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(ISSN
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2693-0803)
Published:
April 11, 2021 |
Pages:
1-9
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-01
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‘
ABSTRACT
The article highlights selected scholars’ opinions on the definition of the concept of labor case and
formulates its definition. Also, reviewed some issues of resolving labor cases on restoration of
employment and analyzed the practice of courts on implementation of court decisions in this regard.
In addition, the author focused on certain features of resolving of labor cases on restoration of
employment.
KEYWORDS
Labor dispute, restoration of employment, resolution of labor cases
INTRODUCTION
In Uzbekistan, the need to improve the legal
system to ensure effective protection of the
rights and freedoms of each and every person
is facilitated by the development of market
relations in line with continued consolidation
of democratization and renewal of society.
Features Of Consideration By Courts Of Labor Cases On
Reinstatement Of Employee
K.H. Mirsagatov
Deputy Head Of The Department Of The Prosecutor General’s Office, Independent
Researcher The Academy Of General Prosecutor’s Office Of The Republic Of Uzbekistan
Journal
Website:
http://usajournalshub.c
om/index,php/tajpslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
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(ISSN
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Pages:
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Pursuant to the Article 13 of the Constitution of
Uzbekistan, “Democracy in the Republic of
Uzbekistan shall be based on the principles
common to all mankind according to which the
ultimate value is a human being, his life,
freedom, honour, dignity and other inalienable
rights. Democratic rights and freedoms shall be
protected by the Constitution and laws” [1. 5].
According to Article 37 of the Fundamental
Law “Everyone shall have the right to work,
free choice of work, fair conditions of labour
and protection against unemployment in the
procedure specified by law”. As regards, the
judiciary plays a vital role in the effective and
full protection of labor rights. It is necessary to
ensure fair and timely consideration of labor
cases, especially cases on the reinstatement of
employees, and to further improve the
procedures for resolving cases in court. In fact,
large-scale judicial reforms across the country
have led to an increase in the workload of
courts of general jurisdiction in civil cases. This,
in turn, necessitates further improvement of
the legislation on civil proceedings and
procedural norms. This arises the need to study
of the theoretical and practical pecularirites of
consideration of such cases in courts, the
identification of key areas for improving the
procedural and legal regulation of civil cases in
this regard.
The society has been witnessing frequent
termination of employment contracts with
employees due to the course of globalization in
the economy, the expansion and growth of the
labor
market,
the
emergence
and
development of the private sector. In addition,
recent pandemics have negatively effected on
the occurrence of such instances.
The data reveals that, in 2018, the inter-district,
district (city) courts of civil cases considered
1,515 cases on reinstatement in the first
instance (and issued decision). As for 2019, this
figure was 1,658 cases.
In fact, number of cases in the inter-district,
district (city) courts of civil cases, which are
decided in the first instance, has been reducing
from year to year. The figure was 184,800 cases
in 2018, 160,830 cases in 2019, which means a
decrease by 23,970 cases [2. 3].
This demonstrates the urgency of improving
the legislation on ensuring the effective
protection of the labor rights of the parties to
the employment contract, as well as the study
of the procedural features of court
proceedings on reinstatement.
The forms of protection of the rights of the
parties enshrined in the civil procedure
legislation, which determine the procedure for
consideration and resolution of cases on
reinstatement, are based on the equality of the
subjects of legal relations and which belongs to
the specifics of civil law. Although the parties
(the employer and the employee) are
recognized as equal in labor relations, in the
course of litigation of labor cases in practice,
there arise issues related to the inequality of
the parties to the employment contract.
Such circumstances are obvious particularly in
the process of identification of evidence that is
important for resolving a labor dispute, their
submission to the court, the identification of
witnesses in the case, their impartial
explanations and testimony. In this regard, one
of the leading scholars on labor law
M.Yu.Gasanov, said that ‘the stability of society
depends in many respects on the success of
the balance between the interests of
employees and employers in the labor
legislation’ [3. 30]. Therefore, in order to
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consider and resolve cases on reinstatement in
a lawful and fair manner, it is proposed to
improve not only the Civil Procedure Code, but
also the Labor Code, strengthening additional
norms to protect the rights of employees.
