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Publication date: 07.05.2024
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The Supreme Court changed the jurisdiction of disputes over the dismissal of a manager
The decision to dismiss the head of the enterprise, although it has consequences within the framework of labor relations, refers to the deprivation of powers to manage the company. Therefore, the dispute should be considered not within the framework of labor, but rather corporate legal relations.
This conclusion was made by the Civil Court of Cassation of the Supreme Court in case No. 359/8573/20 on the claim of at. of the director of the state enterprise regarding the cancellation of the decision of the primary trade union organization to terminate the employment contract.
In April 2020, the trade union adopted a decision, according to which it demanded from the relevant ministry to terminate the employment contract with the manager. According to Article 45 of the Labor Code of Ukraine, the owner or the body authorized by him must, at the request of the elected body of the primary trade union organization, terminate the employment contract with the head of the enterprise if he violates:
• legislation on labor;
• legislation on collective agreements and agreements;
• Law of Ukraine dated September 15, 1999 No. 1045-XIV "On trade unions, their rights and guarantees of activity".
The manager appealed to the court with a demand to cancel the decision of the trade union. The first instance rejected the claim. There, they took into account the presence of numerous violations of labor law requirements at the enterprise, confirmed by court decisions, as well as the fact that the manager did not provide adequate and admissible evidence for rebuttal.
After that, the man turned to our bar association for legal help.We drew attention to the fact that the trade union, which initiated the dismissal of the manager, had only 24 members. At the time, there were 43 trade unions at the enterprise, where more than three thousand workers worked.
However, according to the position of the Supreme Court (decision dated December 11, 2019 in case No. 266/4331/17), if there are several trade union organizations at the enterprise, their elected bodies at the appropriate level of contractual regulation must coordinate their actions to achieve their statutory goals and objectives in the matter of protecting the interests of members of their trade unions in order to avoid a possible decision that would conflict with the rights and interests of members of another trade union organization.
Since there was no representation of a common position, the appeal overturned the decision of the original union. Then the defendant appealed to the Supreme Court. After he filed a cassation appeal, the Grand Chamber passed a resolution in another case (No. 201/909/20 dated December 14, 2022), in which it concluded that the legal regulation of the issue of termination of an employment contract with the head of the enterprise is, by its legal nature, a subject of regulation legal relationship and legal consequences differs from dismissal as a result of termination of employment.
And if earlier such disputes were resolved in civil court proceedings (like labor disputes), now the position on this issue has been changed.
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In the case under review, in order to determine the jurisdiction of the dispute, it was necessary to find out whether the dispute, by its legal nature and legal consequences, belongs to corporate disputes, and therefore is subject to resolution by the commercial court, or whether the dispute is labor and subject to consideration in civil proceedings.
The criteria for distinguishing cases of civil jurisdiction from others are: collection of debt from wages recovery of wages through court recovery of wage arrears recovery of wages recovery of wages in court recovery of wages through court recovery of unpaid wages
1) the existence of a dispute regarding the protection of violated, unrecognized or disputed rights, freedoms or interests in any legal relationship, except for cases when such a dispute is resolved according to the rules of another court;
2) special subject structure of this dispute, in which one of the parties is, as a rule, an individual.
Therefore, in civil proceedings, as a general rule, any cases in which at least one of the parties is usually a natural person can be considered, if their resolution is not assigned to other types of proceedings.Pursuant to the provisions of Article 167 of the Economic Code of Ukraine, corporate relations arise, change and terminate with respect to the right of a person whose share is determined in the authorized capital (property) of an economic organization, which includes the right to participate in the management of an economic organization, receive a certain share of profits (dividends ) of this organization and assets in case of liquidation of the latter in accordance with the law, as well as other powers provided for by the law and statutory documents. Corporate rights are characterized by the fact that a person who is a participant (founder, shareholder, member) of a legal entity has the right to participate in the management of an economic organization and other powers provided for by law and statutory documents (please note that at the time of publication, Article 167 is excluded on on the basis of Law No. 2465-IX dated 07.27.2022)
Regarding our dispute, the Supreme Court emphasized that the state acquires and exercises corporate rights in a state unitary enterprise indirectly through authorized management bodies, within the limits of their competence established by law. Such a body, the sphere of management of which includes a state enterprise, is a relevant ministry.
Senior judges assumed that the realization by the members of the company of corporate rights to participate in its management through the adoption by the competent body of decisions on the election (appointment), removal, removal, recall of the members of the executive body of this association also refers to the granting or deprivation of their powers to manage the company .Although such decisions of the authorized body may have consequences within the scope of labor relations, corporate legal relations are decisive under such circumstances. Decisions of the body authorized for this should be considered not within the scope of labor, but rather of corporate legal relations arising between the company and the persons entrusted with the authority to manage it.
So, the dispute is related to the company's activities and management. But the consequences of resolving this dispute may affect labor relations with the manager. But this does not change the corporate nature of such a dispute.
In view of the above, the Supreme Court came to the conclusion that the courts of general jurisdiction that considered the dispute (first instance and appeal) are not "courts established by law" to consider the dispute in the case under review, because the dispute is subordinate to non-civil courts, and economic jurisdiction.
For reference. Judicial jurisdiction is a legal institution designed to demarcate the competence of both different branches of the judicial system and different types of judicial proceedings.
The criteria for the delimitation of court jurisdiction (that is, the conditions prescribed by law under which a certain case is subject to consideration according to the rules of one or another type of judicial procedure) are:
• subject composition of legal relations;
• the subject of the dispute;
• the nature of disputed material legal relations.
In addition, such a criterion can be a direct indication in the law of the type of court proceedings in which a certain category of cases is considered.
Subject jurisdiction is used to distinguish the competence of civil, criminal, economic and administrative courts.Each court has the right to consider and decide only those cases (disputes) assigned to it by legislative acts, that is, to act within the limits of the established competence.
