Dismissals of law enforcement officers for gross misconduct
Another of the commonly used grounds for dismissal of law enforcement officers is the ground provided for in subparagraph 12) of paragraph 1 of Article 80 of the Law "On Law Enforcement Service" - for gross violation of official discipline, in order to properly resolve disputes between employees dismissed on this basis, it must be borne in mind that not every violation of official discipline can be dismissed, it is necessary to clearly to establish which violations of official discipline the legislator considered to be gross.
According to subparagraph 5) of Article 1 of the Law of the Republic of Kazakhstan "On Legal Acts", subordinate regulatory legal acts are other non–legislative acts, regulatory legal acts issued on the basis of and (or) in pursuance of and (or) for further implementation of legislative and other regulatory legal acts higher in the hierarchy.
By virtue of subparagraph 8) of paragraph 2 of Article 7 of the Law "On Legal Acts", regulatory legal orders of heads of departments of central government bodies belong to the main types of regulatory legal acts.
According to subparagraph 5) of paragraph 3 of Article 7 of the Law "On Legal Acts", the rules relate to derivative types of regulatory legal acts. Regulatory legal acts of derived types are adopted or approved through regulatory legal acts of the main types and form a single whole with them.
By Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated May 27, 2011 No. 246 (in force before the amendments to the Law), in order to implement the Law, the "Rules for excluding employees who have stopped serving in the Internal Affairs bodies of the Republic of Kazakhstan" (hereinafter referred to as Rules No. 246) were approved.In accordance with paragraph 24 of Rules No. 246, orders on dismissal of employees from the Department of Internal Affairs indicate the grounds for dismissal provided for in paragraph 1 of Article 80 of the Law.
Paragraph 14 of Rules No. 246 provides for an exhaustive list of gross violations of official discipline: absenteeism for three or more consecutive hours in one working day without a valid reason; appearing on duty in a state of alcoholic, narcotic, toxicological intoxication (their analogues), including the use of substances during the working day that cause a state of alcoholic, narcotic, drug intoxication (their analogues); driving a vehicle by an employee of the Department of Internal Affairs in a state of alcoholic, narcotic, and toxicological intoxication (their analogues), both on and off duty.
In one of the petitions for review of the decision of the court of appeal, which satisfied the claims of an employee dismissed under subparagraph 12) of paragraph 1 of Article 80 of the Law "On Law Enforcement Service", the representative The Police Department of the Karaganda region gave the following arguments: "Currently, not only the violations mentioned above (in paragraph 14 of Rules No. 246) are gross. There are a lot of actions and omissions in the activities of police officers for which it is possible to terminate an employment contract. That is, the above list of gross violations is not exhaustive."
At the same time, such arguments cannot be considered justified, since in such a case any violation of official discipline at the discretion of the head of the law enforcement agency may be considered gross, which may lead to violations of the rights of employees.
The Department's petition was dismissed.After the amendments were introduced by Law No. 136-VII, article 80 of the Law "On Law Enforcement Service" was supplemented with subparagraph 2-1 as follows: "A gross violation of official discipline includes improper performance or non-performance of official duties by an employee, resulting in harm to human life and health, if these actions (inaction) do not entail criminal liability; participation in actions that impede the normal functioning of government agencies and the performance of official duties, including strikes; the presence of an employee on duty in a state of alcoholic and (or) narcotic, and (or) substance abuse intoxication, including the use of substances that cause such intoxication during the working day; disclosure by an employee of official information that became known to him in connection with the performance of official duties, which caused harm to the interests of the service."
Thus, the list of gross violations is currently defined by law.The absence of an employee on duty without a valid reason for three or more consecutive hours in one working day is singled out as an independent reason for dismissal (subparagraph 19) of paragraph 1 of Article 80 of the Law "On Law Enforcement Service"), and violations such as driving while intoxicated and (or) drugged, and (or) substance abuse intoxication; An employee's refusal to undergo a medical examination for alcohol and (or) narcotic, and (or) psychotropic, and (or) substance abuse intoxication is included in the list of offenses discrediting a law enforcement agency.
An analysis of the cases submitted for summary showed that the courts mostly correctly resolved disputes between former employees dismissed under subparagraph 12) of paragraph 1 of Article 80 of the Law "On Law Enforcement Service". At the same time, there were cases of incorrect application of the law.Thus, by the decision of the Judicial Board for Civil Cases of the Supreme Court dated April 20, 2022 (3gp-104), the judicial acts of the Pavlodar region in the case of K.'s claim were canceled. to the DWIS of Pavlodar region on reinstatement at work.
In the case, it was established that K. held the position of inspector for professional, service and physical training of the personnel policy group of the AP-162/10 institution. On December 8, 2020, the acting head of the institution verbally instructed the plaintiff to escort the convicts N. and M. to the city of Ekibastuz in a personal vehicle. During this trip, convict N. committed theft.
As a result of the internal investigation, K. was dismissed under subparagraph 12) of paragraph 1 of Article 80 of the Law "On Law Enforcement Service". He was charged, among other things, with improper supervision of convicts.In dismissing the claim, the local courts concluded that K.'s inadequate supervision accompanying a convicted person is a violation of official discipline and grounds for bringing him to disciplinary responsibility.
In quashing the judicial acts and granting K.'s claim, the judicial board of the Supreme Court, with reference to paragraph 14 of Rules No. 246, pointed out that the conclusion of the internal investigation, the decision of the disciplinary commission and the dismissal order lacked a detailed description of the essence and nature of the violation of official discipline. The commission of the actions listed in Rules No. 246 by the plaintiff by local courts has not been established.
In addition, the plaintiff's official duties did not include supervision of convicts, therefore, the courts did not establish improper performance by the plaintiff of the duties specified in the job description. There were also a number of violations committed by the defendant himself when issuing a permit for convicts to leave the institution.
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