Imposition of a Disciplinary Sanction in the Form of Dismissal for Committing a Misconduct Discrediting the Civil Service

Pursuant to subparagraph 5) of paragraph 1 of Article 50 of the Law “On Civil Service”, a disciplinary misconduct discrediting the civil service includes providing any person with any assistance not provided for by the legislation of the Republic of Kazakhstan in carrying out entrepreneurial or other income-generating activities.

The analysis shows that employers fail to distinguish between the contents of subparagraphs 4) and 5) of paragraph 1 of Article 50 of the Law “On Civil Service” and, where an employee commits a disciplinary misconduct, impute both subparagraphs to the employee. Some courts repeat the same error when resolving disputes.

S. held the position of Head of the State Institution “Pavlodar City Department of State Revenue”. By an order of the Department of State Revenue of Pavlodar Region dated 2 June 2021, S. was subjected to a disciplinary sanction in the form of dismissal for committing misconduct discrediting the civil service, as provided for in subparagraphs 4) and 5) of paragraph 1 of Article 50 of the Law “On Civil Service”.

During the internal investigation, it was established that the Department had sent LLP “B” a notice requiring the elimination of violations in the amount of KZT 9.6 million. Due to the failure to comply with the notice, the expenditure transactions of the said legal entity were suspended.

The management of the LLP, unwilling to pay the outstanding debt, began seeking ways to have the restrictions lifted in order subsequently to withdraw the funds held in its bank account. For this purpose, the Director of the LLP approached S.

S. informed the Director of the LLP of the methods by which the account could be unblocked and the funds available therein could be withdrawn in cash, and subsequently instructed her subordinates to assist the LLP in having the restrictions lifted. As a result, the LLP was able to withdraw funds from its account before settling its tax liabilities.

In dismissing the claimant's action seeking the annulment of the order and reinstatement at work, the local courts agreed that the claimant's actions contained elements of disciplinary misconduct provided for by both subparagraphs 4) and 5) of paragraph 1 of Article 50 of the Law “On Civil Service”.

However, in this case, S.'s actions are fully covered by the content of subparagraph 5) of the said provision. When making the decision, the claimant did not give preferential treatment to LLP “B”, as there was no other person who had been refused.

Jurisdiction

Pursuant to Article 26 of the Civil Procedure Code, civil cases of this category are considered by district courts and courts equivalent thereto.

M. filed an action against the State Institution “Department for Employment Coordination and Social Programs of East Kazakhstan Region” seeking reinstatement at work.

By a ruling of the Ust-Kamenogorsk City Court dated 26 August 2021, the statement of claim was returned on the grounds that the case fell within the jurisdiction of the Specialized Interdistrict Administrative Court.

The court of appeal held that the ruling of the first-instance court was subject to reversal on the following grounds.

Pursuant to paragraph 2 of Article 102 of the Administrative Procedural and Process-related Code of the Republic of Kazakhstan (hereinafter referred to as the “APPC”), disputes arising from public-law relations fall within the jurisdiction of courts under administrative proceedings. In accordance with subparagraph 2) of paragraph 7 of Article 3 of the APPC, cases for which the procedure of consideration is provided for by the civil procedural legislation of the Republic of Kazakhstan are not subject to consideration under administrative proceedings.

Disputes arising from public-law relations are disputes between subjects of public-law relations, involving relations of authority and subordination, in which one party is vested with public powers in relation to the other party.

The subject matter of M.'s claim, however, was an employment dispute related to challenging the order terminating the employment contract, reinstatement to his former position, recovery of wages, and compensation for non-pecuniary damage.

The position of the Judicial Chamber for Civil Cases of the East Kazakhstan Regional Court on this issue should be recognized as correct.

The Judicial Chamber for Administrative Cases of the Supreme Court of the Republic of Kazakhstan adheres to the same position. By its ruling dated 18 August 2022 (Case No. 6ap/431), it upheld the ruling of the Specialized Interdistrict Administrative Court of Zhambyl Region dated 6 December 2021 and the ruling of the Judicial Chamber for Administrative Cases of the Zhambyl Regional Court dated 12 January 2022.

By the said judicial acts, M.'s action against the State Institution “Taraz City Department of State Revenue” seeking to have the conclusion issued following the internal investigation and the decision of the Disciplinary Commission declared unlawful was returned pursuant to subparagraph 11) of paragraph 2 of Article 138 of the APPC, as the case was not subject to consideration under administrative proceedings.

In upholding the judicial acts of the local courts, the court of cassation stated the following.

By virtue of subparagraph 9) of Article 4 of the APPC, an administrative claim (action) is a claim filed with a court for the purpose of protecting and restoring violated or disputed rights, freedoms, or legitimate interests arising from public-law relations.