THE MAIN FINDINGS AND RESULTS
For instance, some legal scholars, in particular
V.I. Martynenko, suggest that the the burden
of proving should be on employer in all types of
labor cases in order to eliminate the problem of
inequality in practice in the court proceedings
on labor cases [4. 7-10]. In this respect, M.M.
Mamasiddikov also focuses on this issue in his
works. According to him, the employer has
more opportunities to gather evidence, s/he
can create a database of evidence on labor
disputes, and the employee is subordinate to
the employer both in terms of service and
finance, and that this fact is evident in court
proceedings, especially if the employment
contract with the employee has not been
terminated. Thus, the scholar suggests that the
legislation should provide for certain benefits
to employees in this regard.
Article 15 of the Civil Procedure Code (CPC)
stipulates that the court has the right to take
measures in accordance with the law to
determine the facts of the case, the rights and
obligations of the parties in a comprehensive,
complete and impartial manner, not limited to
the materials and explanations provided. What
is more, the court shall explain to the persons
involved in the case their rights and
obligations, warn them of the consequences of
taking or not taking procedural action, and
render to persons participating in case
assistance in implementation of their rights.
However, the court, to determine the actual
circumstances in reinstatement cases, should
be able to gather evidence on its own initiative
in order to provide additional opportunities for
the employees, in particular, for the plaintiffs.
The court is obliged to take all measures in
accordance with the law to comprehensively,
completely and impartially determine the the
legal facts that are important for the case, as
well as consider the rights and obligations of
the plaintiffs in this category of cases.
For this purpose, the court is supposed to be
active in collecting and examining evidence on
its own initiative, assisting the parties in
exercising their rights by explaining their rights
and obligations, in particular the obligation to
present evidence and the right to participate in
their examination [5. 120]. According to Sh.Sh.
Shorahmetov,
the
peculiarity
of
civil
proceedings is that the courts have the right
not only to evaluate evidence presented by the
parties and other persons involved in the case,
but also to collect evidence on its own initiative
to determine the objective truth [6. 168].
D.A. Fursov noted that the court is obliged to
assist the parties in determining the evidence
and facts of the case, and stated that “in any
case, the court should direct and supplement
the activities of the parties to the dispute, but
not allow them to perform their duties
temporarily or conduct investigative actions”
[7. 430].
It should be noted that the jurisdiction of the
court in proving the case circumstances is
different and specific in the legislation of each
state.
For instance, in Germany, the court is obliged
to assist the parties in providing all the
evidence to substantiate the substantive and
procedural facts of the case by filing a claim (§
142 - 142, 146 Zivilprozessordnung). The court is
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also entitled to require the parties to provide
additional evidence on its own initiative
(§ 273 Zivilprozessordnung).
In Italy, the judge is authorized to set an
additional time limit for the submission by the
plaintiff of new evidence or a list of evidence,
not included in the initial statement of claim
(article 184 Condice di procedura civile). In
addition, the judge has the right to ask the
parties questions, appoint an expert, inspect
the person and request any information in
order to determine the location of the property
(articles 117, 118, 191 Condice di procedura
civile). In Belgium, the court has the right, on
its own initiative, to verbally question a witness
in order to establish the facts of the case, to
require the parties to appear in person for an
explanation, and to send inquiries about their
place of residence (art. 916, 992, 1007 Code
Judiciare) [8. 150, 199, 295, 334].
It is evident that according to civil procedural
legislation of European countries the judge has
broad powers to proof, in particular, to gather
evidence in a case. The Committee of Ministers
of the Council of Europe adopted a number of
recommendations for the improvement of
justice in civil and commercial matters
(Recommendation No. 81 (7) dated 14 May
1981, Recommendation No. 95 (5) dated 7
February 1995, Recommendation No. 84 (5)
dated 28 February 1994) and the Principles of
Civil Procedure [9], the general direction of
which is to simplify court proceedings and
increase their accessibility, flexibility, speed
and reliability. These recommendations reflect
the court’s active authority to gather evidence
in the case.
