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Publication date: 07.05.2024
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Dismissal of an employee for absenteeism: case law
SITUATION
In an open court session, the Ternopil City District Court of the Ternopil Region considered a civil case, the essence of which is that the employee appealed to the court with a lawsuit against her former employer to declare the order on her dismissal illegal, to cancel it and reinstate the employee to her position.
COMMENT
In the substantiation of the claims, the employee stated the circumstances that she was in labor relations with the employer until March 3, 2023, based on the contract dated June 10, 2022, the term of which is until June 30, 2024.
The position of an employee
While on leave without pay, which was supposed to end on February 1, 2023, the employee submitted an application to the employer on January 30, 2023 to grant her leave without pay as a mother to take care of a child under the age of 14 for the period of the declaration of quarantine in the relevant territory from February 2, 2023 on the basis of Clause 3-1 of Article 25 of the Law of Ukraine dated November 15, 1996 No. 504/96-VR "On Vacations" (hereinafter - Law No. 504).
The specified application was considered by the employer and the employee was given an explanation in the form of a letter that she did not have the right to the specified type of leave.
The employee did not go to work on February 2, 2023, as well as on subsequent days.Guide "Optimization of labor relations during martial law: TOP-55 answers"
The employer issued an order dated February 27, 2023 to dismiss the employee on March 2, 2023 for absenteeism without valid reasons on the basis of Clause 4 of Article 40 of the Labor Code of Ukraine (hereinafter referred to as the Labor Code of Ukraine).
Therefore, having submitted an application for leave on the above grounds and taking into account that this type of leave is, accordingly, provided by the employer in a mandatory manner and his consent is not required, the employee had expectations regarding the application to her of the provisions provided for in clause 3-1 of the first part Article 25 of Law No. 504, and she acquired the right to leave without pay for the period from February 2, 2023 to April 30, 2023.
The employee is sure that her stay on the appropriate leave makes it impossible to dismiss her for absenteeism on the basis of paragraph 4 of Article 40 of the Labor Code, therefore the dismissal order is subject to cancellation with her reinstatement.
The employee claims that she did not intentionally fail to show up for work (absenteeism), and therefore, her actions do not constitute a disciplinary offense as grounds for dismissal in accordance with paragraph 4 of Article 40 of the Labor Code.Position of the employer
The employer filed a response to the lawsuit, in which he noted that the dispute, in fact, boils down to whether a person who is abroad has the right to mandatory leave to care for a child under the age of 14 for the period of the declaration of quarantine on the relevant territory of Ukraine. Yes, the employee, together with her child under the age of 14, has been outside the territory of Ukraine since March 2022 until today.
The employer claims that the need for leave to take care of a child under the age of 14 for the period of the declaration of quarantine in the relevant territory is directly related to the quarantine in a certain, clearly defined territory. The relevant territory on which the quarantine has been declared is the territory of Ukraine, and not the territory of the worker's country, where she currently resides with her child.
The employer also claims that an important aspect for determining the right to such leave is the necessity and necessity of taking care of the child, for example, in connection with the location of the educational institution attended by the child in the territory where quarantine and appropriate restrictions on participation in the educational process.
The employee's child studies in a comprehensive school, and in connection with the extension of the quarantine until April 30, 2023 on the territory of Ukraine, the education of students in this school was not stopped or suspended. The school also did not switch to distance learning in connection with the quarantine.
Thus, in the opinion of the employer, even if the employee was with her child in the territory of Ukraine, she would also be denied the granted leave, since there is no objective reason for taking care of the child.
At the same time, the employer notes that, in accordance with the fourth part of Article 12 of the Law of Ukraine dated March 15, 2022 No. 2136-IX "On the Organization of Labor Relations in Wartime Conditions" (hereinafter - Law No. 2136), a type of leave without salary is established for an employee who left the territory of Ukraine or acquired the status of an internally displaced person, which is provided by the employer to persons who have left abroad. The legislation of Ukraine does not provide for other mandatory types of vacations for persons who have gone abroad.However, the employee did not apply to the employer for this type of leave, although she was offered exactly this option.
The employer claims that the employee was dismissed for a gross systematic violation of labor legislation in accordance with the procedure provided for by the Labor Code. Therefore, he asks to completely reject the claim.
What conclusion did the court reach?
As a result of the consideration of the case, the court came to the conclusion that there are no grounds for declaring the order to dismiss the employee, its cancellation, as well as her reinstatement as illegal, based on the following applicable legal norms.
• 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.
