On recognition as illegal and cancellation of the act of special investigation regarding the establishment of the degree of guilt of the employee
No. 6001-24-00-6ap/1425 dated February 25, 2025
Plaintiff: K.B., "V" LLP
Respondent: State Institution "Labor Inspection Department" (hereinafter referred to as the Department)
The subject of the dispute:
according to K.B.'s claim for recognition as illegal and cancellation of the act of special investigation regarding the establishment of the degree of guilt of the employee;
according to the claim of LLP "V" for the recognition of the illegal act of a special investigation regarding the establishment of the degree of guilt of the employer
Review of the cassation complaint of the plaintiff of "V" FABULA LLP:
The subject of this dispute is the industrial accident act, drawn up upon the receipt on December 13, 2022, by the road worker K.B. of serious injury to health when heating solidified bitumen in a railway tank. According to the act, the degree of guilt of the employer is 80%, the employee is 20%.
Resolving the dispute and rejecting the claim, the court of first instance concluded that there had been gross negligence in the actions of employee K.B., and therefore, when drafting the act, the commission applied mixed liability provided for in Article 190 of the Labor Code of the Republic of Kazakhstan (hereinafter - TC), and established the degree of fault of the employer and employee..
By changing the decision and satisfying K.B.'s claim, the appellate instance, having established 100% of the employer's guilt, indicated that K.B.'s employee was not guilty of an industrial accident.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision of the court of first instance has been changed. Regarding the rejection of K.B.'s claim, the decision was overturned with a new decision on the satisfaction of the claim in this part. The act of the special investigation of the accident that occurred on December 13, 2022 with an employee of K.B. V LLP was declared illegal and canceled, in terms of subitem 4.1.2 of paragraph 4 and subitem 6.5 of paragraph 6 on violations committed by the employee. The degree of the employer's guilt has been established - 100%.
Regarding the refusal to satisfy the claim of "V" LLP, the decision was left unchanged.
Cassation: the decision of the appeal is overturned, with the decision of the court of first instance remaining in force.
Conclusions: according to subparagraph 68) of Article 1 of the Labor Code, gross negligence is the actions of an employee that contribute to the violation of labor protection and safety regulations and the safety of their health.
From the case materials, including from the protocol of the plaintiff's interrogation dated June 29, 2023 in the framework of the criminal case against V.A., it follows that K.B. did not refuse to perform this work in order to earn money, started working without personal protective equipment, assumed possible consequences, since he was aware of the ban. heating bitumen with a flame, thereby independently contributed to the violation of occupational health and safety regulations and the safety of his health.
Consequently, his actions are considered gross negligence, which reasonably led to the establishment of the degree of his guilt in the accident - 20%.
In addition, it follows from the protocol of the interrogation of the employee of LLP "V" that K.B. had to control the heating of the bitumen tank at lunchtime, since he was paid extra for this work. However, at that time, the latter was sleeping in the trailer, he did not actually monitor the heating temperature of the bitumen, which led to its heating above the norm with a subsequent explosion, resulting in a fire.
It was established that K.B. was not properly acquainted with the instructions on labor protection for workers engaged in work on the discharge and filling of viscous petroleum products. However, he was admitted to these jobs by his employer.
In this regard, the commission's determination of the degree of the employer's guilt - 80% is objective.
Thus, the court of first instance came to a reasonable conclusion to dismiss the claims.
Given that the case did not require the collection and additional verification of evidence, the circumstances of the dispute were fully established, but the court of appeal made mistakes in evaluating evidence, interpreting and applying substantive law, the judicial board concluded that the decision was overturned.
the Board of Appeal, while upholding the decision of the court of first instance.
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