Only one disciplinary penalty may be applied to an employee for each disciplinary offense (paragraph 3 of Article 65 of the Labor Code)
By order of the employer, on July 18, 2022, a commission was established to replace and destroy the national flag, the state emblem of the Republic of Kazakhstan, stamp forms, seals, stamps that do not meet state standards (hereinafter referred to as the Commission), which includes B. for 2022.
On August 11, 2022, B. refused to sign the order to establish the commission, as the commission was created during her vacation, and according to the rules for the destruction of certain types of state property, she should not have been included in the commission.
By the employer's order dated August 19, 2022, B. was disciplined in the form of a "remark" for refusing to sign the order dated July 18, 2022 on the establishment of the Commission.
On August 27, 2022, B. appealed to the court for the cancellation of the order to impose a disciplinary penalty, the cancellation of the order to establish a Commission and the recovery of compensation for moral damage.
By a court decision dated December 5, 2022, the order for the remark was declared illegal and canceled. The court refused to satisfy the claim regarding the cancellation of the order on the establishment of the Commission and compensation for moral damage.
By order dated February 24, 2023, disciplinary action was applied against B. in the form of a "remark" for refusing to participate in the work of the commission established by Order No. 69-p dated July 18, 2022.
The plaintiff challenged this order, arguing that she should not have been included in the commission, the order was issued while she was on leave, she had previously been disciplined, which was declared illegal and canceled by the court, in addition, the defendant missed the deadline for disciplinary action.
By a court decision dated May 29, 2023, B.'s claim was satisfied. The order of February 24, 2023 to impose a disciplinary penalty in the form of a "remark" was declared illegal and canceled.
The plaintiff's demand for recognition as illegal and cancellation of the order to impose a disciplinary penalty in the form of a "remark" is legitimate and justified, since for one disciplinary offense, which was also previously declared illegal by a court decision, the plaintiff was twice brought to disciplinary responsibility.
By virtue of paragraph 2 of Article 66 of the Labor Code, disciplinary punishment may not be applied later than six months from the date of the commission of a disciplinary offense.
The plaintiff committed a disciplinary offense on August 11, 2022. Disciplinary punishment may not be applied later than six months from the date of the commission of the disciplinary offense. The deadline for disciplinary action expired on February 11, 2023, while the order for disciplinary action was issued on February 24, 2023.
By the decision of the Judicial Board for civil cases, the court's decision of May 29, 2023 was correctly left unchanged.
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.
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 with the court according to the general rules of civil procedure at the location of the defendant, a legal entity the person or place of residence of the employer of the individual acting as a 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, since it has been established that the defendant is a legal entity located and registered at the address: Astana, D.Konaeva Street, claims for disputes arising from labor relations are subject to filing with the court according to the general rules of civil procedure at the defendant's location.
In addition, I consider it necessary to draw the attention of the courts 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. 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, wage arrears, penalties, compensation for moral damage, and expenses for paying for the representative's assistance were recovered from LLP in favor of A.
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.
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 Civil Code);
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";
Normative resolutions 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; "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 the courts of the Republic of Kazakhstan of legislation on court costs in civil cases" dated December 25, 2006 No. 9.
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