Similar guarantees (legal protection against illegal dismissal) are contained in Article 5-1 of the Labor Code.
• According to Article 139 of the Labor Code, employees are obliged to work honestly, conscientiously, promptly and accurately carry out the orders of the owner or the body authorized by him, observe labor and technological discipline, the requirements of regulatory acts on labor protection, and treat the property of the owner with whom the contract is concluded with care .
• In accordance with paragraph 4 of the first part of Article 40 of the Labor Code, an employment contract concluded for an indefinite period, as well as a fixed-term employment contract before the expiration of its validity period, may be terminated by the owner or a body authorized by him in the event of absenteeism (including absence from work for more than three hours during the working day) without valid reasons.
That is, the absence of an employee at work both during the entire working day and for more than three hours continuously or in total during the working day without valid reasons.
Thus, clause 4 of the first part of Article 40 of the Labor Code establishes the right of the employer to choose a penalty in the form of dismissal both for one absenteeism and in the case when absenteeism is long-term.
• Pursuant to the fourth part of Article 263 of the Civil Procedure Code of Ukraine (hereinafter referred to as the Civil Procedure Code of Ukraine) when choosing and applying the rule of law to disputed legal relations, the court takes into account the conclusions regarding the application of the relevant rules of law set out in the Supreme Court's rulings.• In the decision of the Supreme Court dated November 9, 2021 in case No. 235/5659/20 (proceedings No. 61-10432св21) it is stated: "absence of an employee from work both during the entire working day and for more than three hours continuously or in total during the working day is recognized as absenteeism days without valid reasons (for example, arbitrary use without the consent of the owner or his authorized body of days off, regular vacation, leaving work before the end of the term of the employment contract or the period that the employee is obliged to work as assigned after graduating from a higher or secondary special educational institution) ".
That is, failure to report to work due to the employee's arbitrary use of vacation, time off for previously worked days, retirement without notifying the employer is considered absenteeism and may be the reason for the dismissal of the employee on this basis. This legal opinion was expressed in the decision of the Supreme Court of Ukraine dated December 3, 2018 in case No. 686/21222/16-ts (proceedings No. 61-18573св18).
• In the resolutions dated May 8, 2019 in case No. 489/1609/17 (proceedings No. 61-37729св18) and dated August 27, 2020 in case No. 161/14225/19 (proceedings No. 61-8917св20), the Supreme Court noted that the determining a factor for deciding the legality of the plaintiff's dismissal from work under clause 4 of the first part of Article 40 of the Labor Code is to clarify the seriousness of the reasons for his absence from work.The labor legislation of Ukraine does not provide for an exhaustive list of valid reasons for absence from work, therefore, in each case, an assessment of the validity of the reason for an employee's absence from work is given based on specific circumstances and taking into account all the evidence provided by the parties.
According to established judicial practice, the reason for an employee's absence from work can be considered serious if the visit to work was prevented by significant circumstances that cannot be eliminated by the employee himself, in particular:
• fire, flood (other natural disasters); accidents or breakdowns in transport;
• fulfillment of civic duty (providing assistance to persons injured in an accident, saving state or private property in case of fire, natural disaster);
• caring for a suddenly ill family member;
• absence from work with the permission of the immediate supervisor;
• absence due to health.
Therefore, such reasons that exclude the fault of the employee are recognized as valid.
• The first part of Article 147 of the Labor Code states that for a violation of labor discipline, only one of the following sanctions can be applied to an employee - reprimand or dismissal.
Violation of labor discipline is non-fulfillment or improper fulfillment of the work duties assigned to him due to the employee's fault.
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• Pursuant to Article 148 of the Labor Code, disciplinary sanctions are applied by the owner or the body authorized by him directly upon discovery of a misdemeanor, but no later than one month from the date of its discovery, not counting the time the employee was dismissed from work due to temporary incapacity or his stay on vacation. Disciplinary penalty cannot be imposed later than six months from the date of committing the misdemeanor.
• According to Article 149 of the Labor Code, before applying disciplinary sanctions, the owner or the body authorized by him must demand written explanations from the violator of labor discipline. Only one disciplinary sanction may be applied for each violation of labor discipline. When choosing the type of penalty, the owner or the body authorized by him must take into account the severity of the misdemeanor and the damage caused by it, the circumstances under which the misdemeanor was committed, and the previous work of the employee. The recovery is announced in an order (order) and notified to the employee against a receipt.
At the same time, the legal assessment of a disciplinary offense is carried out on the basis of finding out all the circumstances of its commission, including taking into account the employee's written explanation.
