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Publication date: 07.05.2024
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Perhaps you will be interested in reading articles on such topics as: Is it possible to terminate an employment contract remotely?
During the war, many employers were faced with a situation where employees moved to another area or country, so it is necessary to dismiss the employee (if the work requires the presence of the performer). Or the employee himself wants to resign due to a change in life circumstances.
The Code of Labor Laws (hereinafter referred to as the Labor Code) stipulates that an employment contract may be terminated:
- at the initiative of the employee - Article 38 of the Labor Code;
- at the initiative of the employer - Articles 40 and 41 of the Labor Code;
- by agreement of the parties — paragraph 1 of part 1 of Article 36 of the Labor Code;
- due to the expiration of the term - clause 2 of part 1 of article 36 of the Labor Code.
Regardless of which party initiated the release, it is possible to single out some of its features of dependence on the process of exchanging documents.
Release by exchanging documents with an electronic signature
According to Article 14 of the Law of Ukraine dated May 22, 2003 No. 851-IV "On Electronic Document Management", electronic document management is carried out in accordance with the legislation of Ukraine or on the basis of contracts defining the relationship between the subjects of electronic document management. The use of an electronic document in civil relations is carried out in accordance with the general requirements for the execution of transactions established by civil legislation.In accordance with the third part of Article 29 of the Labor Code, familiarization of employees with orders (orders), notices, other documents of the employer regarding their rights and obligations is allowed using the means of electronic communication networks specified in the employment contract with the imposition of an improved electronic signature or a qualified electronic signature (further — electronic signature). The employment contract, upon the agreement of the parties, may provide for alternative ways of getting to know the employee.
Part 2 of Article 7 of the Law of Ukraine dated March 15, 2022 No. 2136-IX "On the Organization of Labor Relations in Martial Law" for the period of martial law allows the parties to establish any available method of electronic communication by mutual agreement, not limited to the employment contract.
According to the Law of Ukraine of October 5, 2017 No. 2155-VIII "On Electronic Trust Services", an electronic signature is electronic data that is added by the signatory to other electronic data or is logically linked to them and used by him as a signature.
That is, an electronic signature is equivalent to a person's personal signature, and also contains his identification data, which make it possible to unambiguously establish the identity of the signatory.
According to the Law of Ukraine dated December 16, 2020 No. 1089-IX "On Electronic Communications", an electronic communication network is a set of technical means of electronic communications and facilities intended for services consisting in the reception and/or transmission of information. That is, it is necessary to refers to the use of email, messengers, programs for exchanging documents, etc.
Therefore, the labor legislation allows the employee and the employer to exchange labor documents (statements, additional agreements and orders) by sending them via email, messengers, programs for exchanging documents, in the event that both parties put electronic signatures on such documents.
This mechanism works for the parties if they do not have claims against each other, that is, mostly in the process of dismissal by agreement of the parties or at the initiative of the employee.
Therefore, the voluntary dismissal procedure looks like this:
1) the employee sends a statement to the employer, signed with an electronic signature;
2) the employer issues a dismissal order, signs it with an electronic signature and sends it to the employee for review;
3) some programs of electronic document circulation provide the possibility of signing one document by two parties, therefore, in the event that an employee receives such an order, he must put an electronic signature on familiarization. And in the absence of such software, we advise you to obtain from the employee a statement on familiarization with the dismissal order, signed by his electronic signature.
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To use the mechanism of dismissal of an employee at the initiative of the employer by sending him orders, messages, reprimands signed with an electronic signature, the procedure for exchanging documents via email, messengers, programs must be approved. In it, it is necessary to fix the moment at which the employee is considered familiar with the employment documents.After all, it is from this moment that the terms stipulated by the labor legislation will begin to count down.
Exemption by exchange of scanned documents
In order to exchange scanned labor documentation without affixing an electronic signature, it is necessary to fix the procedure for exchanging such documentation. The employee must be familiarized with this procedure for signature. In the order, it is necessary to foresee the moment when the employee familiarizes himself with the labor documentation. It is advisable to fix an email and phone number for the employee in the employment contract, because at the time of its signing, the person identifies himself and confirms that such a means of communication will be used by him during the execution of the contract. Only by following such recommendations in the event of a conflict situation between the parties, it is possible to prove in the court process that a certain person at a certain moment was familiar with labor documents.
Dismissal in case of lack of order of electronic communication
If there is no electronic communication procedure, then the exchange of labor documents between the employer and the employee must take place by means of postal communication.
Thus, the Civil Court of Cassation as part of the Supreme Court expressed the following position in its decision No. 686/21222/16-ts dated December 3, 2018: "In the absence of prior consent of the parties to the employment relationship for the exchange of official documents by means of electronic communication, such documents must be submitted in paper form with the original signature of the author of the document, since sending the application by means of electronic communication does not allow the other party to establish the true will of the applicant."
An important issue in this case is the moment from which the terms are calculated. Yes, in the case of sending an application for dismissal by mail, the dismissal period (two weeks) will begin only when the employer receives the specified application.
If the employee has exceptional reasons for terminating the employment contract without a two-week period, then in the application it is necessary to indicate them and indicate the moment from which the employee requests to terminate the employment contract. Such circumstances include:
• moving to a new place of residence;
• transfer of husband or wife to work in another area;
• admission to an educational institution;
• impossibility of living in this area, confirmed by a medical opinion;
• pregnancy;
• caring for a child until he reaches the age of fourteen or a child with a disability;
• care for a sick family member according to a medical opinion or a person with a disability of the I • group;
• retirement;
• recruitment by competition;
• other reasons.
Therefore, moving an employee to a new place of residence can serve as a reason for dismissal without observing the two-week dismissal period at the initiative of the employee.The moment of dismissal in this case will be the date indicated by the employee himself in the application, for example, the date following the date of receipt of the dismissal application by the employer.
Regarding the issuance of a work book
Since 2018, no changes have been made to the Resolution of the Cabinet of Ministers of Ukraine No. 301 of April 27, 1993 "On the employment records of employees". That is, today the resolution stipulates the obligation of the employer to return the work book to the employee, if the book is kept by the employer, under the signature in the Book of accounting for the movement of work books and their inserts and the personal card.
We would like to remind you that from 2021, employers will keep records of work activities in electronic form, while the paper work book can be kept by both the employee and the employer, and entries are made to it by the employer at the request of the employee.
If the work book is kept by the employer, then, in accordance with clause 4.1 of the Instruction on the procedure for keeping work books of employees, approved by the order of the Ministry of Labor of Ukraine, the Ministry of Justice of Ukraine, the Ministry of Social Protection of the Population of Ukraine dated 29
