Term and prolongation of the employment contract

Upon expiration of the employment contract, the parties have the right to extend it for an indefinite or definite period of at least one year.

In case of expiration of the employment contract, if neither of the parties during the last working day (shift) If she has not notified about the termination of the employment relationship, it is considered to be extended for the same period for which it was previously concluded, with the exception of the cases provided for in paragraph 2 of Article 51 of the Labor Code.

An employment contract concluded for a certain period of time may be extended no more than twice.

If the employment relationship continues, the employment contract is considered concluded for an indefinite period.

On January 13, 2020, the head of the LLP issued order No. 2 on hiring K. for the position of lawyer at 0.5% of the rate, which is reflected in the electronic workbook. The defendant's representative at the board meeting provided a copy of the order.

On April 1, 2021, the plaintiff was transferred to a full-time lawyer. The parties signed an employment contract dated April 1, 2021, according to which the plaintiff was accepted by a lawyer in the LLP for a period of 12 months.

On April 3, 2023, the plaintiff was notified of the termination of the employment relationship due to the expiration of the employment contract. April 1 and 2, 2023 - Saturday, Sunday.

On April 3, 2023, an order was issued to terminate the employment contract due to the expiration of the employment contract dated April 1, 2021, with compensation for the period of work from January 13, 2023 to March 31, 2023. The plaintiff reviewed the order on April 7, 2023.

The courts lawfully declared illegal and cancelled the order dated April 3, 2023 on K.'s dismissal, since the initial employment contract between the parties was concluded on January 13, 2020. The defendant did not provide the court with an employment contract dated January 13, 2020. However, the case file contains an electronic workbook confirming the fact of an employment relationship since January 13, 2020 between the parties.  There is an order

On January 13, 2020, the plaintiff was hired at 0.5 lawyer's rate. Since the employment relationship was continued by the parties, the employment relationship was not terminated on January 13, 2021, respectively, the employment contract between the parties was extended for the same period, and not concluded indefinitely.

The courts should clarify that the employment contract based on the case file was concluded on January 13, 2020 to January 13, 2021 (inclusive), in the absence of a notice of termination of the employment contract, the employment contract is automatically extended for the same period, i.e. the first extension until January 13, 2022 (inclusive), in the absence of notification upon termination of the employment contract, the employment contract is automatically extended for the same period, i.e. the second extension until January 13, 2023 (inclusive), in the absence of notification of

upon termination of the employment contract, the employment contract is automatically extended indefinitely under the terms of the contract without formalizing an additional agreement to the employment contract.

It is allowed to automatically prolong an employment contract concluded for a certain period for the same period for which it was previously concluded, with the exception of the cases provided for in paragraph 2 of Article 51 of the Labor Code and paragraph 1 of Article 96 of the Labor Code. In order to provide an employee with the opportunity to exercise the constitutional right to annual paid work leave, paragraph 1 of Article 96 of the Labor Code provides for the employee's right to paid annual work leave beyond the term of the employment contract, with subsequent termination due to the expiration of its term. Paid annual work leave may be granted if the vacation time is fully or partially beyond the term of the employment contract. The last day of the paid annual leave is considered to be the day of termination of the employment contract due to the expiration of its term. Therefore, if an employer grants paid annual work leave beyond the term of the employment contract, this will not mean its automatic extension. This innovation grants the employer the right to "shift" the termination date to the last day of the paid annual leave and terminate the employment contract, regardless of the type of term of the employment contract.

When concluding an employment contract for a certain period of at least one year, the contract specifies the start date and the expiration date of the employment contract, with the possibility of further extension no more than twice. As a result of the extension and late provision of annual paid work leave in the working year, employees accumulate days of unused annual paid work leave, which they can use upon termination of the employment contract in order to receive financial assistance for work leave.