The challenged conclusion and the decision of the Disciplinary Commission do not constitute administrative acts of a state body adopted within the framework of public-law relations, do not create rights or obligations for the claimant, and are advisory in nature.

Moreover, the said documents had already been assessed as evidence in the judicial acts issued in connection with the claimant's challenge to the order dismissing him from his position.

The jurisdiction of disputes in this category is determined in accordance with the general rules established by Article 29 of the Civil Procedure Code, under which claims are filed with the court at the location of the defendant.

The Judicial Chamber for Civil Cases of the East Kazakhstan Regional Court reversed the judgment of the Ust-Kamenogorsk City Court in the case brought by K. against the Ministry of Ecology, Geology and Natural Resources of the Republic of Kazakhstan (hereinafter referred to as the “Republic of Kazakhstan”) seeking the annulment of the order imposing a disciplinary sanction, since the case was subject to consideration at the defendant's location in the city of Astana.

Pursuant to paragraph 12 of Article 30 of the Civil Procedure Code, an action against several defendants may be filed, at the claimant's discretion, at the location of any one of the defendants.

E. filed an action against the State Institution “Department of Transport Police of the Ministry of Internal Affairs of the Republic of Kazakhstan” and the State Institution “Police Department of Kandyagash Station” seeking the annulment of an order.

By a ruling of the Mughalzhar District Court, the case was transferred for consideration to the Saryarka District Court of the city of Astana based on territorial jurisdiction, at the location of the defendant, namely the Department of Transport Police.

In reversing the ruling of the first-instance court, the court of appeal noted that the second defendant in the case was the State Institution “Police Department of Kandyagash Station”, with which the claimant was in an employment relationship. Therefore, filing the action at the location of one of the defendants was the claimant's right.

State Duty

Pursuant to subparagraph 1) of Article 616 of the Tax Code, claimants are exempt from payment of state duty in courts in actions for the recovery of remuneration and other claims related to employment activities.

Consequently, no state duty is payable by the claimant in respect of claims seeking to declare an order unlawful and annul it, reinstate the claimant to their former position, recover wages for the period of enforced absence from work, or recover other payments, including unpaid wages, compensation for unused annual leave, and other similar payments.

At the same time, it should be taken into account that labour legislation does not provide for the recovery of compensation for non-pecuniary damage. When granting such claims, courts, pursuant to paragraph 14 of the Regulatory Resolution of the Supreme Court “On the Application by Courts of Legislation on Compensation for Non-Pecuniary Damage”, are guided by Article 24 of the Constitution of the Republic of Kazakhstan and the provisions of Chapter 47 of the Civil Code (Articles 951 and 952). Consequently, state duty is charged on statements of claim containing a demand for compensation for non-pecuniary damage at the rate of 50 per cent of the Monthly Calculation Index (hereinafter referred to as the “MCI”), as for a non-property claim.

Pursuant to Article 117 of the Civil Procedure Code, the state duty from the payment of which the claimant was exempt, as well as costs related to the proceedings in the case, shall be recovered from the defendant, who is not exempt from payment of court costs, in favour of the State in full or in proportion to the satisfied part of the claim.

According to paragraph 16 of the Regulatory Resolution of the Supreme Court “On the Application by Courts of the Republic of Kazakhstan of Legislation on Court Costs in Civil Cases”, the rate of state duty is determined depending on whether the claimant is an individual or a legal entity.

Consequently, where a claim for the recovery of wages is granted, state duty in the amount of 1 per cent of the amount claimed shall be recovered from the defendant in favour of the State, as well as state duty in the amount of 50 per cent of the MCI for all non-property claims.

Pursuant to Article 109 of the Civil Procedure Code, the court shall award the party in whose favour the judgment has been rendered all court costs incurred in the case from the other party.

Where a claim filed by a legal entity against an employee for compensation for material damage is granted, the state duty paid by the claimant in the amount of 3 per cent of the amount claimed shall be recovered from the employee in favour of the claimant.

By Regulatory Resolution No. 3 of the Constitutional Court of the Republic of Kazakhstan dated 22 February 2023, the provisions of paragraph 2 of Article 610 of the Tax Code, insofar as they contained the words “upon filing an administrative claim, statement of claim (application) in such disputes”, were declared inconsistent with paragraph 2 of Article 13 and Article 14 of the Constitution of the Republic of Kazakhstan, as they resulted in the infringement and restriction of everyone's constitutional right to judicial protection of their rights and freedoms.

