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Publication date: 30.04.2024
active and purposeful military lawyer with more than 4 years of experience
Liquidation of the enterprise: how to deal with the mobilized
Pursuant to Article 119 of the Labor Code of Ukraine (hereinafter referred to as the Labor Code), a mobilized employee undergoing military service is guaranteed the preservation of the place of work and the position in which he worked at the time of conscription.
However, if the enterprise where the mobilized employee worked is liquidated, does he retain his workplace and position?
Dismissal of the mobilized employee in this case takes place at the initiative of the employer on the basis of paragraph 1 of the first part of Article 40 of the Labor Code.
The procedure for such dismissal is regulated by Article 49-2 of the Labor Code. According to the specified article, employees are personally warned about the next release no later than two months in advance.
Obligations of the employer
To register such a dismissal, the employer must:
• personally warn the employee about the next release no later than two months in advance (Article 49-2 of the Labor Code);
• notify the state employment service of the planned layoff no later than two months in advance - form No. 4-PN "Information on the planned mass layoff of employees in connection with changes in the organization of production and labor."Notification of a mobilized employee
If the employer knows in which military unit the employee performs military service and its location, he must send the employee two registered letters with a warning about the planned release:
• registered letter with delivery notice (or a letter with declared value with a description of the attachment and delivery notice) — addressed to the employee to the military unit;
• with the declared value with a description of the attachment and the mark "Deliver in person" - to the address of residence.
In the letter sent to the military unit, the date of dismissal will be determined, taking into account the time required for forwarding the postal item, receiving the correspondence by the authorized person of the military unit and handing the letter to the employee.
It should be noted that the date of dismissal can be postponed for the necessary number of days, if the period between the date of receipt of the letter by the employee and the scheduled date of dismissal is less than two months.
However, this method of notification requires establishing the exact date of receipt of the letter by the employee. In advance, such information can be obtained from the employee himself, if there is a connection with him.
In the future (after receiving a notification about the delivery of the letter to the authorized person of the military unit), the employer must send a request to the military unit to confirm the date of delivery of the letter to the employee - with reference to the time and date of delivery of the letter in the "Ukrposhta" notification.
A letter sent to the place of residence must be marked "Deliver in person". In case of its absence, in accordance with clause 99 of the Rules for the provision of postal services, approved by Resolution No. 270 of the Cabinet of Ministers of Ukraine of March 5, 2009, the letter can be delivered both to the addressee and to an adult family member, provided the document is presented , certifying identity, as well as a document certifying family ties with the addressee (birth certificate, marriage certificate, etc.).
The receipt by the employer of a notification of delivery of a letter marked "Deliver in person" confirms not only the fact that the employee received the necessary information personally, but also the fact that he is at home and not in the military unit (demobilization, release from the location of the military unit, vacation, etc.).
If the employer has implemented electronic document management and provides for the possibility of using electronic exchange of personnel documents (electronic means of communication), then this method can also be used for informing and notifying the mobilized employee, but in compliance with all established rules.
Provided that he is properly informed about the planned dismissal in connection with the liquidation of the enterprise, the employer will have the right to dismiss the mobilized employee during his military service.
Documentation of dismissal
Any dismissal from the enterprise, in particular in connection with the liquidation, is formalized by a corresponding order or decree (Order on dismissal in connection with the liquidation of the enterprise).After signing and registering the order, it is necessary to familiarize the mobilized employee with it and provide him with a copy of this order (Part 2 of Article 47 of the Labor Code). The procedure for reviewing and sending an order for dismissal in connection with the liquidation may be the same as for a personal warning of the employee about the subsequent dismissal in a specified manner.
On the day of dismissal of a mobilized employee, the enterprise must pay him:
• cash compensation for unused vacation;
• severance pay in the amount of average monthly earnings (Article 44 of the Labor Code of Ukraine).
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