Страницы

Статья

Dismissals of employees must be carried out in accordance with labor legislation..

On May 04, 2020, the President of the Republic of Kazakhstan signed the Law of the Republic of Kazakhstan No. 321-VI "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Labor Issues".
This legislation has resolved and excluded from the labor legislation the most important issue that concerns employees-dismissal without a valid reason. What's the big question? Before that, there was such a thing as "dismissal without a valid reason" in the labor legislation? ... If you want to know, let's look at the history of labor legislation.
According to paragraph 4 of Article 52 of the Labor Code of the Republic of Kazakhstan dated May 15, 2007 No. 251 (expired), by agreement with an employee, an employment contract may provide for the employer's right to terminate the employment contract without complying with the requirements set out in paragraph 2 of this Article, with a compensation payment in the amount of at least the average salary for the year.
What are the requirements provided for in paragraph 2 of this article? Notice of termination of the employment contract is sent by one party, that is, the employee or employer. The party that has received the notification is obliged to notify the other party in writing of the decision made within three working days. This means that if the employment contract is terminated by agreement of the parties, the employment contract cannot be terminated without the consent of both parties. The employer on the basis of the termination of the employment contract by agreement of the parties may not dismiss the employee without his consent.
However, in accordance with paragraph 4 of the above article 52, the employer, when hiring an employee, specifying a compensation payment in the amount of at least the average salary for 1 year to the employment contract, had the right to dismiss the employee by agreement of the parties without complying with the requirements of paragraph 2.
In this case, the employee, having signed the employment contract, also agrees to the terms specified in it, and the employer gets the right to dismiss without a valid reason, paying an average annual salary of 1 year.
Since 01.01.2016, the above-mentioned Labor Code of the Republic of Kazakhstan No. 251 of 15.05.2007 has become invalid, and instead of 23.11.2015, a new Labor Code of the Republic of Kazakhstan No. 414-V ZRK was signed.
In accordance with paragraph 3 of Article 50 of the Code, by agreement with the employee, the employment contract may provide for the employer's right to terminate the employment contract without complying with the requirements set out in paragraph 2 of Article 50 of the Code, with a compensation payment, the amount of which is determined by the employment contract.
The fact that the employee has signed an employment contract means that he has agreed to all the conditions provided for, including. Therefore, since the employment contract is the main document that precedes employment, I encourage future employees to read the employment contract and sign it only if they agree to the conditions provided for in it.
At the same time, as indicated above, since 04.05.2020, paragraph 3 of Article 50 has been excluded from the Labor Code of the Republic of Kazakhstan. The law of 04.05.2020 comes into force on May 16, 2020.
That is, the employer can no longer dismiss the employee on the basis of the employee's consent without a valid reason, specifying any compensation in the employment contract.
The changes are caused by the ambiguity and controversy of this provision, which was abused by individual employers. We believe that the best way to protect the interests of the employee would be to establish a minimum compensation threshold. However, as we can see, the legislator took a more strict path.
The Law of 04.05.2020 itself does not contain any provisions on the issues of its retroactive effect or its effect in time. As a general rule, namely, according to paragraph 1 of Article 43 of the Law of the Republic of Kazakhstan dated April 06, 2016 "On Legal Acts", the effect of a regulatory legal act does not apply to relations that arose before its entry into force. That is, the changes introduced by the Law of 04.05.2020 should not apply to labor relations that arose before its entry into force.
However, please note that according to paragraph 2 of article 43 of the Law on Legal Acts, the exception to the rule of paragraph 1 of Article 43 of the Law on Legal Acts is, among other things, the case when a normative legal act improves the situation of citizens.
We believe that the considered innovation improves the situation of citizens, and in this regard, the exception of paragraph 3 of Article 50 of the Code applies to labor relations that arose before the Law of 04.05.2020 came into force.
Recall that according to paragraph 2 of Article 10 of the Code, the provisions of agreements of the parties to social partnership, collective agreements, labor contracts, acts of employers that worsen the situation of employees in comparison with the labor legislation of the Republic of Kazakhstan are recognized as invalid and are not subject to application.
Thus, starting from May 16, 2020, the application of paragraph 3 of Article 50 of the Code will not be possible and employers should exclude this provision from employment contracts with their employees due to its further illegality.
In turn, we note that the termination of the employment contract by agreement of the parties, including when an agreement is reached on the payment of compensation (not within the framework of labor legislation, namely by agreement of the parties) remains possible and permissible. However, the employee's consent to comply with the procedure provided for in paragraph 2 of Article 50 of the Code, as well as the amount of compensation (if initiated by one of the parties) must be obtained and agreed upon already in the process of termination of the contract.
However, some employers did not proceed from these changes, and to date, the facts of illegal dismissal of employees are established by the Department of the State Labor Inspectorate of the Atyrau region. Therefore, I urge employers not to use grounds that worsen the situation of employees, and to dismiss employees in accordance with labor legislation.