RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE REPUBLIC OF UZBEKISTAN

of April 17, 1998 No. 12

About application by courts of the legislation regulating the termination of the employment contract (contract)

Due to the adoption on December 21, 1995 of the Labor code of the Republic of Uzbekistan, for the purpose of ensuring the correct and uniform application of the labor law and explanation of the questions arising at courts in the course of consideration of employment disputes, the Plenum of the Supreme Court of the Republic of Uzbekistan decides:

1. Draw the attention of courts of the republic that legislative and regulations about work employment relationships of the physical persons working according to the employment contract (contract) are governed (further - "employment contract") at the companies, in organizations, the organizations, the organizations of all patterns of ownership, and also at certain citizens.

2. The statement on disputes on recovery at work is filed a lawsuit directly in a month from the date of delivery to the worker of the copy of the order on the termination with it the employment contract.

The Davnostny terms established by the Art. of 270 shopping malls extend also to claims which are made by the prosecutor, trade-union committee or other representative body of workers.

3. The judge has no right to refuse adoption of the action for declaration based on the omission of term on presentation of the claim. Having recognized the reasons of the omission of term of limitation period valid, the court recovers this term. If the court, having comprehensively researched case papers, determines that term for the address with the claim is passed for the disrespectful reason, then it refuses the claim.

As claimants according to requirements about recovery at work are exempted from payment of the state fee, and production of evidence, confirming justification of the termination of the employment contract, is assigned by the law to the defendant (part two of Article of 111 shopping malls), return of actions for declaration about recovery at work on the bases provided in Item 7 parts one of Article 195 and Item 6 parts one of Article 189 GPK is not allowed.

4. By consideration of disputes on legitimacy of the termination of the employment contract in connection with the expiration of its term (the Art. of 105 shopping malls) courts need to pay attention to the following circumstances:

- whether reasonably the terminal employment contract was signed with the worker i.e. whether are considered in case of the conclusion of the agreement of the requirement of the Art. of 76 shopping malls;

- whether the work term caused in the agreement expired actually;

- whether the terms provided by parts two and the third Art. of 105 shopping malls during which the termination of the employment contract on this basis is allowed are observed;

- whether additional guarantees were provided to expectant mothers and women, the having children under three years in case of the termination of the employment contract in connection with the expiration of its term (the Art. of 237 shopping malls).

5. Draw the attention of courts that terminal employment contracts can be signed only when agreements cannot be sine die signed in connection with availability of the circumstances provided by the Art. of 76 shopping malls.

Circumstances in the presence of which the terminal employment contract can be signed with the worker are:

- nature of the forthcoming work when it is known that work for which accomplishment the worker is accepted after certain term cannot be continued for the objective reasons, i.e. it has urgent character;

- conditions of performance of work on which the worker is accepted. In this case work can have also permanent character, but conditions of its accomplishment make impossible the conclusion with the worker of the employment contract sine die (employment of other worker during labor and social leaves of the worker for whom according to the legislation the place of employment, etc. remains);

- interests of the worker i.e. when owing to those or other circumstances the conclusion of the terminal employment contract is caused by interests of the worker;

- other cases provided by the law.

It must be kept in mind that the list of circumstances provided in the Art. of 76 shopping malls when with the worker the conclusion of the terminal employment contract is allowed, is exhaustive. If the terminal employment contract without requirements of the Art. of 76 shopping malls was signed with the worker, then the condition about the term of the agreement is nullified, and the worker is deemed accepted sine die from the first day of work.

6. The termination of the employment contract according to part one of the Art. of 105 shopping malls is allowed both in day of the termination of its term, and within one week after agreement term.

The labor law does not provide obligation of the Party of the employment contract, decided to stop employment relationships in connection with the agreement expiration, previously to notify on it other party.

If after agreement term employment relationships proceed and any of the parties within one week did not demand their termination, then the employment contract is considered continued sine die.

The employment contract signed on absence period of the worker behind which the place of employment (position) remains stops from the date of return of this worker to work.

7. Before the expiration the terminal employment contract can be stopped by agreement of the parties (item 1 of the Art. of 97 shopping malls), at the initiative of the worker (the Art. of 99 shopping malls), at the initiative of the employer (part two of the Art. of 100 shopping malls), on the circumstances which are not depending on will of the parties (the Art. of 106 shopping malls).

The mutual obligation of the parties about payment of penalty in case of its early termination at the initiative of one of the parties can be provided in the terminal employment contract. In case of refusal its collection is made by one of the parties from payment of penalty judicially.

8. In case of the dispute resolution about payment of penalty it must be kept in mind the following:

- the condition about penalty can be included by agreement of the parties in contents only of the terminal employment contract;

- the size of penalty is determined by agreement of the parties and can be differentiated depending on the expenses incurred by the employer for the benefit of the worker worked the worker of term, etc. circumstances;

- the parties are exempted from payment of penalty if in the employment contract its size is not determined;

- the size of the penalty paid by the worker cannot exceed the size of penalty paid by the employer. At the same time the employment contract can provide payment of penalty by the employer in the increased size;

- payment of penalty by the worker is made only in case of early termination of the terminal employment contract on its initiative (the Art. of 99 shopping malls), and also at the initiative of the employer on the bases connected with guilty behavior of the worker (Items 3 and 4 of part two of the Art. of 100 shopping malls). Inclusion in the terminal employment contract of employee obligation to pay penalty in case of its early termination on other bases is recognized illegal;

- the employer pays to the worker penalty in case of early termination on its initiative of the terminal employment contract of the bases which are not connected with guilty behavior of the worker (Items 1, of 2, 5 and 6 parts two of the Art. of 100 shopping malls).

9. Draw the attention of courts that the worker is exempted from payment of penalty if the employment contract was ahead of schedule stopped on its initiative in cases when filing of application about the termination of employment relationships is caused by impossibility of continuation of work by it (transfer in educational institution, retirement, election on elective office, etc.). Because the Labor code (part five of the Art. of 99 shopping malls), contains only approximate list of the circumstances causing impossibility of continuation by the worker of work at this company, courts taking into account specific case papers can take into account and other circumstances (the state of health of the worker, need of care of the member of disabled family, the direction of the husband for passing of military service to other area, etc.) in the presence of which the worker can be exempted from payment of penalty.

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