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Publication date: 20.04.2024
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Regarding the postponement of the vacation of an employee who became a witness in criminal proceedings: clarification of the Ministry of Economy
The Ministry of Economy of Ukraine in its letter dated June 7, 2021 No. 4712-06/30986-09 "On providing an explanation" clarified whether it is possible to transfer to another period or extend the vacation of an employee in the event of a call of an employee who is in such on leave, to the investigative department as a witness in connection with a pre-trial investigation in criminal proceedings.
Guarantees for employees during the performance of state or public duties
In accordance with paragraph 2 of the second part of Article 11 of the Law of Ukraine of November 15, 1996 No. 504-VR/96 "On Vacations" (hereinafter - Law No. 504), the annual vacation must be postponed to another period or extended in the event that the employee fulfills state or public responsibilities, if according to the legislation he is subject to exemption for this time from the main job with retention of salary.
Guarantees for employees during the performance of state or public duties are established by Article 119 of the Labor Code of Ukraine. Thus, the first part of the mentioned article stipulates that during the performance of state or public duties, if under the current legislation of Ukraine these duties can be performed during working hours, employees are guaranteed the preservation of their place of work (position) and average earnings.Reimbursement of subpoena costs
The Ministry of Economy clarifies that paragraph 6 of the first part of Article 66 of the Criminal Procedure Code of Ukraine (hereinafter referred to as the Criminal Procedure Code of Ukraine) provides that a witness has the right to reimbursement of expenses related to a summons to testify.
In accordance with the first part of Article 122 of the Criminal Procedure Code, the costs associated with the involvement of witnesses, specialists, translators and experts shall be borne by the party to the criminal proceedings who filed a motion to summon witnesses, involved a specialist, translator or expert, except for cases established by the Criminal Procedure Code.
In order to implement, in particular, Article 122 of the Criminal Code of Ukraine, the Resolution of the Cabinet of Ministers of Ukraine dated July 1, 1996 No. 710 approved the Instruction on the procedure and amounts of compensation (reimbursement) of expenses and payment of remuneration to persons summoned to pre-trial investigation bodies, the prosecutor's office, the court of authorities, in the proceedings in which cases of administrative offenses are pending, and payments to state specialized institutions of forensic examination for the performance by their employees of the functions of experts and specialists (hereinafter - Instruction No. 710).
Clause 1 of Instruction No. 710 stipulates that witnesses, victims, legal representatives of victims, civil plaintiffs, representatives of civil plaintiffs, as well as experts, specialists and translators shall retain the average salary for all the time spent by them in connection with the appearance and summons to bodies of pre-trial investigation, the prosecutor's office, the court or to the bodies in whose proceedings are cases of administrative offenses.Conclusions on postponement of leave
In view of the above, the Ministry of Economy came to the conclusion that annual leave (meaning annual basic and annual additional leave) can be transferred to another period or extended in the event that an employee who is on such leave is summoned to the investigative department as a witness in connection in connection with pre-trial investigation in criminal proceedings.
It should be noted that in case of postponement of annual leave, the new term of its provision is established by agreement between the employee and the employer. If the reasons that led to the postponement of the vacation to another period occurred during its use, then the unused part of the annual vacation is granted after the expiration of the reasons that interrupted it, or by agreement of the parties, it is transferred to another period in compliance with the requirements of Article 12 of Law No. 504, and precisely on the condition that the main continuous part of it will be at least 14 calendar days and the unused part of the annual leave must be given to the employee, as a rule, before the end of the working year, but no later than 12 months after the end of the working year for which the leave is granted (part four Article 11 of Law No. 504).
However, the condition that the unused part of the annual leave must be given to the employee, as a rule, before the end of the working year, but no later than 12 months after the end of the working year for which the leave is granted for the period of martial law does not apply according to part one of Article 12 Law of Ukraine dated March 15, 2022 No. 2136-IX "On the organization of labor relations under martial law".
The Ministry of Economy also draws attention to the fact that the occurrence of circumstances under which the annual basic leave must be postponed in accordance with the second part of Article 11 of Law No. 504, in particular, the employee's performance of state or public duties, does not mean that the employee can at his discretion decide on the issue of postponement leave for the period immediately following the day of termination of these circumstances. Even if the leave is extended in the event that the employee fulfills state or public duties, the unused part of the annual leave after the end of the specified circumstances is not used by the employee himself, it must be provided by the employer. This part of the leave is granted by the employer issuing an order (order) on the basis of a summons to the investigator and his statement.
