A dismissed employee has the right to go to court to protect and restore his rights. And, as a rule, if there have been violations of the dismissal procedure by the employer, then by a court decision, the employee is reinstated at his former workplace in his former position. Because, according to paragraph 1 of Article 177 of the Labor Code of the Republic of Kazakhstan, in the event of termination of an employment contract without a legal basis, the body considering an individual labor dispute makes a decision to reinstate the employee in his previous job.
Example
The Organization dismissed the Employee during the period of temporary disability due to staff reduction, which is unacceptable in accordance with Article 55 of the Labor Code of the Republic of Kazakhstan. The court, having considered the materials of the case, decides that the termination of the employment contract is illegal and the employee must be reinstated at work. At the same time, in favor of the reinstated employee, the Organization was charged with wages for the time of forced absenteeism, compensation for non-pecuniary damage and expenses for paying for the services of a representative.
WHAT IS IMPORTANT TO KNOW ABOUT THE REINSTATEMENT, AS WELL AS THE PAYMENT OF THE AMOUNTS AWARDED TO THE DISMISSED EMPLOYEE
The reinstatement of an employee at work requires strict adherence to all established deadlines and provisions stipulated by labor legislation.
The first thing to note is that the decision to reinstate an illegally dismissed employee is subject to immediate execution (paragraph 3 of Article 237 of the Civil Procedure Code of the Republic of Kazakhstan and paragraph 4 of Article 177 of the Labor Code).
Please note: Even if the Organization contests the decision of the court of first instance on restoration, it does not relieve it of the obligation to immediately execute it. Therefore, reinstatement at work is carried out immediately, without waiting for the decision to enter into force.
The satisfaction of the requirement for reinstatement in the previous workplace is always accompanied by the satisfaction of the requirement for the payment of wages for the time of forced absenteeism. This provision is provided for by paragraph 2 of Article 177 of the Labor Code of the Republic of Kazakhstan, which states that, reinstated in his previous job, the average wage is paid for the entire period of forced absenteeism or the difference in wages for the time of performing lower-paid work, but not more than six months.
Please note: Involuntary absenteeism is charged to the Organization and not to the responsible official responsible for the dismissal procedure.
Sometimes the satisfaction of the above requirements also includes the amount of compensation for moral damage, since illegal dismissal is nothing more than a violation of the constitutional right to work of a dismissed employee.
In accordance with the Code of Civil Procedure of the Republic of Kazakhstan, the decision to award a salary to an employee is also subject to immediate execution. But it is subject to immediate execution only in respect of the amount awarded to the employee for no more than 3 months.
Immediately after the decision is made by the court of first instance, a writ of execution will be issued to reinstate the dismissed employee. Also, in favor of the employee, a writ of execution will be issued to collect the debt from the Organization within 3 months, despite the fact that the decision has not entered into force and can be appealed by the Organization to the appellate and cassation instances. The amount exceeding the 3-month amount of the debt will be recovered only after the entry into force of the decision.
WE TAKE THE EMPLOYEE BACK. HOW TO GET A RESTORATION.
In order to properly document the reinstatement of a terminated employee, the Organization must:
- issue an Act to cancel the illegal dismissal order;
- issue a restoration order;
- make an appropriate entry in the work book of the employee (if any);
- make changes to the time sheet;
- issue an order to pay the employee the amounts awarded;
- allow the reinstated employee to perform their previous job duties.
ISSUANCE OF AN ORDER (INSTRUCTION) TO CANCEL THE DISMISSAL ORDER
Such an order or order is issued by the Organization in an arbitrary form, since a standard form has not been developed. It is not necessary to acquaint the employee with the order to cancel the order to dismiss the employee, since this is all just a preliminary stage of restoration.
ISSUING AN EMPLOYEE REINSTATEMENT ORDER
An order or order to reinstate an employee at work is also drawn up in free form. The order (instruction) must contain all the necessary details. The organization is obliged to familiarize the reinstated employee with this order against signature. Also, you should indicate the date of familiarization.
MAKING AN ENTRY IN THE WORK BOOK OF A REINSTATED EMPLOYEE
An entry in the work book is made in accordance with the Order of the Minister of Labor and Social Protection of the Population of the Republic of Kazakhstan dated 05.07.2007 No. 149-P "On approval of the form and rules for maintaining and storing work books" and in accordance with the Law of the Republic of Kazakhstan "On languages in the Republic Kazakhstan".
Entries in the work book are made by the first head of the Organization or an official authorized by him after the issuance of the relevant act of the employer and must correspond to its text.
In accordance with the said Order, adjustments are made by invalidating the entries and introducing the correct wording.
So, the procedure for making changes to the work book of a reinstated employee is as follows:
- In section 1, you must put down the following serial number.
- Section 2 indicates the date of restoration.
- An entry is made in section 3: “The entry under the number (indicate the entry number) is invalid, restored to the previous job.”
- In section 4, you need to write the reason for making the entry, the date and number of the act.
- The basis indicates the order or order of the employer.
Situation: Often, some Organizations mistakenly indicate as a basis a court decision for making an entry in the work book.
Please note: The court decision is the basis for the reinstatement of the employee at work and the issuance of an order, and not an entry in the work book. An entry in the work book must be made only on the basis of documents issued by the Organization.
MAKING CHANGES TO THE TIME SHEET
After issuing an order to cancel the dismissal order, issuing an order to restore, making an entry in the work book of the Organization, it is necessary to make changes to the time sheet. To do this, the Organization issues an order (instruction) to amend the time sheet on the basis of a court decision.
