Violation of labor rights is one of the most common reasons citizens apply to judicial authorities. In the Republic of Kazakhstan, labor relations are governed by the Labor Code, which serves as the primary document protecting the rights of both employees and employers.

In labor relations, employees and employers are granted mutual rights and obligations, which in practice are often violated by one of the parties.

Consequently, contradictions arise in the application of current labor legislation, for example, disputes regarding the reinstatement of an employee due to unlawful dismissal.

In studying this issue, the subject of proof occupies a significant place, as the essence of any procedural decision on a dispute is based precisely on reliable, relevant, and admissible evidence.

Reinstatement disputes have their own procedural features for consideration due to the various grounds for dismissal. Therefore, for each type, it is important to establish the specific circumstances that are relevant to the resolution of the particular case.

Thus, in accordance with subparagraph 16) of paragraph 1 of Article 52 of the Labor Code, one of the grounds for termination of an employment contract on the employer’s initiative is the repeated non-performance or repeated improper performance without valid reasons of job duties by an employee who has a disciplinary sanction.

A violation of labor discipline is considered as such only if it was committed at the workplace during working hours. For those employees who work on an irregular schedule, the entire period of presence at the workplace is considered working time.

According to Part 1 of Article 63 of the Civil Procedure Code of the Republic of Kazakhstan, evidence in a case is information obtained lawfully about facts, on the basis of which the court establishes the presence or absence of circumstances substantiating the claims and objections of the parties, as well as other circumstances relevant to the proper consideration and resolution of the case.

From the content of Article 64 of the Civil Procedure Code, it follows that evidence is recognized by the court as relevant to the case if it contains information about facts that confirm, refute, or cast doubt on conclusions about the existence of circumstances relevant to the case.

The process of proof in civil cases regarding reinstatement is closely linked to the aforementioned norms of the Civil Procedure Code.

Having studied judicial practice, it can be noted that the subject of proof in cases regarding reinstatement due to termination of an employment contract includes circumstances such as: the reasons for non-performance of job duties that led to the termination of the contract (valid or invalid), the employee’s fault in non-performance of job duties, the severity of the violations committed by the employee, the circumstances under which the employee committed the violations, the employee’s behavior prior to the misconduct, the systematic nature of the labor discipline violation, and the basis for imposing on the employee the duty that he or she failed to perform (job duties of employees are generally established in the employment contract, collective bargaining agreement, and internal labor regulations).

In accordance with paragraph 3 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated November 28, 2024, No. 1 “On Certain Issues of Application of Legislation by Courts When Resolving Labor Disputes” (hereinafter – the Normative Resolution of the Supreme Court), according to Article 159 of the Labor Code, an appeal by employees or persons previously in an employment relationship, or by the employer to the conciliation commission is a mandatory stage of the pre-trial settlement procedure for an individual labor dispute arising between them. If a party to an individual labor dispute disagrees with the decision of the conciliation commission in whole or in part, the dispute is considered unresolved, and the party disagreeing with the decision of the conciliation commission, as well as in the event of non-execution of the commission’s decision within the established time limit, has the right to apply to the court for resolution of the labor dispute.

Issues regarding a party’s compliance with the deadline for applying to the conciliation commission, the validity of the reasons for missing the deadline, and its restoration fall within the competence of the conciliation commission, regardless of whether a party to the individual labor dispute has filed a motion to restore the deadline.

The conciliation commission independently determines whether the reasons for which an employee, including one previously in an employment relationship, failed to apply to the conciliation commission within the established deadlines are considered valid.

At the same time, missing this deadline without valid reasons may serve as an independent ground for the conciliation commission to issue a decision refusing to satisfy the application without considering the merits of the dispute, which does not prevent a party to the individual labor dispute from applying to the court for protection of labor rights.

In this regard, when dismissing an employee on grounds provided for by the Labor Code, the organization must present to the court factual data confirming that the employee committed a violation or failed to perform job duties, as well as indicate the exact location and type of misconduct committed by the employee.

When considering a claim to declare an unlawful dismissal order invalid, the court must request and examine the internal labor regulations of the enterprise, the availability of evidence of the employee’s systematic non-performance of duties assigned by the employment contract or internal labor regulations, and also examine all evidence to render a fair, lawful, and well-founded decision that will not subsequently become the subject of appeal.

It should be noted that in labor law, as in administrative or criminal law, the presumption of innocence applies. That is, an employee is considered innocent until proven guilty. The burden of proving the employee’s guilt rests with the employer.

In particular, when considering labor disputes, the majority of the burden of proof rests on the employer, which is due to the need to protect the employee as the weaker party in the labor relationship.

For participants in labor legal relations who, in accordance with the Labor Code, have the right to apply to court without applying to the conciliation commission for consideration of individual labor disputes, the following deadlines are established:

– for disputes regarding reinstatement – three months from the date of delivery or sending by registered mail with return receipt of a copy of the employer’s act on termination of the employment contract;

– for other labor disputes – one year from the day when the employee, including one previously in an employment relationship, or the employer learned or should have learned of the violation of their right.

According to paragraph 4 of the Normative Resolution of the Supreme Court, if the court finds that the plaintiff’s labor rights have been violated, but the plaintiff has missed the deadline for applying to court for consideration of the individual labor dispute without valid reasons, as provided for by the Labor Code, the court shall indicate the violation of these rights in the reasoning part of the decision and deny the claim due to the missed deadline.

The court is not bound by the conclusions of the conciliation commission, and the individual labor dispute is resolved on the merits within the limits of the claims filed by the plaintiff.

Thus, the correct determination of the subject of proof and the presentation of all necessary evidence to the court is the key to a lawful, well-founded, and fair court decision.

Reinstatement of an employee requires strict compliance with all established deadlines and provisions stipulated by labor legislation.

It is important to remember that the responsibility for non-execution of a court decision rests directly with the employer, represented by the head of the organization.

Saltanat MAMANOVA,
Judge of the Auliekol District
Court of the Kostanay Region