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Publication date: 12.05.2024
In accordance with the Law of Ukraine dated July 1, 2022 No. 2352-IX "On Amendments to Certain Legislative Acts of Ukraine Regarding the Optimization of Labor Relations" (hereinafter - Law No. 2352), amendments were made to Article 36 of the Labor Code of Ukraine (hereinafter - Labor Code of Ukraine) , which is supplemented by clause 8-3 — termination of the employment contract in connection with the employee's absence from work and information about the reasons for such absence for more than 4 months in a row. What is the procedure for dismissing an employee on this basis?
Let's find out the important aspects of this issue.
Article 36. Grounds for termination of the employment contract
The grounds for terminating an employment contract are:
8-3) absence of an employee from work and information about the reasons for such absence for more than four months in a row;
This reason for terminating the employment contract should not be equated with dismissal due to absenteeism (clause 4 of article 40 of the Labor Code).
In order to terminate the employment contract on the appropriate grounds, 2 mandatory conditions must be met at the same time:
1) the employee's actual absence from the workplace for more than 4 months in a row;
2) lack of information from the employer about the reasons for such absence for more than 4 months in a row (at the same time, it does not matter whether the reasons for such absence are valid or not).
It is understood that in case of non-fulfillment of 2 of the above-mentioned conditions of dismissal in accordance with such a reason, the court may recognize it as illegal, for example, if the employee proves that he informed the employer about the reasons for his absence within 4 months.At the same time, given the need to fulfill the requirement regarding the absence of an employee or information about him for 4 months in a row, the presence of several similar periods, which in total equal to or exceed 4 months, cannot be considered as fulfilling this condition.
Dismissal procedure in connection with the employee's absence from work for more than 4 consecutive months
The consent of the elected body of the primary trade union organization (trade union representative) is required when terminating the employment contract at the initiative of the employer. Since according to the norms of Article 36 of the Labor Code, such dismissal as dismissal due to the employee's absence from work and information about the reasons for such absence for more than 4 months in a row does not belong to the grounds for dismissal at the initiative of the employer, so it takes place without the consent of the trade union.
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Conclusion:
The new ground for terminating the employment contract, introduced in accordance with the amendments to Law No. 2352, concerns cases when the employee is absent from work for more than four consecutive months, while the employer does not have information about the reasons for such absence. It is emphasized that this reason is different from dismissal due to absenteeism, which is regulated by other legislation.The dismissal procedure on this basis requires compliance with two mandatory conditions: the employee's actual absence from work for more than four consecutive months and the lack of information from the employer about the reasons for this absence during the same period. The court may declare such dismissal illegal if both of these conditions are not met or if the employee can prove that he informed the employer about the reasons for his absence.
It is important to note that this type of dismissal does not require the consent of the trade union, as it is not considered a dismissal at the initiative of the employer according to Article 36 of the Labor Code.
