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Employment termination for committing violations in Uzbekistan
No company is immune from facing an employee who periodically or frequently violates labor discipline. Even a single violation by an employee can entail serious negative consequences for the employer company. In such cases, the employer has to decide to dismiss such an employee, and the dismissal procedure is not easy and has certain requirements that the employer shall comply with in order to break up with the violating employee.
Labor Code of Uzbekistan (hereinafter - the Labor Code) stipulates following grounds for termination of an employment contract with an employee: 1) mutual agreement of the parties to the employment contract; 2) expiration of the employment contract; 3) termination of the employment contract at the employee’s initiative; 4) termination of the employment contract at the employer’s initiative; 5) employee’s refusal to continue working because of changing the company’s ownership, or company’s reorganization; 6) employee’s refusal to continue working under new employment conditions; 7) employee’s refusal to relocate to another region (city) together with the employer; 8) employee’s refusal on transferring to another position (job) for health reasons in accordance with his/her medical report, when the employer does not have an appropriate job for him/her; 9) circumstances beyond the control of employer and employee; 10) failure to be elected for a new term or refusal to participate in election, competition; 11) other grounds provided for in employment contract, in cases where the Labor Code or other Uzbek laws allow inclusion of such additional grounds in employment contracts with certain categories of employees.
The best option for terminating an employment contract is to come to an agreement with the employee and terminate his employment contract by mutual agreement. However, this is not always possible and sometimes it is necessary to dismiss the employee against his will (without obtaining his consent).
As a general rule, termination of an employment contract at the employer’s initiative shall be justified, which requires one of the following grounds: 1) liquidation of the company (or its separate division - branch, representative office, etc.) by decision of its shareholders; 2) change in the number of company employees (or company’s separate division), due to changes in technology, organization of production and labor, reduction in work load (products, services); 3) unsuitability of the employee in his/her position due to insufficient qualifications; 4) systematic violation by the employee of his work duties; 5) a single gross violation by the employee of his work duties; 6) other grounds established by the Labor Code.
In this article, we will review options for employment termination at the employer’s initiative due to violation(s) of labor duties by the employee. The violation may be systematic or a single gross violation.
A systematic violation of labor duties is a repeated commission by an employee of a disciplinary offense within a year from the date of bringing the employee to disciplinary or material liability or applying to him/her measures of influence stipulated by labor legislation and other legal acts on labor for a previous violation of labor duties.
It should be noted that the basis for termination of an employment contract for a systematic violation of labor duties is recognized as a repeated commission by the employee of a disciplinary offense within a year after bringing the employee to disciplinary or material liability or applying to him/her other measures of influence in the established manner.
Termination of an employment contract on the above grounds may be recognized by the Uzbek court as illegal if during the trial it is established that the disciplinary sanction previously applied to the employee was prematurely lifted (i.e. before the expiration of 1-year period from the date of its imposition) in the manner established by labor legislation and other legal acts on labor.
If, despite the disciplinary sanction imposed for the misconduct, the employee being held financially liable or other measures of influence being applied to him, the employee continues to violate the work duties assigned to him, then the employer is entitled to impose a new disciplinary sanction on the employee, including terminating the employment contract with him.
A single gross violation of work duties may be an act that may entail serious consequences for the employer. The list of such violations should be established by the employer in: 1) internal labor regulations/policies (ILR); 2) an employment contract with certain categories of employees (with company managers, employees of micro-firms, domestic workers); 3) in the regulations and policies on discipline in relation to certain categories of employees.
When determining the list of single gross violations, employers shall take into account the severity of the offense and the consequences that this offense may entail.
It is not allowed to terminate an employment contract with an employee for a single gross violation if: - the organization does not have ILR; - the procedure for approving ILR established by law has been violated; or - the ILR does not contain a list of gross violations of work duties, for a single commission of which the employment relationship with the employee may be terminated.
For example, the list of gross violations may include: - absence at work without a valid reason; - coming to work while being intoxicated with alcohol, drugs or toxic substances, which is confirmed by eyewitnesses and a medical report; - theft of company property, confirmed by eyewitnesses; - committing an immoral offense by an employee who performs educational work functions (applicable at schools, institutes, universities and etc); - gross violation of production technology or safety precautions, which led to a threat to the life or health of employees; - a violation that resulted in material damage, the amount of which the employer has determined in advance; - disclosure of commercial secrets; - guilty actions of an employee handling monetary and/or commodity values, if these actions are grounds for loss of trust on the part of the employer.
The Internal Labor Regulations of an organization may provide for both offenses, for a single commission of which the termination of an employment contract with any employee of the organization is permitted (for example, absence at work without a valid reason, idleness during the entire working day, showing up or being at work in a state of alcoholic, narcotic or toxic intoxication, theft of the employer's property, etc.), and offenses, for a single commission of which the employment relationship may be terminated only with certain categories of employees (for example, disclosure of commercial secrets, failure by an employee directly handling monetary or commodity values to ensure the safety of these values, creating a threat to their safety or violating the rules for their handling, committing an immoral offense by a person performing educational functions, etc.).
Termination of an employment contract for a systematic or single gross violation is a disciplinary sanction. The employer should take into account that disciplinary sanctions may be applied for failure to perform or improper performance by an employee of his or her assigned work duties as a result of his or her illegal actions (i.e. violation of internal regulations, job descriptions, policies, legal orders of the employer, technical rules, etc.).
