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Publication date: 17.04.2024
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The liquidation of the enterprise is actually the termination of its existence. Liquidation is possible by a decision of the owners of the enterprise or a body authorized by it, or by compulsion by a court decision.
In case of liquidation of the enterprise, the following processes are regulated simultaneously:
The Economic Code of Ukraine (hereinafter — GKU) — guarantees the provision of freedom of entrepreneurial activity;
The Code of Labor Laws of Ukraine (hereinafter referred to as the Labor Code) is aimed at enhanced protection of the interests of employees and, in particular, at protection against unjustified dismissal.
Article 104 of the Civil Code of Ukraine (hereinafter referred to as the Civil Code of Ukraine) defines that a legal entity is terminated as a result of reorganization (merger, merger, division, transformation) or liquidation. In the context of dismissal, it does not matter how the liquidation takes place: by decision of the founders or by court decision.
Pay attention! The procedure for dismissing employees in connection with a reduction in the number or staff and in case of liquidation of the enterprise are almost the same.
Read also: Do employees of pre-retirement age have a preferential right to remain at work in case of layoffs
Rights of the business entity in case of liquidation of the enterprise
In case of liquidation of the enterprise, all the rights of the business entity are terminated, and obligations must be fully fulfilled within the liquidation procedure at the expense of the enterprise's assets. Remaining assets, if any, are distributed among the participants of the legal entity, unless otherwise established by the founding documents.
Protection of employees in case of liquidation
The term "complete liquidation" was introduced in the Labor Code.This term was introduced in order to protect employees from dismissal during the so-called "sham" liquidation, when the property, rights and obligations of the enterprise pass to legal successors.
Thus, at the initiative of the employer, only in case of complete liquidation of the enterprise (without legal successors), the categories of employees specified in the third part of Article 40, the third part of Article 184, Article 1861 and the fourth part of Article 252 of the Labor Code may be dismissed.
This is, in particular, the release of pregnant women and women who have children under the age of three (up to six years - part six of Article 179 of the Labor Code), single mothers in the presence of a child under the age of fourteen or a child with a disability, which is not allowed at the initiative of the employer, except for cases of complete liquidation of the enterprise, when dismissal with mandatory employment is allowed.
Read also: Case for HR. Payments in case of termination of the employment contract due to downsizing
Mandatory employment of these women is also carried out in cases of their dismissal after the end of a fixed-term employment contract. For the period of employment, their average salary is kept, but not more than three months after the end of the fixed-term employment contract.
Unfortunately, the legislation does not contain a legal mechanism for the employer to implement the obligation to employ certain categories of employees in case of liquidation of the enterprise.
Therefore, it will not become a problem unless there are suitable vacancies at other enterprises of the owner.Read also: Is it legal to reduce staff or the number of employees during martial law? Responds to State Labor
According to Articles 105 and 111 of the CCU, the powers to manage the affairs of a legal entity, including the dismissal of employees of a terminated legal entity, are transferred to the liquidation commission (liquidator) from the moment of appointment.
Liquidation of the enterprise: actions of the personnel officer
At the same time, it should be noted that, in accordance with paragraph 9 of the resolution of the Plenum of the Supreme Court of Ukraine dated November 6, 1992 No. 9 "On the practice of consideration of labor disputes by courts", it cannot be recognized that the employer has fulfilled the employment obligation if the employee was not given at the same or at another enterprise or a job offered, which he refused for good reasons (for example, due to health).
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