Komron Tursunmurodov

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Khamida Abdulakhatova, an employee of “Aloqabank” in Namangan, was fired due to serving clients without adhering to the queue system, which is a violation of the internal labor regulations outlined in the company’s documents. Abdulakhatova filed a lawsuit, the details and results of which will be discussed in this article, arguing that she was acting in the clients’ best interest by ensuring their trust and minimizing wait times.

Employers often face challenges when terminating an employment contract. Mistakes in the termination process or paperwork can have significant legal repercussions, potentially leading to the termination being recognized as unlawful by a court. It is essential for employers to follow the correct procedures and documentation to ensure a smooth and legally sound termination process.

Article 161 of Uzbekistan’s Labor Code (from now on referred to as LC) sets forth five grounds for terminating labor relations with an employee at an employer’s initiative. Part five of this article – termination of an employment contract for a single gross violation by an employee of his work obligations – is the subject of this blog post. It analyzes the procedure of terminating an employment contract and gives step-by-step guidelines to employers on how to perform this procedure effectively.

Step 1. Determine what constitutes a one-time gross violation of work duties

According to Art. 162 of LC, one-time gross violations can be determined in three different acts:    

    a) internal labor regulations;

    b) an employment contract; and

    c) charters and regulations on discipline.

It is recommended that employers specify these violations in their internal labor regulations, as the absence of such specifications may prevent the termination of employment contracts under part 5 of Article 161 of LC (as per paragraph 30 of the Supreme Court Plenum’s resolution).  Failing to define what constitutes a one-time gross violation of an employee’s work duties in internal labor regulations could impede an employer’s ability to dismiss an employee. For instance, termination due to unexcused absenteeism (when an employee is absent at work without valid reasons) would not be permissible if it is not explicitly outlined in the internal labor regulations. The list of such violations should encompass all actions that are prohibited or deemed inappropriate. For example, in the internal labor regulations of “Aloqabank,” serving clients without adhering to the queue system was identified as a one-time gross violation of an employee’s work responsibilities.

Step 2. Ensure adherence to the principle of proportionality and strive to prevent the termination of an employment contract

The severity of a disciplinary offense is a crucial factor when imposing a disciplinary sanction. The court has the authority to deem the termination of an employment contract as unlawful under certain circumstances, such as when the severity of the misconduct was not properly considered, or when the employee’s overall performance and work ethic were not taken into account (as per paragraph 32 of the Supreme Court Plenum’s resolution). For instance, Abdulakhatova had a history of good performance and breached internal labor regulations with the intention of maintaining client trust and streamlining work processes due to high workloads.

For this reason, it is advisable that employers initially apply sanctions outlined in paragraphs 1, 2 of Art. 312 of LC (reprimand or fine) before resorting to terminating an employment contract. Termination of an employment contract is regarded as the most severe disciplinary action, so employers should strive to prevent such instances and offer employees an opportunity to correct their errors.

Step 3. Obtain the trade union’s consent

Termination of an employment contract at the employer’s initiative is not permitted without the prior consent of the trade union committee if such consent is provided for in a collective agreement (Art. 164). If the company’s collective agreement establishes the employer’s obligation to receive the consent before terminating an employment contract, then the employer must get the consent first. The employer has the right to terminate the employment contract no later than one month from the date the trade union committee grants consent (Art. 164 of LC). In Abdulakhatova’s instance, the employer failed to seek consent from the trade union committee, despite the obligation outlined in “Aloqabank’s” collective agreement.

Step 4. Request a written explanation

This is an important step since every disciplinary offense (the violation of labor discipline) should be substantiated with evidence. In the case of Abdulakhatova’s disciplinary offense, it was documented through surveillance footage. During court proceedings, “Aloqabank” presented video materials as proof. However, labor legislation obligates employers to request a written explanation from the employee (Art. 313 of LC). This explanation is required to assess whether the disciplinary offense was respectful. Unfortunately, some employees may refuse to provide explanations. In such instances, the refusal should be documented in a written report signed by witnesses present.