However, the following will not be considered a violation of work duties and cannot serve as grounds for applying disciplinary action: - an employee's refusal to perform the work to which he was illegally transferred; - an employee's refusal to continue working under new working conditions; - an employee's refusal to follow an employer's order on an issue that can only be resolved with the employee's consent (for example, an employee's refusal to comply with the employer's demand to recall from vacation or to transfer vacation to another date (period), to involve in overtime work, the refusal of a pregnant woman or one of the parents (a person replacing the parents) of a child under 14 years of age (a child with a disability under 16 years of age) to work at night, on weekends, or from going to a business trip); - refusal of the employee with a disability to work at night or on weekends; - an employee's refusal, for the purpose of self-defense, to perform work that directly threatens his life and health.
The employer is entitled to carry out investigation in order to check (confirm) the employee's commission of a disciplinary offense, to identify the employee's guilt in committing it, the reasons and conditions that contributed to the employee's commission of a disciplinary offense. The employer's decision to conduct investigation shall be formalized by an order (resolution) indicating the commission members for conducting investigation. If the employee does not agree with the decision of the official investigation results, he is entitled to appeal this decision in court as prescribed by the law.
Terms for applying disciplinary sanctions
A disciplinary sanction should be applied immediately after discovery of a disciplinary offense, but no later than 1 (one) month from the date of its discovery. This period does not include periods of temporary disability of the employee («being on sick leave») or being on vacation. The day of discovery of a disciplinary offense revealed as a result of an official investigation is considered to be the day the commission signs the act on the results of the official investigation.
A disciplinary sanction may be applied no later than 6 (six) months from the date of the disciplinary offense, and based on the results of an audit or inspection of the financial and economic activities or an audit of the company - no later than 2 (two) years from the date of its commission. The specified terms do not include the time of criminal proceedings.
Termination of an employee's employment contract for a systematic or single gross violation shall not be permitted after expiry of the above-mentioned periods established for imposing disciplinary sanctions.
When calculating the monthly period from the date of detection of the offense established for the application of a disciplinary sanction, the following shall be taken into account: - the day of detection of the offense, from which the monthly period begins, is considered to be the day when the head of the organization (employer), his deputy, the head of the structural subdivision (department) or other official to whom the employee is subordinate became aware of the offense, regardless of whether this official is vested with the right to impose disciplinary sanctions; - by virtue of the law, only period of temporary disability of the employee or his stay on vacation is not counted in the monthly period established for the application of a disciplinary sanction. The absence of an employee at work for other reasons, including in connection with the use of rest days (time off) regardless of their duration (for example, with a shift method of organizing work), does not interrupt the flow of the specified period; - leave that interrupts the flow of a monthly period should include all leaves granted to the employee in accordance with labor legislation and other legal acts on labor, as well as an employment contract, including annual basic and additional leaves, study leaves, leaves without pay, creative leaves, leaves with partial retention of wages, etc.
Special conditions for dismissal of a certain category of employees
In case of termination of an employment contract at the employer’s initiative with graduates of schools, lyceums, as well as universities and institutes, who studied on state grants (i.e. received governmental scholarship), who were hired for the first time within 3 (three) years from the graduation date from the relevant educational organization, before the expiration of 3 (three) years from the date of conclusion of the employment contract, the employer shall notify the local labor authority about this in writing.
Termination of an employment contract with employees under 18 (eighteen) years of age at the employer’s initiative is not allowed without obtaining the consent of the local labor authority .
Also, the Labor Code stipulates the following prohibitions on terminating an employment contract at the employer’s initiative: - during temporary disability of the employee (sick leave); - during employee's vacation; - during employee's stay on a business trip; - during the release of the employee from work in connection with performance of his state or public duties; - without compliance with the requirements providing for guarantees for pregnant women and employees with a child under 3 (three) years of age.
It is also prohibited to terminate an employment contract concluded at the previous place of work during secondment of the employee to another employer.
Procedure for applying disciplinary sanctions (termination of an employment contract)
First, before applying disciplinary sanctions (i.e. issuing an order (resolution) to terminate an employment contract), the employer shall request a written explanation from the employee, including when the disciplinary offense was discovered as a result of an internal investigation. The employee's refusal to provide a written explanation shall not be an obstacle to applying a disciplinary measure for the offense committed. If the employee refuses to provide a written explanation, the employer shall draft and sign an act with the participation of 2-3 other employees of the company (witnesses).
Second, the employer shall obtain preliminary consent for dismissal from the trade union committee. This is mandatory only if obtaining such consent is stipulated in the company’s collective agreement (an agreement between the employer and employees). However, the consent of the trade union committee shall not be required for terminating an employment contract at the employer’s initiative with general manager (general director, director) of the company or the head of a separate division of the company (branch, representative office).
Third, the employer shall notify the employee on dismissal decision. The dismissal notice shall be sent to the employee in writing 3 (three) days before the employment contract termination.
Fourth, the employer shall execute an order (resolution) on terminating the employment contract in connection with a systematic violation or a single gross violation by the employee of his/her work duties.
Fifth, the employer shall familiarize the employee with the above order (resolution) in writing and give him/her a copy of the order. If the employee refuses to familiarize himself/herself with the order and/or initial the order, then a refusal report (act) should be drawn up. In this case, a copy of the order can be sent by registered mail to the employee's home address.
Sixth, the employer shall make a final settlement with the employee and give him/her the work record book (or an extract from the electronic work record book).
Ryskiyeva & Partners Law Firm
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