For example, Recommendation 84 (5) states
that “The court should, at least during the
preliminary hearing but if possible throughout
the proceedings, play an active role in ensuring
the rapid progress of the proceedings, while
respecting the rights of the parties, including
the right to equal treatment. In particular, the
court should have powers to order the parties
to provide such clarifications as are necessary”
(Principle 3).
Notably, the inequality of opportunities for
litigation in employment cases can also be
expressed by the fact that witnesses in this
category of cases may be mainly managers of
different levels, specialists, accountants and
other employees working in the organization.
In most cases, the employer will try to
substantiate his/her objections to the
employee’s claim in court with the testimony
of the above witnesses who are subordinate to
the service. Because it is natural that almost all
individuals who witness the current situation in
a labor dispute are under the influence of the
employer. It is clear that other employees are
reluctant to testify against the administration
for certain reasons.
The analysis indicates that our national Labor
Code does not contain a special norm that
determines the procedure and deadline for the
employer to provide other documents related
to employment to the employee. Taking into
account the fact that the period for an
employee to apply to the court on
reinstatement is one month only, that is, a very
short time, and to ensure that the employee
has the same opportunity as the employer to
collect evidence on the case, we propose a
supplement to the Article 108 of the Labor
Code in the following content: based on the
written application of the employee (including
former employee), the employer is obliged to
submit a copy of the employment-related
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documents not later than three days from the
date of submission of the application (a copy of
the employment order, transfer orders,
workbook or a copy of the workbook, salary
statement, a copy of the order on termination
of the employment contract, etc.), and the
copies of these documents must be approved
in the prescribed manner and provided to the
employee at no cost.
Cases are initiated in civil proceedings mainly
on the basis of applications from persons who
have applied for protection of their rights or
legitimate interests.
Based on the reports of the Prosecutor
General’s Office in this area [10], during the
past period, a total of 1,742 civil cases of this
category were heard in the courts, of which
1,738 or 99.7% were attended by prosecutors.
Of these, 761 civil cases were satisfied, 842
were rejected, 118 were terminated, 472 were
considered on appeal, 80 decisions were
annulled or changed.
With regard to the appellate or annulled court
decisions, 59 were due to prosecutorial
protests.
In respect of cassation instance, 233 civil cases
were considered in cassation, of which 43
decisions were annulled or changed.
On the basis of prosecutorial protests 35 court
decisions were annulled or changed in the
cassation instance.
For instance, the Yangikurgan inter-district
court found that the Chartak district branch of
JSC “Halk Bank” did not obtain the consent of
the trade union committee, based on the
Article 100, Part 2, Clause 1 of the Labor Code,
concerning the dismissal of S.Kuchkarov - the
chief specialist of the bank’s retail services
department (on 01.06.2019). However, despite
the above violation of LC rules, the
Yangikurgan court decided (on 16.08.2019) to
reject the application of S. Kuchkarov on
reinstatement.
Another example is that, N.Yusupova and
others, who were hired by Ideal Nukus LLC for
an indefinite period of time, were illegally
dismissed on the grounds that their
employment contracts had expired, but the
Nukus inter-district court rejected their claims
for reinstatement.
A similar situation was allowed by the inter-
district courts of Samarkand city (2), Asaka,
Khatirchi, Mirzo Ulugbek, Mirabad, Margilan
and Gulistan (1 each).
According to Article 5 of the Civil Procedure
Code of Uzbekistan, a civil case is formulated
by the court on the basis of cliaimed
documents (by court) and court documents
submitted or requested by the parties to the
case, as well as other participants in civil
proceedings.
It should be noted that, there are individuals in
the process who enter the process initiated by
other parties and are as interested as the
parties in resolving civil cases. These individuals
are referred to as third parties in civil
proceedings because they are the third party
on the account after the plaintiff and the
defendant.
According to the definition given by the legal
encyclopedia, third parties are persons who
protect their rights and legally protected
interests in a civil case initiated by other
persons (parties) in civil proceedings [11. 399].
Pursuant to the Article 39 of the CPC, third
parties are considered (included) as persons
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involved
in
the
case.