The time of forced absenteeism, if the dismissal of the employee is recognized as illegal, is noted in the report card as follows - PV (absenteeism is forced).
ISSUANCE OF AN ORDER TO PAY THE EMPLOYEE THE AMOUNTS AWARDED
Situation : As mentioned above, in accordance with the court decision, the Organization is obliged to pay the employee for forced absenteeism. Thus, from the above example of judicial practice, the court ordered the Organization to pay the reinstated employee wages for the period of forced absenteeism in the amount of about 200,000 tenge, 15,000 tenge in compensation for non-pecuniary damage and about 25,000 tenge in reimbursement of expenses for paying for the services of a representative.
The payment of the specified amounts to the employee is formalized by order (instruction). The basis will be the decision of the court. With such an order, it is imperative to familiarize not only the employee to whom payments are due, but also the employee responsible for the execution of this order, i.e. chief accountant.
ADMISSION OF THE REINSTATED EMPLOYEE TO THE PERFORMANCE OF PREVIOUS LABOR DUTIES
After completing all of the above actions by the Organization, the employee can start work. At this stage, the recovery of the employee is considered complete.
Please note: An order on the admission of an employee to perform work duties is not issued.
WHAT IF THE POSITION OF THE REINSTATED EMPLOYEE IS ALREADY OCCUPIED?
Often, a new employee is hired to take the place of a laid-off employee. In such a case, the Organization should offer the "newcomer" a similar vacancy. If there is no such position, then the employment contract with the new employee is terminated. Because, in accordance with paragraph 5 of paragraph 1 of Art. 58 of the Labor Code of the Republic of Kazakhstan, an employment contract is subject to termination in the event of the reinstatement of an employee who previously performed this work.
Do not miss the fact that the recovery procedure is under the control of the bailiff.
In this case, it will not be superfluous to find out about the stages of enforcement proceedings on a writ of execution on the reinstatement of a dismissed employee.
STAGES OF ENFORCEMENT PROCEEDINGS THAT EMPLOYERS SHOULD KNOW
1. INITIATION OF ENFORCEMENT PROCEEDINGS
In cases where the decision is subject to immediate execution, the enforcement document is sent to the bailiff directly by the court (clauses 1 and 3 of article 37 of the Law of the Republic of Kazakhstan "On enforcement proceedings and the status of bailiffs". After that, the bailiff initiates enforcement proceedings.
2. EXECUTION PROCEDURE
Since the restoration at the previous workplace must be executed immediately, the bailiff, after the initiation of proceedings on the case, must immediately go to the location of the debtor (Organization).
Please note: In accordance with Article 111 of the Law "On Enforcement Proceedings and the Status of Bailiffs", the requirement arising from labor relations (recovery of wages) refers to the requirements of the first priority. This means that the bailiff will pay off the debt prior to the Organization's obligations for other debts, if any.
3. TERMINATION OF ENFORCEMENT PROCEEDINGS
According to paragraph 2 of Article 105 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs", the execution of the decision to reinstate at work is considered completed from the moment the illegally dismissed employee is actually allowed to perform his previous duties, following the issuance of the employer's act on the cancellation of his illegal act on layoffs. On the actual admission of the employee to the performance of duties, the bailiff draws up an act with the participation of the employee, the employer and attesting witnesses.
WHAT THREATENS THE ORGANIZATION WITH A DELAY IN THE EXECUTION OF A DECISION TO REINSTATE AN EMPLOYEE
Do not delay the implementation of the decision to reinstate a dismissed employee.
So, in accordance with paragraph 1 of Article 105 of the Law "On Enforcement Proceedings and the Status of Bailiffs", in the event that the head of the organization fails to execute the executive document on reinstatement, the bailiff has the right to apply to the court:
- with a submission on the issuance of a decision on the payment of an average salary to an employee;
- with a submission on the issuance of a decision on the payment of the difference in wages for the entire time from the date of the decision to reinstate the employee to the day of its execution.
Also, the bailiff may apply to the court with a submission on the recovery of fines from the head of the Organization to the state revenue:
- in the amount of 5 MCI from individuals;
- in the amount of 10 MCI from legal entities.
Penalty is charged for each day of delay.
WHAT THREATENS THE ORGANIZATION WITH NON-EXECUTION OF THE COURT DECISION ON RESTORATION
CRIMINAL LIABILITY
The legislation provides for criminal liability for failure to comply with a court decision on reinstatement at work.
Thus, in accordance with Part 1 of Article 148 of the Criminal Code of the Republic of Kazakhstan, failure to comply with a court decision on reinstatement, as well as other violations of the labor legislation of the Republic of Kazakhstan, resulting in significant harm to the rights and legitimate interests of citizens, are punishable
- a fine in the amount of one hundred to two hundred monthly calculation indices
- or in the amount of wages or other income of the convicted person for a period of one to two months
- or deprivation of the right to hold certain positions or engage in certain activities for up to five years.
Note : Liability does not relieve the debtor from the obligation to perform the actions provided for by the executive document.
The execution of the decision to reinstate work and pay for forced absenteeism must be approached more carefully than in other cases of execution of decisions, since the legislation provides for very strict liability for the employer. Moreover, following all the rules of this procedure, the Organization will exclude the employee from re-applying to the competent authorities, thereby saving himself from unpleasant disputes.