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Publication date: 08.05.2024
Legal opinion (Analysis, consultation, evaluation. legal analysis of the situation, lawyer's consultation, lawyer's consultation, analysis of documents, legal analysis of the situation)
Dismissal from the post of dean of the head of the faculty
of the institution of higher education
In accordance with the first part of Article 43 of the Law of Ukraine "On Higher Education", the head of a higher education institution, with the consent of the majority of the full membership of the public self-government body of the faculty (educational and scientific institute) of the higher education institution, appoints the head of the faculty (educational and scientific institute) for a term of up to years old and concludes a contract with him. Other issues regarding the procedure for appointing the head of the faculty (educational and scientific institute) are determined by the statute of the higher education institution.
In accordance with the third part of Article 43 of the Law of Ukraine "On Higher Education", the appointment and dismissal from the position of the head of a territorially separated structural subdivision of a higher education institution or college, which are structural subdivisions of a higher education institution, are carried out in the manner established by this article for the head of the faculty (educational scientific institute).
The letter of the Ministry of Education and Science of Ukraine (hereinafter - the Ministry of Education and Culture) "On the appointment of the head of the faculty (educational and scientific institute) of the territorially separated structural unit and college" No. 1/9-17 dated January 19, 2021 provides clarifications according to which this the norm regulates the issue of appointing the head of a college that has the status of an institution of higher education (paragraph one of clause 3 of part one of Article 28 of the Law of Ukraine "On Higher Education"). The appointment of the head of a vocational college is carried out in accordance with the Law of Ukraine "On Vocational Pre-Higher Education".The head of the institution of higher education independently, in accordance with the statute of the institution of higher education (in the absence of relevant provisions in the statute, at his own discretion), carries out the selection of a candidate for the position of director (head) of an educational and scientific institute / dean (head) of a faculty / head of a territorially separated structural unit / the director of the college (hereinafter referred to as the head of the unit) and submits the following personnel proposal for the approval of the public self-government body of the educational and scientific institute / faculty / territorially separated structural unit/college (hereinafter referred to as the unit). Such a selection can be carried out by conducting a competitive selection, the procedure of which is determined by the local regulatory documents of the higher education institution.
The body of public self-government (meeting (conference) of the labor team) of the unit considers the proposal of the head of the higher education institution and approves the candidacy for the position of head of the unit. After such approval, the head of the higher education institution appoints a person approved by the majority of the full membership of the public self-government body of the subdivision to the position of head of the subdivision.
In case of disagreement by the majority of the full membership of the public self-government body of the subdivision of the candidate for the position of head of the subdivision, the head of the higher education institution appoints (assigns duties to) the acting head of the subdivision until his appointment in the established manner.At the same time, the local regulatory documents of the institution of higher education must establish the maximum term of performance of duties and after which period the head of the institution of higher education must again submit a corresponding personnel proposal for the approval of the public self-government body of the unit.
The period of performance of duties of the head of the division is not included in the calculation of the period of tenure of the head of the division.
The head of the higher education institution independently determines the term (no more than five years) for which the contract is concluded with the director (head) of the educational institute / dean (head) of the faculty / head of the territorially separated structural unit / director of the college.
The contract with the head of the division may define the target indicators of the division's activity, the achievement of which must be ensured by the person in the position of the head of the division in the event of signing the contract, the mechanisms for checking the achievement of such targets, as well as the deadlines for achieving such targets.
According to part four of Article 43 of the Law of Ukraine "On Higher Education", one and the same person cannot be the head of a faculty (educational and scientific institute), college, territorially separated structural subdivision of the corresponding institution of higher education for more than 10 years.
At the same time, subparagraph 10 of paragraph 2 of Chapter XV of the Law of Ukraine "On Higher Education" specifies that the effect of Articles 42 and 43 of this Law in terms of the requirements for the head of a higher education institution and the head of a structural unit to be in office for no more than two terms applies to heads elected to the position after this Law enters into force. The Law of Ukraine "On Higher Education" entered into force on September 6, 2014.The application of this norm for the head of the unit is currently impossible, taking into account the wording of Article 43 of the Law of Ukraine "On Higher Education", which does not establish the maximum number of terms of tenure of the head of the unit.
Subparagraph 21, paragraph 2 of Chapter XV of the Law of Ukraine "On Higher Education" establishes that persons who work in the positions of head of a faculty (educational and scientific institute, separate structural unit of a higher education institution, college in accordance with the Law of Ukraine "On Higher Education") on entry into force of the Law of Ukraine "On Vocational Pre-Higher Education" at least five years, have the right to continue working in this position for no more than five years. The Law of Ukraine "On Vocational Pre-Higher Education" entered into force on August 9, 2019.
Taking into account the impossibility of applying retroactively to the analyzed regulations, taking into account the need to observe the guarantees of the constitutional right to work (Articles 43, 58 of the Constitution of Ukraine), taking into account the provisions of Article 43 and Sub-Clause 21, Clause 2 of Section XV of the Law of Ukraine "On Higher Education ", it is necessary to draw a reasonable conclusion that persons who, as of August 9, 2019, worked as department heads for at least five years continue to perform their duties in accordance with the contracts concluded with them and have the right to be re-appointed to the corresponding positions for the period that will not exceed five years.For example, as of August 9, 2019, a person has been in the position of head of a division for 8 years (two terms of 5 years each, the second is ongoing), then such a person continues to fulfill his powers in accordance with the contract concluded with him (until June 30, 2021) and has the right to be re-appointed to the relevant position for a period not exceeding 5 years.
Persons who, as of August 9, 2019, have worked as a unit head for less than five years, may continue to perform their duties in accordance with the contracts concluded with them and have the right to be re-appointed to the relevant positions within the limit period of the unit head's tenure ( 10 years).
For example, as of August 9, 2019, a person has been in the position of head of a division for 2 years (one term of 4 years, which continues), then such a person continues to fulfill his powers in accordance with the contract concluded with him (until June 30, 2021) and has the right to re- to be appointed to the relevant position for a period not exceeding 6 years (two or more terms).