Step 5: Ensure compliance with the terms

Adherence to the specified terms is crucial when imposing disciplinary sanctions, particularly in cases involving the termination of an employment contract. Failure to adhere to these terms may lead to an unlawful termination. According to the first part of Article 314 of LC, employers are required to terminate an employment contract within one month of discovering an employee’s disciplinary offense. In cases where a disciplinary offense is uncovered through an internal investigation, the date of discovery is considered to be the day on which the investigative commission formalizes its findings in a report. For instance, if an employee, such as Abdulakhatova, commits a disciplinary offense on September 29, 2023, and it is identified on October 1, the date of discovery should be considered as October 1, which means an employer should apply a disciplinary sanction (in our case, terminate an employment contract) no later than November 2, 2023. 

Additionally, in accordance with the second part of the same article, employers have up to six months (or two years after audit results) following the date of the employee’s misconduct to terminate the employment contract. It is crucial for employers to distinguish between the two components of Article 314 of the Labor Code. The first part of the article emphasizes the date of discovery of the offense, while the second part focuses on the date of the offense itself. For example, if Abdulakhatova’s disciplinary offense is discovered on March 15, the employer must act within six months (until March 30) from the date of the offense, even if they had a full month to address the issue after discovery.

Step 6. Announce the decision of applying a disciplinary sanction

Employers should announce the decision which includes a disciplinary sanction (Art. 313). Notably, employers have only one month to apply disciplinary sanctions, and they must notify an employee within 3 working days under the employee’s signature. It is only after the employee signs the notification that they are considered informed. If an employee refuses to sign, their refusal should be documented in a report signed by witnesses. In this case, the employee is considered to be familiar with the order. In Abdulakhatova’s case, the defendant (bank) announced the decision in accordance with labor legislation.

Step 7. Issue a termination order for a one-time gross violation of the employee’s work obligations, clearly stating the reasons for dismissal.

When issuing a termination order for a one-time gross violation of an employee’s work obligations, employers must exercise caution and adhere to legal requirements. The termination order should reference the specific clause in the employment contract that justifies the termination of the contract (Article 170). Moreover, LC stipulates that when terminating an employment contract due to a one-time gross violation of labor duties by an employee, the employer’s order must additionally indicate a clause of the internal labor regulations. This means that employers must specify the exact one-time gross violation in a termination order. In the case of the defendant, the order appropriately specified the grounds for the employment contract termination.

Step 8. Return the employee’s necessary documents and finalize settlements.

On the day of termination of the employment contract, the employer is obliged to give the employee his or her employment record book or an extract from the electronic work book, as well as a copy of the termination order (Art. 171). If, on the day of termination of the employment contract, it is impossible to issue a work book or an extract from the electronic work book and a copy of the termination order to the employee due to employee’s absence or refusal to receive them, the employer is obliged no later than the next working day to send the employee a written notice about the need to collect a work book or authorize mailing. Furthermore, the employer must settle all financial matters with the employee (Article 172). This includes payment of outstanding wages, compensation for unused vacation days, and any other entitled payments as per labor laws or the employment contract.

These steps are crucial for employers as failure to adhere to them can result in a breach of the LC regulations. Violation of labor legislation norms can lead to accountability under the Administrative Liability Code of Uzbekistan (Art. 49).

Conclusion

In summary, it can be concluded that the termination procedure of an employment contract due to a one-time gross violation of an employee’s work duties is not as straightforward as it may appear. The steps outlined in this article serve to guide employers and enhance their adherence to the LC norms. Additionally, employers are advised to diligently observe deadlines, as failing to do so may result in the forfeiture of their right to terminate an employment contract.

In Abdulakhatova’s case against the “Aloqabank”, she won the case because the defendant failed to follow the termination procedure appropriately, thereby breaching the norms of labor legislation. 

Cite as:  Komron Tursunmurodov, “Abdulakhatova vs Aloqabank: Guidelines for employers for an effective termination of an employment contract due to employee misconduct”, Uzbekistan Law Blog, 01.07.2024.