By the Law of the Republic of Kazakhstan No. 213-VII ZRK dated 20 March 2023, amendments were introduced to Article 610 of the Tax Code, and paragraph 2 was set out in the following wording:

“State duty on petitions for the review of judicial acts under cassation procedure concerning rulings on matters of setting aside arbitral awards and issuing writs of execution for the compulsory enforcement of decisions of arbitral tribunals and foreign courts, as well as judgments and rulings of courts in non-property and property disputes, shall be charged in the amount of 50 per cent of the relevant state duty rate established by paragraph 1 of this Article for the person filing the petition.”

It follows that, upon filing a cassation petition for the review of judicial acts concerning the recovery of material damage from an employee acting as the defendant, state duty shall be charged at the rate of 50 per cent of the applicable state duty rate for individuals, namely 1 per cent of the amount claimed rather than 3 per cent.

Pre-Trial Dispute Resolution Procedure and the Time Limit for Applying to Court

Article 159 of the Labour Code establishes a mandatory pre-trial procedure for resolving individual labour disputes through their consideration by a conciliation commission.

At the same time, this provision contains a number of exceptions.

The requirement to establish a conciliation commission for the consideration of individual labour disputes in accordance with the procedure established by this Code does not apply to certain categories of employees whose labour relations are regulated by the Labour Code of the Republic of Kazakhstan, taking into account the specific features provided for by special laws and other regulatory legal acts of the Republic of Kazakhstan, including persons performing military service, employees of special state and law enforcement bodies, and civil servants.

Thus, the law does not provide for a mandatory pre-trial procedure for resolving labour disputes involving civil servants and employees of law enforcement bodies.

A. filed an action against the State Institution “Department of Health Care of East Kazakhstan Region” seeking the annulment of an order.

By a ruling of the Ust-Kamenogorsk City Court dated 25 March 2021, the statement of claim was returned pursuant to subparagraph 1) of paragraph 1 of Article 152 of the Civil Procedure Code.

The court justified the return of the claim on the grounds that the dispute was subject to consideration by the defendant's conciliation commission.

Although the court ruling was not appealed, as correctly noted by the Judicial Chamber for Civil Cases of the East Kazakhstan Regional Court in its analysis, the said ruling contradicts the requirements of paragraph 1 of Article 159 of the Labour Code.

A different position was taken by the Almaty Regional Court.

By a ruling of the Konaev City Court dated 17 August 2022, the civil case concerning S.'s claim against the Akim of the city of Konaev (Kapshagay) seeking reinstatement at work was left without consideration pursuant to subparagraph 1) of Article 279 of the Civil Procedure Code.

By a ruling of the Judicial Chamber for Civil Cases of the Almaty Regional Court dated 16 November 2022, the ruling of the first-instance court was upheld.

The courts justified their decisions on the grounds that, according to the meaning of paragraphs 1 and 2 of Article 159 of the Labour Code, disputes are subject to mandatory consideration by a conciliation commission. At the same time, the courts failed to take into account that the requirement to establish a conciliation commission does not apply to civil servants.

The Pavlodar Regional Court proposes that the establishment of conciliation commissions within law enforcement bodies be provided for at the legislative level, which would make it possible to resolve conflicts within the workforce promptly and locally.

Such a proposal appears controversial because, pursuant 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, which excludes the possibility of establishing a conciliation commission on a parity basis composed of rank-and-file employees and managers of a law enforcement body.

One of the fundamental principles of civil service, pursuant to subparagraph 10) of paragraph 1 of Article 4 of the Law “On Civil Service”, is the mandatory execution by subordinate civil servants and civil servants of lower-level state bodies of decisions adopted within their competence by higher state bodies and officials.

It is possible to agree with the proposal of the North Kazakhstan Regional Court to introduce, for civil servants and employees of law enforcement bodies, such a mandatory pre-trial dispute resolution procedure as an appeal, in accordance with the chain of command, to higher-ranking officials and higher state bodies. At present, such a right is provided as an alternative under subparagraph 11) of Article 15 of the Law “On Law Enforcement Service” and paragraph 5 of Article 61 of the Law “On Civil Service”.

Pursuant to Article 160 of the Labour Code, the following time limits are established for participants in employment relations who, under this Code, are entitled to apply directly to a court without first applying to a conciliation commission for the consideration of individual labour disputes:

– for disputes concerning reinstatement at work, three months from the date on which a copy of the employer's act terminating the employment contract is delivered or sent by registered mail with acknowledgement of receipt;

– for other labour disputes, one year from the date on which the employee, including a former employee, became aware or should have become aware of the violation of their right.

By an order of the Head of the Police Department of North Kazakhstan Region dated 24 December 2020, S. was dismissed from the internal affairs bodies. The claimant applied to the court on 11 February 2022.

