three months was sent for immediate execution; - the rest of the claim was refused; - the defendant was charged a state fee of 20,715 tenge in favor of the state.
Invalidation of an employment contract
By the decision of the Judicial Board of the Almaty city court for civil cases dated December 15, 2020, the decision of the court of first instance was left unchanged. After hearing the opinion of the university representatives in support of the petition, the objection of the plaintiff, studying the case documents, discussing the arguments of the petition, the judicial board came to the conclusion that judicial acts are subject to cancellation due to the following grounds. In accordance with part five of Article 438 of the code of Civil Procedure of the Republic of Kazakhstan (hereinafter referred to as the code of Civil Procedure), the grounds for reviewing judicial acts that have entered into legal force in cassation are significant violations of the norms of material and procedural law, which led to the issuance of an illegal judicial act. In this civil case, such violations were committed. As it turned out from the case documents, sh. was hired as an associate professor at the University on the basis of an employment contract No. 2458 dated September 5, 2016. In accordance with the additional agreement concluded on September 1, 2018, paragraph 1 of this employment contract was amended, in which he agreed to work under one load as an associate professor of the Department of chemical pharmaceutical disciplines of the University. By the order of the employer dated August 26, 2019 No. 285, on the basis of subparagraph 8) of Paragraph 1 of Article 52 of the Labor Code of the Republic of Kazakhstan (hereinafter referred to as the Labor Code), the employment contract concluded with Sh. for three hours of absence from the workplace for unknown reasons was terminated. By the decision of the District Court No. 2 of Almaly District of Almaty dated February 20, 2020, which entered into legal force, the Order No. 285 of August 26, 2019 on termination of the University's employment contract was declared illegal, and SH. was reinstated to the position of associate professor and received a salary of 1,423,744 tenge for the time in his favor he was forced to leave. On the basis of this decision and the writ of execution, the University issued an Order No. 338 on the re-placement of Sh. to the position of associate professor of the Department of chemistry. In accordance with paragraph 3 of Article 50 of the Labor Code, repealed by the law of the Republic of Kazakhstan dated May 4, 2020 No. 321-VI" on amendments and additions to some legislative acts of the Republic of Kazakhstan on labor issues", the employment contract may provide for the right of the employer by agreement with the employee to terminate the employment contract with the receipt of compensation In accordance with paragraph 3 of the supplementary agreement concluded on February 20, 2020, the parties provide that in accordance with paragraph 3 of Article 50 of the Labor Code in force at that time, the employer has the right to terminate the employment contract by paying compensation to Sh. in the amount of one official salary.
In accordance with the order of the University dated February 27, 2020 No. 349-SV, labor relations with Sh. were terminated on the basis of subparagraph 1) of Article 49 and Paragraph 3 of Article 50 of the Labor Code with compensation payment without compliance with the requirements established by Paragraph 2 of this article. By the decision of the District Court No. 2 of Almaly District of Almaty, the statement of claim was partially satisfied, referring to paragraphs 18, 19 of the normative resolution of the Supreme Court No. 9 dated October 6, 2017 "on some issues of application of legislation by courts in resolving labor disputes". It is indicated that sh. was at the place of work from August 13 to 19, 2019. In this regard, the controversial order on termination of Labor Relations was canceled, he was reinstated to his previous job, and 50,000 tenge was collected for compensation for moral damage on the basis of Article 951 of the Civil Code of the Republic of Kazakhstan. In the resolution of the Almaty city court dated December 15, 2020, it was noted that the court of first instance correctly assessed the circumstances, evidence, documents of the case established in the case, and the decision made corresponds to the circumstances of the case. When making a decision in accordance with Article 225 of the APC, the court evaluates the evidence, determines which circumstances relevant to the case have been established and which circumstances have not been established, what are the legal relations of the parties, what law should be applied in this case and whether the declared claim is subject to satisfaction. The court decides the case within the limits of the requirements declared by the plaintiff. In the case, labor relations with Sh.are terminated in accordance with paragraph 3 of Article 50 of the Labor Code.
However, local courts indicated that he was at work from 13 to 19 August 2019 and that the employer was absent from work for three consecutive hours or more within one working day, concluding that his argument that he had terminated the employment contract was against the law. And the legality of termination of Labor Relations in accordance with paragraph 3 of Article 50 of the Labor Code according to the main form of claim of the case did not have a form of consideration by the court. In accordance with the normative resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 5" on a court decision", the motivational part of the decision begins with the introduction of the rules of law that the court took as a basis when making the decision. The court, based on their content, determines the range of circumstances that are significant for the case. The assessment of the presented evidence allows the court to summarize what circumstances relevant to the case have been established and what circumstances have not been established. However, the court of first instance did not indicate on what grounds the decision was taken in the motivational part, did not give a legal assessment, and incorrectly determined the range of circumstances that are important for the case in the framework of the claim. The court of first instance concluded that the requirements of the plaintiff Sh. No. 2, No. 5, No. 6 on the recognition of the Order No. 349 of February 27, 2020 "on termination of the employment contract" as illegal, on the reinstatement of the university to the position of associate professor at the Department of chemical and pharmaceutical disciplines, as well as on the recovery of the average salary for forced free time are subject to satisfaction. The judicial board considers that the judicial acts adopted by local courts reflect the circumstances established by the decision of the District Court No. 2 of Almaly District of Almaty dated February 20, 2020, issued in the previously considered civil case, and in this case, that is, the plaintiff did not give an appropriate legal assessment of the motivation that caused the claim to the court. At the same time, local courts during the consideration of the dispute did not establish the circumstances relevant to the case, however, the form of the dispute and the adopted judicial acts contradict each other. In the motivational part of the decision of the court of first instance, it is indicated that 50,000 tenge is subject to recovery for the assistance of a representative in favor of Sh., however, this amount is not specified in the resolution part of the decision.
Invalidation of an employment contract
In addition, in the motivational part of the decision, the court of first instance referred to the requirement of Article 541 of the tax code of the Republic of Kazakhstan, stating that "plaintiffs are exempt from state duty", but this article is an article that determines the deadline for submitting a tax return. The Judicial Board of Cassation concluded that local courts incorrectly proved the merits of the case, incorrectly assessed the arguments of the parties, and incorrectly applied the norms of material and procedural law. Therefore, controversial judicial acts adopted in the case cannot be recognized as legitimate and justified. On the basis of the above, the Judicial Board of Cassation for civil cases of the Supreme Court of the Republic of Kazakhstan canceled the judicial acts of local courts and sent the plaintiff Sh. to the Judicial Board of Appeal for a new consideration of the civil case initiated by the plaintiff against the non-profit Joint Stock Company "Kazakh National Medical University named after S. zh.Asfendiyarov". The application of the non-profit Joint Stock Company" Kazakh National Medical University named after S. zh.Asfendiyarov " was partially satisfied.
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