On the recognition of illegal and cancellation of the order on the elimination of violations of the labor Inspectorate
No. 6001-23-00-6ap/164 dated 08/3/2023
Plaintiff: LLP "KL" Defendant: GU "Department of Labor Inspection of the region"
The subject of the dispute: on recognition as illegal and cancellation of the instruction on elimination of violations
Review of the plaintiff's cassation appeal.
PLOT: M.Zh. by Order No. 112 dated April 3, 2006, he was hired as a gas and electric welder at the service center of the branch of the Locomotive Repair Depot Partnership. 146 On February 23, 2020, gas and electric welder M.Zh. and accumulator S. Zh., following the instructions of the master M.E., at night at a height of 5.1 meters from the observation pit on the roof of the locomotive, four hatches of the locomotive battery were welded.
While descending from the locomotive, M.J. fell and was hospitalized in a medical facility. On February 26, 2020, M.Zh. died from serious injuries sustained during a fall from a height in the form of a fracture of the base of the skull, swelling and swelling of the brain, and hemorrhage into the brain substance.
In the period from February 27 to March 30, 2020, an investigation of an industrial accident and a special accident investigation were conducted on this fact.
According to the act of special investigation and the accident Act of March 31, 2020, the degree of fault of the employer was 70%, and the degree of fault of the employee was 30%. By the decision of the Judicial board for Civil cases of the regional court of March 9, 2021, which entered into force in the civil case against M.N. on the recognition and cancellation of the accident acts and the special investigation of the accident, the conclusions of the accident investigation acts were recognized as appropriate to the circumstances and requirements of the legislation. The designated heir to the deceased M.Zh.'s property is his son M.A., which is confirmed by certificates of inheritance rights under the law of August 28, 2020. On January 24, 2022, M.A., being the heir of a deceased employee of the Partnership, applied to the Labor Inspectorate with a statement regarding the legality of payments under the collective agreement.
Judicial acts:
1st instance: the claim is satisfied.
Appeal: the decision of the court of first instance is overturned.
A new decision was made to dismiss the claim.
Cassation: the appeal ruling is upheld.
Conclusions: According to sub–paragraphs 1, 5, 12, 21 of paragraph 2 of Article 23 of the Labor Code of the Republic of Kazakhstan (hereinafter referred to as the Labor Code), the employer is obliged to comply with the requirements of the labor legislation of the Republic of Kazakhstan, agreements, collective agreements, labor contracts, and acts issued by him; timely and in full to pay the employee wages and other payments provided for by regulatory legal acts. acts of the Republic of Kazakhstan, labor, collective agreements, acts of the employer; comply with the instructions of state labor inspectors; to compensate for damage caused to the life and health of an employee in the performance of his labor (official) duties in accordance with this Code and other laws of the Republic of Kazakhstan.
Articles 193, 194 of the Labor Code define the rights and duties of state labor inspectors. Thus, when exercising state control over compliance with the labor legislation of the Republic of Kazakhstan, state labor inspectors have the right to issue mandatory regulations for employers.
Subparagraph 1 of paragraph 1, paragraphs 2, 3 of Article 195 of the Labor Code provides that, based on the results of the audit, the state labor inspector, in accordance with the Business Code of the Republic of Kazakhstan, draws up an act on the results of the audit.
Based on the results of the unscheduled inspection, the defendant drew up an act on the results of the inspection, which shows that in fulfillment of obligations under the collective agreement dated March 31, 2020, concluded between the employer and the employees (hereinafter referred to as the Collective Agreement), the employer made payments in the form of financial assistance to the family of the deceased in the amount of 75 monthly calculation indices (MCI), which amounted to 198,825 tenge (order No. 108 dated 03.03.2020), financial assistance in connection with the death of a parent to the son of the deceased – M.A., who works in the branch's service center in the amount of 55 MCI, which amounted to 145,805 tenge (order No. 140 dated 03/30/2020), as well as a one-time allowance in accordance with subparagraph 10 of paragraph 6.2 of Section 6 of the Collective Agreement in the amount of seven times annual earnings in the amount of 13,863,435 tenge (order No. 225 dated 05/26/2020).
When calculating the average annual salary, the employer is contrary to the Uniform Rules for Calculating the Average salary, approved by the Order of the Minister of Health and Social Development of the Republic of Kazakhstan dated November 30, 2015 No. 908 (hereinafter – Uniform Rules), did not include payment of vacation pay, bonuses, additional payments for work in areas of environmental disaster, etc., a one-time benefit was paid by the employer based on average annual earnings, whereas subparagraph 10 of paragraph 6.2 of Section 6 of the Collective Agreement provides for a one-time payment in the amount of no more than ten times annual earnings, thereby violating the requirements of subparagraph 1 of paragraph 2 of the Article 23 TC.
Thus, the audit established that when paying a one-time benefit as a result of a fatal accident to employee M.Zh., the employer did not fully pay the one-time benefit provided for in subparagraph 10 of paragraph 6.2 of Section 6 of the Collective Agreement, as a result of which the amount of 2,427,901 tenge was underpaid.
The court of first instance, recognizing the order as illegal, pointed out that M.A., is the son of the deceased employee M.Zh., respectively, is not a subject of labor relations, therefore, the defendant had no right to appoint an unscheduled inspection at the request of M.A. Meanwhile, as indicated by the court of appeal, the Labor Inspectorate and its officials (state inspectors They are obliged to monitor compliance with labor legislation.
In this case, M.A. applied to the Labor Inspectorate as the heir of the deceased father, an employee of the Partnership, and as the heir has the right to receive a lump sum payment due in the event of the employee's death.
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