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Publication date: 30.04.2024
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Dismissal for absenteeism during air alarms: the first case law
On average, one air alarm lasts 55 minutes. If there are several such alarms per day, the employee may be absent from work for more than 3 hours. And for such an employee's absence from work, the employer can fire the employee for absenteeism.
Of course, similar situations already exist in Ukraine, and judges are already considering cases of reinstatement of employees who were dismissed for absenteeism during an air raid.
In this article, we will understand when the absence of an employee at work during an air alert is a valid reason, how to prove it to the employee in court, and what evidence should be submitted.
Absence of an employee at work during an alarm: absenteeism or necessity
Absenteeism — the absence of an employee from work for more than 3 hours continuously or in total during the working day without valid reasons and without notifying the employer — clause 4 of part one of Article 40 of the Labor Code of Ukraine (hereinafter referred to as the Labor Code of Ukraine).
Absenteeism is leaving work without a good reason and without a corresponding warning to the employer in the prescribed manner.
The current labor legislation of Ukraine does not contain an exhaustive list of valid reasons for absence from work, therefore, each case regarding the valid reasons for absence from work is assessed separately based on specific circumstances.Failure to report to work as a result of hostilities and related circumstances, including air raids, cannot result in dismissal under Clause 4 of Part 1 of Article 40 of the Labor Code on the grounds of "absenteeism", because it is due to the need to preserve life and health employees and their families in accordance with Article 3 and Article 50 of the Constitution of Ukraine and is considered absent from work for valid reasons. In this case, the employees retain their workplace and position.
Review of judicial practice regarding the dismissal of an employee under Clause 8-3 of Article 36 of the Labor Code — read in the magazine "KADROVYK.UA"
There must be such a connection between the air alarm and absenteeism that, as a result of the air alarm and danger to life and health, the employee is forced to be absent from work (in the office or at a remote work place). In this case, air anxiety will be a serious reason for absenteeism.
Therefore, the absence of an employee from work during an air alert may be a valid reason, but depending on the circumstances and actions of the employee.
There is currently no opinion of the Supreme Court. Jurisprudence on the question of the validity of such a reason for absenteeism as an air alarm is only being formed.
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Court decisions
Let's analyze the decisions of the courts of first instance.
1. Decision of the Lutsk City and District Court of the Volyn Region dated September 27, 2022 in case No. 161/8467/22 (not appealed, entered into force).The circumstances of the case. An employee of KP "Lutskvodokanal" was dismissed for absenteeism. She attributed the seriousness of her absence to constant air alarms.
The court established:
• shelter is not equipped at the enterprise;
• it was proved to the employees that all employees are obliged to go to the nearest shelter or use the rule of "two walls" during air alarms, to return to the workplace after the air alarm is over;
• according to the response of the Civil Defense Department of the Volyn Regional Military Administration of the Volyn Regional State Administration, the duration of the announced air alerts in the city of Lutsk:
— April 5, 2022 from 5:32 a.m. to 6:14 a.m.;
— April 27, 2022 from 10:16 a.m. to 10:41 a.m.;
• according to the enterprise's automated access system, the employee was absent from the workplace:
— April 5, 2022, 3:45 a.m. (from 7:45 a.m. to 11:30 a.m.);
— April 27, 2022 at 5:38 a.m. (from 10:22 a.m. to 5:00 p.m.).
Conclusion of the court. The court compared the duration of the air alarms and the time of the employee's absence from the workplace and found that the air alarm was announced outside the company's working hours.
The employee was denied reinstatement, the dismissal for absenteeism was lawful.
2. Decision of Karliv District Court of Poltava Region dated August 22, 2023 in case No. 531/609/23 (there is currently no information on the appeal).
The circumstances of the case. The employee was dismissed for absenteeism on February 10, 2023.
The court found that on February 10, 2023, there was a massive missile attack on Ukraine, the total duration of the air alert was 10 hours and 10 minutes. Within the working hours of the plaintiff, the air alert was announced during:
• from 8:28 a.m. to 11:56 a.m. (3 hours 27 minutes);
• from 1:13 p.m. to 2:40 p.m. (1 hour 27 minutes).
After the announcement of the air alert, the employee went to the shelter, which is located at the address, which is in the list of buildings designated for shelter, published on the official website of the city council.
Outside of the declared air alert, the employee was absent from work. The total time of his absence is 2 h 05 min.
Conclusion of the court. Therefore, failure to report to work as a result of hostilities and related circumstances cannot result in dismissal under Clause 4 of Part 1 of Article 40 of the Labor Code on the grounds of "absenteeism", because it is due to the need to preserve the life and health of employees and their families and is considered absent from work for valid reasons. In this case, the employees retain their workplace and position.
3. Decision of the Sumy District Administrative Court dated February 9, 2023 in case No. 480/5559/22.
The circumstances of the case. The civil servant was dismissed for absenteeism, full working days from June 6, 2022 to July 5, 2022.As one of the reasons for his absence, the Claimant indicated the air raids that were announced every day in the territory of the Sumy region, which made it impossible for the Claimant to arrive in the city of Sumy and return to the city of Lebedyn.
The court expressed the position that staying in a shelter during an air raid can be a valid reason for an employee's absence from work, but the plaintiff does not deny that he was absent from the workplace during full working days, including those hours when the air raid alert was not announced . At the same time, the plaintiff did not provide adequate evidence of the validity of the reasons for his absence from work at that time.
The court refused to reinstate the employee. The decision was not appealed.
4. Decision of the Korostyshiv District Court of Zhytomyr Region dated September 12, 2023 in case No. 935/703/22
The circumstances of the case. The employee was dismissed for absenteeism without valid reasons on March 29, 2022, April 1, 2022 and April 5, 2022 between 2:00 p.m. and 5:00 p.m.
Conclusion of the court. According to publicly available information on the duration and number of air alerts on the territory of Ukraine, on March 29, 2022, an air alert was announced in the Zhytomyr Region at the following time:
• from 07 h 45 min to 08 h 40 min;
• from 11 h 04 min to 12 h 15 min;
• from 12 h 53 min to 15 h 09 min;
• from 3:21 p.m. to 5:34 p.m.
In the Zhytomyr region, on April 5, 2022, an air alert was announced from 4:03 p.m. to 4:38 p.m.
Thus, the documents submitted to the court about the plaintiff's absence from work dated March 29, 2022 and April 1, 2022 are not accepted by the court as sufficient evidence to confirm the plaintiff's absence from work on the days specified in the documents.
The plaintiff's absence from work on April 5, 2022 between 2:00 p.m. and 5:00 p.m. specified in the contested order does not fall under the definition of absenteeism in paragraph 4 of the first part of Article 40 of the Labor Code, since the period from 2:00 p.m. to 5:00 p.m. is three hours, and absenteeism is absence from work more than three hours.
There are no appeal court decisions yet.
Therefore, the case law is on the right track that not every absence of an employee from work during an air alert is a valid reason. The employee still needs to prove that there really was an air alert in the region where he works (office, home, or on the way to work) at that time, and that the employer did not organize the employee's safe work in the shelter.