According to paragraph 5 of Article 13 of the Labor Code, if the last day of the term falls on a non-working day, then the first working day following it is considered to be the day of the end of the term, unless otherwise provided by the Labor Code. Attention should be paid to the phrase "unless otherwise provided by the Labor Code," since paragraph 1 of Article 96 of the Labor Code provides otherwise.: that the day of termination of the employment contract in connection with the expiration of its term is considered to be the last day of paid annual leave. A similar interpretation is applied in paragraph 2 of Article 51 of the Labor Code, which provides for the obligation of the employer to extend the term of the employment contract with a separate category of employees - until the day of the end of parental leave.

Thus, it can be concluded that the date of termination of the employment contract, as well as the date on which the order to terminate the employment contract is issued, will be considered the last day of paid annual leave, even if this day falls on a non-working day and the employee's actual presence at the workplace is not required. In addition, in the time table, based on paragraph 2 of Article 79 of the Labor Code, the day of termination of the employment contract due to the expiration of its term will be reflected as the day of labor leave.

For example, an employment contract may be concluded for the duration of the replacement of a temporarily absent employee, where the termination date, based on paragraph 4 of Article 51 of the Labor Code, is the day the employee who retained his place of work (position) or the date of termination of the employment contract with the employee who retained his place of work (position). If the main employee returns to his previous place of work and there are unused days of annual paid work leave for the replacement employee, the parties may agree to provide virtually unused days of work leave with subsequent termination of the contract instead of paying compensation for the days of paid annual work leave not used by him.

Based on paragraph 3 of Article 51 of the Labor Code, the expiration date of an employment contract concluded for the duration of a certain job is the day of completion of work, i.e. the occurrence of an event. In case of completion of the work (project) for which the employee was accepted, the employer is obliged to terminate it after the expiration of the contract, but the parties may agree to provide days of annual paid work leave with subsequent termination of the contract. The employer has the right to provide days of annual paid labor leave without fear of further disputes about the untimely termination of the employment contract and its further extension for an indefinite period, paragraph 1 of Article 96 of the Labor Code exempts the employer from such risks.

If the extension of the term of the employment contract for the days of annual paid work leave applies to all types of terms, then the extension of the employment contract with a pregnant woman with a pregnancy period of twelve weeks or more, as well as an employee with a child under the age of three, who adopted a child and wished to use his right to leave without pay child care is allowed only if the contract is concluded for a certain period of at least one year.

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 in court according to the general rules of civil procedure at the location of the defendant, the body of a legal entity, or at the place of residence of the employer of the individual acting as the 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 is established that the defendant – The legal entity is located and registered at the address: Astana city, D street.Konayeva, 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 of the employer on behalf of this legal entity faces. 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, the state duty is levied on 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, with LLP in favor of A.

wage arrears, penalties, compensation for moral damage, and expenses related to the representative's assistance have been collected.

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.

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. appealed to the court with a claim to LLP for the recovery of wages, compensation payments in case of staff reduction, 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 Prosecutor General's Office of the Republic of Kazakhstan and according to the certificate of the category of the subject of entrepreneurship of the Ministry of National Economy of the Republic Kazakhstan 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  On 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 in case of non–fulfillment of its decision by a party to an employment contract; 2) for other labor disputes - one year from the day when the employee, including those who previously had an employment relationship, or the employer I found out or should have found out about the violation of my right. The term 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. If the deadline for applying is missed 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.

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 individual labor disputes, the following deadlines are set: for disputes about reinstatement at work – three months from the date of delivery or delivery 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.

Regulatory framework

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

The Constitution of the Republic of Kazakhstan;

The 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 CC);

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;

The 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";

The Law of the Republic of Kazakhstan dated July 14, 1997 No. 155-I "On Notary";

The Law of the Republic of Kazakhstan dated April 22, 1998 No. 220-1 "On Limited and Additional Liability Partnerships";

The 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 Judicial decision in civil cases" dated July 11, 2003 No. 5; "On the application by courts of the Republic of Kazakhstan legislation on court costs in civil cases" dated December 25, 2006 No. 9.

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