The pre-trial dispute settlement procedure and the time limit for applying to the court for individual labor disputes

Article 159 of the Labor Code provides for a mandatory pre-trial procedure for the settlement of an individual labor dispute through the consideration of a dispute by a conciliation commission.

However, this rule contains a number of exceptions. The requirement to establish a conciliation commission to consider individual labor disputes in accordance with the procedure established by this Law.  This Code 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. Thus, the law does not provide for a pre-trial procedure for resolving labor disputes for civil servants and law enforcement officers.

A. appealed to the court to the State Institution "Health Department of the East Kazakhstan region" to cancel the order.By the ruling of the Ust-Kamenogorsk City Court dated March 25, 2021, the claim was returned on the basis of subparagraph 1) of part 1 of Article 152 of the CPC.The court motivated the return of the claim by the fact that the dispute should be considered by the defendant's conciliation commission.The court's ruling has not been appealed, however, as the Judicial Board for Civil Cases of the East Kazakhstan Regional Court correctly pointed out in its analysis, this ruling contradicts the requirements of paragraph 1 of Article 159 of the Labor Code.

The Almaty Regional Court expressed a different position. By the ruling of the Konaev City Court dated August 17, 2022, the civil case against S. against the mayor of Konaev (Kapshagai) for reinstatement was left without consideration on the basis of subparagraph 1) of Article 279 of the CPC.

By the ruling of the Judicial Board for Civil Cases of the Almaty Regional Court dated November 16, 2022, the ruling of the court of first instance remained unchanged.The courts motivated their decision by the fact that, within the meaning of paragraphs 1 and 2 of Article 159 of the Labor Code, mandatory dispute resolution is provided for in the conciliation commission. At the same time, the courts did not take into account that the requirement to establish a conciliation commission does not apply to civil servants.

The Pavlodar Regional Court proposes at the legislative level to provide for the creation of conciliation commissions in law enforcement agencies, which will make it possible to resolve the conflict on the ground in a short time within the team. Such a proposal seems controversial, since according to article 4 of the Law "On Law Enforcement Service" one of the special principles of law enforcement service is the principle of unity of command and subordination (subordination), which excludes the possibility of creating a conciliation commission on a parity basis from among ordinary employees and heads of law enforcement agencies.

One of the basic principles of public service by virtue of subparagraph 10) of paragraph 1 of Article 4 of the Law "On Public Service" is the obligation to execute decisions taken by higher state bodies and officials within their powers for subordinate civil servants and civil servants of lower state bodies; One can agree with the proposal of the North Kazakhstan Regional Court to introduce such a mandatory pre-trial dispute resolution procedure for civil servants and law enforcement officers, as an appeal to higher-ranking officials in the order of subordination, to higher authorities. Currently, such a right is provided as an alternative (subparagraph 11) of Article 15 of the Law "On Law Enforcement Service", paragraph 5 of Article 61 of the Law "On Civil Service").

In accordance with article 160 of the Labor Code, the following deadlines are set for participants in labor relations who have the right, in accordance with this Code, to go to court without contacting the conciliation commission for individual labor disputes.:

for disputes about reinstatement at work – three months 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;

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.

By order of the head of the Police Department of the North Kazakhstan region dated December 24, 2020, S. was dismissed from the internal affairs bodies. On February 11, 2022, the plaintiff appealed to the court. The claim was dismissed by the decision of the Petropavlovsk City Court No. 2 dated March 11, 2022.

The court of first instance reasonably concluded that the plaintiff had missed the deadline for applying to the court provided for in subparagraph 1) of Article 160 of the Labor Code without valid reasons. By the decision of the court No. 2 of the city of Uralsk dated September 24, 2021, upheld by the decision of the appellate instance, in satisfaction of the claim of Zh. The State Institution "Fire Extinguishing and Emergency Rescue Service" has been refused reinstatement. The plaintiff challenged the dismissal by order dated February 24, 2017.

The defendant's representative filed a motion at the preliminary hearing to apply the statute of limitations, but the plaintiff did not provide evidence of the validity of the omission. This circumstance served as the basis for the refusal to satisfy the claim.

We should agree with the opinion of the judicial board of the West Kazakhstan Regional Court that when deciding on the presence or absence of grounds for restoring the limitation period, Article 185 of the Civil Code should be guided.

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