According
to
Sh.Shorakhmetov, the interests of such
persons are considered to be legal interests, as
the court decision on the case affects their civil
substantive rights to some extent, as a result of
which the case is resolved in court, they have
certain rights or obligations, so they may enter
(interfere) with a civil case initiated for defense
purposes or be involved by a court to
participate in the initiated proceedings [12. 66].
Third parties involved in civil proceedings are
divided into the following two types,
depending on the content of their interest in
the resolution of the case and the
consequences of the decision on the case:
1)
Third parties who file an independent
claim regarding the subject of the case;
2)
Third parties who do not file an
independent claim regarding the
subject of the case.
The civil procedure legislation of our country
provides for the involvement of third parties in
the case of reinstatement, among the
peculiarities of involvement of third parties in
the judicial process.
In particular, according to
Article 184 of the
Civil
Proceedure
Code
,
in
cases
of
reinstatement
of
employees
whose
employment contract was illegally terminated
or who illegally transferred to another job, the
court must involve on its own initiative the
official who ordered the termination of the
employment contract or transfer to participate
in the case as a third party.
If the court finds that the termination of the
employment contract or transfer to another
job was made in clear violation of the law, in
the process itself the guilty official is obliged to
compensate the organization for damages
caused by mandatory absense from work or
low-paid work. In such cases, the amount of
the reimbursement from the official shall be
determined by the labor legislation [13].
According to M.M. Mamasiddikov, the
intended purpose of the introduction of this
rule was the following: when the court finds
that the termination of the employment
contract or transfer to another job was clearly
unlawful, in the same process, the court shall
impose the obligation on the official to
compensate the employer for the damage
caused as a result of which the official had to
pay the employee for a compulsory absense
from work or for the given low-paid job [14. 28.
32].
In our opinion, to protect the labor rights of
employers and employees, as well as the public
interest, the court, without the request of
other persons, on its own initiative, can involve
the official of the enterprise to participate in
the work and may impose an obligation on the
him/her to compensate the employer for the
damage caused in connection with the
payment of wages for the period of
compulsory termination.
This responsibility of the official before the
employer is not a form of civil liability, but a
type of independent liability provided for in
labor law. In resolving this issue of liability, the
courts must pay special attention to the fact
that the termination of the employment
contract or transfer to another job occurred
only as a result of clear violation of the law [15].
Involvement of officials in the process of labor
cases as a third party is an important factor in
the effective fight against related vilations,
grave violations of labor legislation by officials,
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as well as for rapid and complete resolution of
cases.
Involvement of officials in the process as a
third party in labor matters, in turn, is an
important factor in the rapid and complete
resolution of labor disputes, an effective fight
against gross violations of labor legislation by
officials.
In practice, some measures that impose
responsibility on the officials of the
organization can be the involvement in the
process of officials who have illegally
terminated employment contract or officials
who have ordered the transfer to another job
in disputes on reinstatement and rules on the
imposition of material liability on them.
However, it would not be an exaggeration to
say that the fact that labor legislation imposes
restrictions on the liability of an official guilty of
illegal termination of an employment contract
or illegal transfer of an employee to another
job is a factor in the increase of such cases in
practice.
Practically, according to Article 274 of the LC,
the amount of compensation paid by an official
to compensate the damage to the employer
should not exceed the amount of the official’s
three-month salary.
Here arises a question that why the material
liability of an official is limited by law. The legal
literature published in the former Soviet Union
states that the limits of the financial
responsibility of officials before the employer
stem from the purpose of this responsibility,
and that the financial responsibility of officials
consists in the performance of more
educational tasks [16]. However, in today’s
market economy, these ideas do not meet
today’s requirements. This norm in the national
Labor Code was present in the labor legislation
of the former Soviet Union, and now such a
norm is completely abandoned in the labor and
civil procedural legislation of the CIS member
states. That is, in such cases officials are subject
to full financial responsibility.
CONCLUSION
In conclusion, it is necessary to strengthen the
liability of officials who illegally dismiss
employees or transfer them to another work.
This helps to prevent violations of labor
legislation, illegal dismissals and transfers, as
well as harm to employers. The official found
guilty of illegally terminating an employment
contract or illegally transferring an employee
to another job must be subject to full financial
responsibility.
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