Navigating employment termination in Kazakhstan requires careful adherence to the country's Labor Code to ensure compliance and avoid potential disputes. Both employers and employees have specific rights and obligations that must be respected throughout the termination process. Understanding the legal framework is crucial for managing workforce changes effectively and lawfully.
The process involves various steps, including providing appropriate notice, calculating and paying severance where applicable, establishing valid grounds for dismissal, and following strict procedural requirements. Employers must be diligent in documenting each stage of the termination to demonstrate compliance with the law, protecting themselves against claims of wrongful dismissal.
Notice Period Requirements
The required notice period for terminating an employment contract in Kazakhstan depends on the grounds for termination and the specific terms agreed upon in the employment contract, provided they do not offer less favorable conditions than the Labor Code.
Generally, the minimum notice period for termination initiated by the employer on grounds such as redundancy or liquidation is one month. However, the employment contract or a collective agreement may stipulate a longer notice period.
For termination initiated by the employee, the standard notice period is one month. This period can be shorter if agreed upon by the parties or if the employee is unable to continue working due to valid reasons (e.g., health issues, relocation).
Termination for disciplinary reasons or other specific grounds may not require a notice period, allowing for immediate dismissal following the correct procedure.
Severance Pay Calculations and Entitlements
Severance pay entitlements in Kazakhstan depend primarily on the grounds for termination. Severance is typically mandated for terminations initiated by the employer due to reasons not related to the employee's fault.
Common grounds triggering severance pay include:
- Liquidation of the employer.
- Reduction in the number or staff of employees (redundancy).
- Decrease in the volume of production, work, and services, leading to a deterioration of the employer's economic state.
- Employee's refusal to transfer to another locality together with the employer.
- Employee's refusal to continue working due to changes in working conditions.
The standard severance pay calculation is based on the employee's average monthly wage. For terminations due to liquidation or redundancy, the minimum severance pay is typically one average monthly wage. However, the employment contract or a collective agreement may provide for higher severance payments.
For other grounds requiring severance, the amount may vary, often calculated based on a specific number of days' or weeks' average wage, depending on the length of service or other factors specified in the Labor Code or the employment agreement.
Grounds for Termination
The Labor Code of Kazakhstan specifies exhaustive grounds upon which an employment contract may be terminated. These grounds can broadly be categorized as initiated by the employer, initiated by the employee, or based on circumstances beyond the parties' control.
Termination Initiated by the Employer (With or Without Cause):
- Without Cause (Employer's Initiative, often requiring severance):
- Liquidation of the employer.
- Reduction in the number or staff of employees (redundancy).
- Decrease in the volume of production, work, and services, leading to a deterioration of the employer's economic state.
- Employee's refusal to transfer to another locality together with the employer.
- Employee's refusal to continue working due to changes in working conditions.
- Employee reaching retirement age.
- With Cause (Employee's Fault, typically no severance):
- Failure to pass the probationary period.
- Employee's repeated failure to perform labor duties without valid reasons, if the employee has a disciplinary penalty.
- Employee's absence from work without valid reason for three or more consecutive hours during a working day.
- Employee being in a state of alcoholic, narcotic, or toxic intoxication during the working day.
- Employee's refusal to undergo a medical examination or pre-shift medical examination if required by law.
- Violation of labor safety rules or fire safety rules that entailed or could entail grave consequences.
- Theft or intentional destruction/damage of employer's property.
- Disclosure of state secrets or other legally protected secrets.
- Commission of immoral offense incompatible with continuation of work (for employees performing educational functions).
- Submission of false documents or information upon conclusion of the employment contract.
Termination Initiated by the Employee:
- Upon expiry of the notice period (usually one month).
- Without notice if the employer violates the terms of the employment contract or labor law.
- By agreement of the parties.
Termination Due to Circumstances Beyond the Parties' Control:
- Expiry of the employment contract term.
- Transfer of the employee to another employer with their consent.
- Employee's refusal to transfer to another job due to health condition.
- Entry into legal force of a court sentence restricting the employee's ability to perform work.
- Employee's death or declaration of death by court.
- Recognition of the employee as incapable or partially capable by court.
- Other grounds specified in the Labor Code.
Procedural Requirements for Lawful Termination
Terminating an employment contract in Kazakhstan requires strict adherence to procedural steps to be considered lawful. Failure to follow the correct procedure is a common pitfall leading to wrongful dismissal claims.
Key procedural requirements include:
- Establishing Valid Grounds: Ensure the termination is based on one of the grounds specified in the Labor Code.
- Providing Notice: Issue written notice to the employee within the legally required timeframe (e.g., one month for redundancy), unless the grounds allow for immediate dismissal. The notice must clearly state the reason for termination and the effective date.
- Issuing an Employer's Act: Prepare a formal order or act of the employer documenting the termination. This document must reference the specific ground for termination from the Labor Code.
- Documentation: Collect and properly file all relevant documents, such as the notice, the employer's act, documents supporting the grounds for termination (e.g., disciplinary reports, medical certificates, redundancy plan), and proof of delivery of the notice and act to the employee.
- Final Settlement: Calculate and pay all amounts due to the employee on the last day of employment. This includes salary for time worked, compensation for unused annual leave, and severance pay if applicable.
- Issuing Work Book/Certificate: Return the employee's work book (if applicable) or provide a certificate of employment on the last day of work, containing information about the employment period and the grounds for termination.
- Notification to Authorities: In certain cases, such as mass redundancies, the employer may be required to notify the local employment authorities in advance.
For terminations based on employee misconduct, additional steps are required, including conducting an investigation, requesting a written explanation from the employee, and issuing a disciplinary penalty before termination.
Employee Protections Against Wrongful Dismissal
Kazakhstan's Labor Code provides significant protections for employees against unfair or unlawful termination. Employees who believe they have been wrongfully dismissed have the right to challenge the termination.
Key protections and recourse options include:
- Right to Challenge: An employee can file a complaint with the state labor inspectorate or file a lawsuit in court to contest the legality of the termination.
- Reinstatement: If a court finds the termination unlawful, it can order the employer to reinstate the employee to their previous position.
- Compensation for Forced Absence: In case of unlawful dismissal and subsequent reinstatement, the employer is typically required to pay the employee compensation for the period of forced absence from work.
- Strict Procedural Requirements: The requirement for employers to strictly follow the procedural steps outlined in the Labor Code acts as a protection, as procedural errors can render a termination unlawful, even if the grounds were valid.
- Restrictions on Termination: The Labor Code imposes restrictions on terminating certain categories of employees, such as pregnant women, women with children under three years old, single parents raising children under fourteen (or a disabled child under eighteen), and other persons raising specified categories of children without a mother, except on specific grounds like liquidation of the employer or gross misconduct.
Employers must be meticulous in ensuring both the substantive grounds for termination and the procedural steps comply fully with the Labor Code to mitigate the risk of successful wrongful dismissal claims.
