Article: Difficulties of solving individual labor disagreements
Difficulties of solving individual labor disagreements
Islambek Nurzhanov
Associate, Synergy Partners Law Firm
Currently, the main reason for labor disagreements is lack of knowledge or understanding of labor legislation both by employers and employees. In this article we will review two main problems of solving individual labor disagreements.
- Is the employee obliged to apply to the conciliation commission of the employer before filing a statement of claim in court?
Article 159 of the Labor Code of the Republic of Kazakhstan provides for the procedure for considering an individual labor dispute.
According to paragraph 1 of the above mentioned article, individual labor disputes are considered in the conciliation commissions, while an unsettled issue or non-enforcement of decisions of the conciliation commission are considered by courts, with the exception of small business entities and heads of the executive body of the legal entity.
Regulatory Decree No.9 of the Supreme Court of the Republic of Kazakhstan of December 19, 2003 "On Certain Issues of the Application of Legislation by the Courts in Resolving Labor Disputes" indicates that the application to the conciliation commission for the resolution of a dispute is the right and not the obligation of the employee. However, in court practice, courts return claim statements if the employee did not apply to the conciliation commission and did not try to settle the dispute in a pre-trial order.
Proceeding from this, we understand that before applying to a court to consider a labor dispute, the employee must apply to the conciliation commission of the employer.
Pre-trial settlement allows the employee and the employer to resolve the arising labor dispute independently and unloads the work of the Kazakhstan courts.
- How to calculate the timeframe for the consideration of labor disputes correctly?
Article 160 of the new Labor Code of the Republic of Kazakhstan provides the following timeframe for applying to the conciliation commission or court for the consideration of individual labor disputes:
- For disputes on reinstatement at work – to apply to the conciliation commission – one month from the date of delivery of a copy of the employer's certificate of termination of the employment contract, to apply to the court – two months from the date of delivery of a copy of the decision of the conciliation commission when applying for unresolved disputes or non-enforcement of decisions of the commission by the party of the employment contract;
- On other labor disputes, the term of application to the conciliation commission is one year from the day when the employee or employer learned or should have learned about the violation of his right. договора;
In practice, there are often issues related to the correct calculation of the time limits for applying for the consideration of labor disputes, and the courts do not have complete uniformity in the interpretation and application of the rules of law.
Often, courts believe that the calculation of the timeframe for application starts with the day of signing the employment contract between the employee and the employer.
For example, the Employee concluded an employment contract with the Employer on January 1, 2016. In this regard, some courts believe that the period for processing the labor dispute ends on January 1, 2017. This is a misinterpretation and misapplication of the rules of law.
As it was said earlier, according to paragraph 2 of article 159 of the Labor Code of the Republic of Kazakhstan, the period of application to the conciliation commission is one year from the day when the employee or employer learned or should have learned about the violation of his right.
Suppose the situation when the Employee, not seeing the need for rest, did not go to the annual paid vacation in 2013. However, the Employee believed that the Employer would later pay him compensation for unused labor leave. In 2015, the Employee decides to quit and expects to receive all compensation for unused employment leave in 2013. The Employer refuses to pay compensation, referring to the missed period for application. Thus, the Employee found out about the infringed right only upon dismissal.
In this case, the period of application for the consideration of a labor dispute must be calculated from the day when the Employer refused to pay compensation to the Employee for unused labor leave.
Courts need to adhere to the principle of uniformity in the interpretation and application of the law, as often in practice, the courts may not give it proper attention.
The Zhylyoi District Court of the Atyrau region defined the correct interpretation and application of the law for the timeline for application for consideration of the labor dispute. Thus, by the ruling of the court of June 24, 2016, the court satisfied the claimant's claims in full on the payment of compensations due to employees for the periods 2009-2015.
According to the decision of the court, the plaintiff of the SE "Office of the State Labor Inspectorate of the Atyrau region" (hereinafter referred to as the Labor Inspectorate) filed a lawsuit against LLP "A" (hereinafter – the Company) for compulsory execution of the order.
From the explanation of the Labor Inspectorate, on February 26, 2016, five employees of the Company applied to the Labor Inspectorate with claims for possible violations of the labor legislation by the employer. The Labor Inspectorate, after checking the arguments of the appeal, issued a precept to the Company. According to the instruction of the Labor Inspectorate, the Company had indebtedness to five employees since 2009. Workers were set shift work method. Since 2009, the Company has owed to employees by (1) wages; (2) unpaid compensation for work on the days of inter-shift rest; (3) unpaid compensation for unused vacation.
The Labor Inspectorate asked the court to satisfy the claims and oblige the Company to pay the debts to employees for the above mentioned violations of labor legislation in the periods 2009-2015. However, the Company asked the court to refuse the claim, referring to the missed deadline for consideration of the labor dispute.
The court satisfied the Claimant's claim in full and ordered the Company to pay all compensation and arrears to employees for the periods 2009-2015.
In this regard, we believe that the courts should clearly adhere to the principle of uniformity of interpretation and application of the law in the administration of justice, since Article 438 of the Civil Procedure Code of the Republic of Kazakhstan provides for a basis for reviewing judicial acts on appeal, if the decision adopted violates such uniformity.
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