By the judgment of Petropavlovsk City Court No. 2 dated 11 March 2022, the claim was dismissed.

The court of first instance reasonably concluded that the claimant had, without valid reasons, missed the time limit for applying to the court provided for by subparagraph 1) of Article 160 of the Labour Code.

By the judgment of Uralsk City Court No. 2 dated 24 September 2021, which was upheld by the appellate court, the claim filed by Zh. against the State Institution “Firefighting and Emergency Rescue Service” seeking reinstatement at work was dismissed.

The claimant challenged the dismissal effected by an order dated 24 February 2017. During the preliminary hearing, the representative of the defendant filed a motion for the application of the limitation period, while the claimant failed to provide evidence demonstrating valid reasons for missing the prescribed time limit. This circumstance served as the basis for dismissing the claim.

It is appropriate to agree with the opinion of the Judicial Chamber of the West Kazakhstan Regional Court that, when deciding whether grounds exist for restoring the limitation period, Article 185 of the Civil Code should be applied.

Regulatory Legal Framework

The principal regulatory legal acts applicable to the consideration of cases in the category under review are as follows:

The Constitution of the Republic of Kazakhstan;

The Civil Code of the Republic of Kazakhstan (General Part) dated 27 December 1994; the Civil Code of the Republic of Kazakhstan (Special Part) dated 1 July 1999 (hereinafter referred to as the “Civil Code”);

The Civil Procedure Code of the Republic of Kazakhstan dated 31 October 2015 No. 377-V (hereinafter referred to as the “Civil Procedure Code”);

The Labour Code of the Republic of Kazakhstan dated 23 November 2015 No. 414-V ZRK (hereinafter referred to as the “Labour Code”);

The Code of the Republic of Kazakhstan dated 25 December 2017 No. 120-VI ZRK “On Taxes and Other Obligatory Payments to the Budget” (Tax Code) (hereinafter referred to as the “Tax Code”);

The Law of the Republic of Kazakhstan dated 23 November 2015 No. 416-V ZRK “On Civil Service of the Republic of Kazakhstan” (hereinafter referred to as the “Law on Civil Service”);

The Law of the Republic of Kazakhstan dated 6 January 2011 No. 380-IV “On Law Enforcement Service” (hereinafter referred to as the “Law on Law Enforcement Service”);

The Law of the Republic of Kazakhstan dated 23 April 2014 No. 199-V ZRK “On Internal Affairs Bodies”;

The Law of the Republic of Kazakhstan dated 18 November 2015 No. 410-V ZRK “On Counteracting Corruption”;

The Code of Ethics of Civil Servants of the Republic of Kazakhstan, approved by Decree No. 153 of the President of the Republic of Kazakhstan dated 29 December 2015;

Decree No. 152 of the President of the Republic of Kazakhstan dated 29 December 2015, which approved:

• the Rules and timelines for evaluating the performance of civil servants;
• the Rules and timelines for rotation, as well as the categories and positions of civil servants subject to rotation;
• the Rules for imposing disciplinary sanctions on civil servants;

Regulatory Resolutions of the Constitutional Court of the Republic of Kazakhstan:

• No. 4 dated 6 March 2023 “On Consideration of the Issue of Compliance with the Constitution of the Republic of Kazakhstan of Subparagraph 6) of Paragraph 3 of Article 16 of the Law of the Republic of Kazakhstan ‘On Civil Service of the Republic of Kazakhstan’”;
• No. 3 dated 22 February 2023 “On Consideration of the Issue of Compliance with the Constitution of the Republic of Kazakhstan of Subparagraph 1) of Paragraph 1 and Paragraph 2 of Article 610 of the Code of the Republic of Kazakhstan dated 25 December 2017 ‘On Taxes and Other Obligatory Payments to the Budget’ (Tax Code)”;

Regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan:

• No. 9 dated 6 October 2017 “On Certain Issues of the Application by Courts of Legislation in Resolving Labour Disputes”;
• No. 7 dated 27 November 2015 “On the Application by Courts of Legislation on Compensation for Non-Pecuniary Damage”;
• No. 5 dated 11 July 2003 “On Court Judgments in Civil Cases”;
• No. 9 dated 25 December 2006 “On the Application by Courts of the Republic of Kazakhstan of Legislation on Court Costs in Civil Cases”.

Order No. 246 of the Minister of Internal Affairs of the Republic of Kazakhstan dated 27 May 2011 “On Certain Issues of Service in the Internal Affairs Bodies of the Republic of Kazakhstan” (hereinafter referred to as “Order No. 246”). It was repealed by Order No. 830 of the Minister of Internal Affairs of the Republic of Kazakhstan dated 22 October 2022.

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