Publication date: 25.04.2024
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Regarding measures to implement the court decision on reinstatement of the employee
According to Article 43 of the Constitution of Ukraine, everyone has the right to work, which includes the opportunity to earn a living by work that he freely chooses or freely agrees to. Citizens are guaranteed protection against illegal dismissal.
In the system of law for the protection of labor rights, the key place belongs to the right to judicial protection. According to Article 55 of the Constitution of Ukraine, the rights and freedoms of a person and a citizen are protected by the court.
The jurisdiction of the courts extends to any legal dispute and any criminal prosecution. In cases provided for by law, courts also consider other cases - Article 124 of the Constitution of Ukraine.
The court makes a decision on behalf of Ukraine. The court decision is binding - Article 129-1 of the Constitution of Ukraine.
Labor disputes regarding the reinstatement of an employee, regardless of the grounds for termination of the employment contract, are considered directly by district, district in the city, city or city-district courts in accordance with Article 232 of the Code of Labor Laws of Ukraine (hereinafter referred to as Labor Laws of Ukraine).
Immediate execution of the decision on illegal dismissal or transfer of the employee
In accordance with the seventh part of Article 235 of the Labor Code, the decision on the reinstatement of an illegally dismissed or transferred employee, adopted by a body that considers a labor dispute, is subject to immediate execution, which ensures immediate and real protection of the rights and interests of citizens and the state.The decision on the reinstatement of an illegally dismissed or transferred employee is carried out immediately in accordance with the procedure specified in Article 63 of the Law of Ukraine dated June 2, 2016 No. 1404-VIII "On Executive Proceedings" (hereinafter - Law No. 1404).
According to the second part of Article 65 of Law No. 1404, the decision is considered executed by the debtor from the date of issuance in accordance with the labor legislation of the order or order to resume the debt collector at work and make a corresponding entry in the debt collector's labor book (if necessary), after which the executor issues a decision to terminate executive proceedings.
Immediate execution of the court decision is mandatory
The immediate execution of a court decision is that it is binding and subject to execution not from the moment it enters into legal force, but immediately - from the moment it is announced in a court session and regardless of whether it will be appealed (see additionally the letter from the Ministry of Economy from May 26, 2021 No. 4712-03/29293-01 "On labor legislation").
Additional clarifications on issues related to reinstatement
The Ministry of Labor and Social Policy of Ukraine in the letter dated August 7, 2007 No. 205/06/187-07 provided additional clarifications on issues related to reinstatement, namely: The execution of the decision is considered complete from the moment of the actual admission of the specified the employee to perform previous duties on the basis of the relevant act of the body that made an illegal decision to dismiss the employee.
The issue related to the fact of reinstatement is resolved in accordance with the court's decision: an order is issued to reinstate the employee to work and changes are made to the employee's work book in accordance with clause 2.10 of the Instructions on the procedure for maintaining work books of employees, approved by order of the Ministry of Labor of Ukraine, the Ministry of of Justice of Ukraine, Ministry of Social Protection of the Population dated July 29, 1993 No. 58 (if necessary), in particular, an entry made in accordance with an order recognized by the court as illegal is invalid, for example, it is written: "An entry according to such an order is invalid, renewed on previous work".
Date of reinstatement. Therefore, reinstatement at the previous job does not take place from the date of the court's decision on such reinstatement, but from the date of dismissal of the employee, which, according to this decision, is recognized as invalid.
Liability for non-fulfillment of legal requirements of the executor
The provisions of Article 63 of Law No. 1404, in addition to imposing a fine for failure to comply with a court decision, provide for sending the debtor a demand to comply with the decision, which is subject to immediate execution within 3 working days.At the same time, Article 76 of Law No. 1404 provides for liability for non-fulfillment of legal requirements of the executor and violation of the requirements of this Law.
In addition to the above, Article 236 of the Labor Code also provides that if the employer delays the implementation of the decision of the body that considered the labor dispute on the reinstatement of an illegally dismissed or transferred employee, this body issues a decision to pay him the average salary or the difference in earnings for the time delays
Conclusions
Thus, in order to avoid negative consequences for non-compliance with the court decision on reinstatement of the employee in order to faithfully comply with it in accordance with the above-mentioned provisions of the law, the employer is recommended to:
1. Obtain a court decision and carefully study its content. You can apply to the court remotely through the "Electronic Court" system.
2. To take measures for the immediate implementation of the court decision. Issue an order to reinstate the employee, regardless of whether you plan to appeal the court decision, which:
• cancel the order on dismissal of the employee, which the court recognized as illegal;
• oblige the employee responsible for maintaining personnel documentation to make appropriate entries in the employee's work book (if available) and in the personal file (account card);
• oblige the employee responsible for calculating wages to calculate wages for the period of forced absenteeism in accordance with the court's decision.
3.Notify the employee about the cancellation of the dismissal order and reinstatement in accordance with the court decision by sending a letter to the place of registration (actual residence) with a copy of the order attached and/or by another available method of electronic communication, which is chosen by agreement between the employer and the employee ( see additionally Article 7 of the Law of Ukraine dated March 15, 2022 No. 2136-IX "On the Organization of Labor Relations under Martial Law").
4. To ensure the admission of the employee to work according to the court decision on reinstatement, to take appropriate measures to prevent mobbing and any actions that can be interpreted as harassment of the employee for going to court, as well as to take other measures, the obligation the implementation of which is entrusted to the employer by Article 141 of the Labor Code.
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