Labor disputes a contract with an employee may be terminated by disciplinary action at the initiative of the employer.
In accordance with subparagraph 16 of paragraph 1 of Article 52 and paragraph 6 of Article 53 of the Labor Code, an employment contract with an employee may be terminated at the initiative of the employer in the event of repeated non-performance or repeated improper performance of labor duties without valid reasons by an employee who has a disciplinary penalty. (hereinafter referred to as the RSE) on recognizing orders as illegal and canceling them, reinstating them in their former positions, and collecting wages for the time of forced absenteeism. The claim was dismissed by the decision of the court No. 2 of the city of Uralsk, West Kazakhstan region, dated September 23, 2020. By the decision of the Judicial Board for Civil Cases of the West Kazakhstan Regional Court dated November 25, 2020, the court's decision remained unchanged. The Judicial Board for Civil Cases of the Supreme Court has left judicial acts of local courts unchanged on the following grounds. It follows from the case file that D. Based on the employment contract No. 52 dated March 2, 2017, and the additional agreement No. 27 dated March 1, 2018, he worked as an inspector at the Zhanybek stronghold of the Western Regional Branch of the RGKP. By Order No. 127-k of March 2, 2020, a disciplinary penalty was imposed on D. in the form of a severe reprimand for non-fulfillment and improper fulfillment of duties to protect wildlife in the territory assigned to him.
Labor disputes a contract with an employee may be terminated by disciplinary action at the initiative of the employer.
By Order No. 188 w/c dated April 16, 2020, the employment contract with D. was terminated under subparagraph 16) of paragraph 1 of Article 52 of the Labor Code of the Republic of Kazakhstan (hereinafter referred to as the Labor Code) due to repeated non–fulfillment or repeated improper fulfillment of labor duties without valid reasons by an employee who has disciplinary action. By the decision of the conciliation commission of July 17, 2020, consideration of D.'s application was refused due to missing the deadline for applying, and the request for reinstatement of the deadline for appealing the employer's acts was left without satisfaction. The basis for bringing the plaintiff to disciplinary responsibility were the results of official inspections: dated February 7, 2020, upon the discovery of 50 saiga carcasses in the area "K" of Mashtexai rural settlement, Zhangalinsky district of West Kazakhstan region; dated March 27, 2020, upon the discovery of 110 saiga carcasses in Zhangalinsky district on February 5, 2020, in the period from March 4 to March 5, 2020 - 115 saiga carcasses. The court of first instance, rejecting the claim, concluded that when imposing disciplinary punishment and dismissing the plaintiff, the defendant acted lawfully, the plaintiff's guilt in committing disciplinary offenses was established and confirmed by the materials of official inspections. The terms and procedure for imposing penalties have been observed. The appellate instance agreed with the conclusions of the court of first instance. The Cassation Judicial Board recognizes the conclusions of the local courts as justified, consistent with the established circumstances of the case and the norms of substantive law. According to paragraph 76 of Article 1 of the Labor Code of the Republic of Kazakhstan (hereinafter referred to as the Labor Code), a disciplinary offense is a violation of labor discipline by an employee, as well as improper performance of labor duties. In accordance with the requirements of paragraph 30 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No. 9 "On certain issues of the application of legislation by courts in resolving labor disputes", when considering applications challenging orders from an employer to bring an employee to disciplinary responsibility, it should be borne in mind that a violation of labor discipline is culpable non-fulfillment or improper fulfillment by an employee of the duties assigned to violation of labor duties (violation of labor regulations, job descriptions and regulations, In accordance with subparagraph 16 of paragraph 1 of Article 52 and paragraph 6 of Article 53 of the Labor Code, an employment contract with an employee at the initiative of the employer may be terminated in the event of repeated non-fulfillment or repeated improper fulfillment of labor duties without valid reasons by an employee who has disciplinary action. By virtue of the requirements of paragraphs 1, 2 of Article 66 of the Labor Code, disciplinary punishment is imposed on an employee immediately upon the discovery of a disciplinary offense, but not later than one month from the date of its discovery, except for the cases provided for in paragraph 4 of Article 65 of this Code and other laws of the Republic of Kazakhstan. Disciplinary punishment may not be applied later than six months from the date of the commission of a disciplinary offense, and in cases established by the laws of the Republic of Kazakhstan, or the establishment of a disciplinary offense based on the results of an audit or audit of the financial and economic activities of the employer - later than one year from the date of the employee's commission of a disciplinary offense. Taking into account the above provisions of the law, the local courts have given a correct legal assessment of the circumstances of the dispute. According to Orders No. 49-k dated January 15, 2020, and No. 163 dated February 13, 2020, a group of inspectors headed by D. She was seconded twice to protect wildlife in the territory of site No. 2 of the West Kazakhstan region, which includes Zhangalinsky, Kaztalovsky, Bokeyordinsky districts, for the period from January 21 to February 4, 2020, from February 18 to March 3, 2020. From the reports on the results of the business trip during the security measures for the protection of rare and endangered species of animals and saiga, it follows that the facts of poaching indicated in the materials of the official investigation, the groups headed by D., did not reveal. In both cases, the crews patrolled the same areas of the Kaztalovsky and Bokeyordinsky districts, without covering the territory of the Zhangalinsky district.
Labor disputes a contract with an employee may be terminated by disciplinary action at the initiative of the employer.
As a result of subsequent raid measures conducted by the West Kazakhstan Regional Territorial Inspectorate of Forestry and Wildlife, more than 250 saiga carcasses were found on the territory of the Zhangalinsky district of the West Kazakhstan region, most of them with sawn horns, the death of which presumably occurred during the patrol of the site by the crew. According to the requirements of the Job Descriptions, the inspector is obliged to carry out direct protection of wildlife in the area assigned to him or in the territory specified in the business trip order, to patrol the territory in order to prevent violations in the field of protection, reproduction and use of wildlife. In these circumstances, the conclusions of the local courts that D. the improper performance of official duties for the protection of wildlife, which led to the facts of poaching and mass death of animals in the protected area, are legitimate and justified. The arguments of the petition regarding the violation of the procedure and time limits for bringing D. to disciplinary responsibility were also given a proper legal assessment by the local courts. Penalties were imposed for two independent offenses within a month from the date of their discovery, namely from the date of the conclusion on the results of the official investigation. The grounds chosen by the employer for holding the plaintiff accountable comply with the Labor Code and are proportionate to the offenses committed. The board considers the applicant's references to the lack of human and material resources for patrolling the entire territory of the site to be untenable. The evidence in support of the arguments presented by the plaintiff has not been presented, while the case file confirms that the composition of the group and its logistical equipment allowed for proper protection of the entire accountable area.
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