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Publication date: 14.05.2024
active and purposeful military lawyer with more than 4 years of experience
Illegal dismissal for absenteeism after termination of downtime: case law
The decision of the October District Court of the city of Poltava dated June 28, 2022 in case No. 554/2454/22 (proceedings No. 2/554/2180/2022) is quite interesting. The court protected the employee from illegal dismissal, reinstated him, charged the average salary for the period of forced downtime and made the following conclusions.
The essence of the matter
The point is that at the time of the introduction of martial law on the territory of Ukraine (February 24, 2022), the employee was temporarily unable to work, and on February 25, 2022, he was notified by means of electronic communication of the issuance of the employer's order introducing layoff. Subsequently, the employee was notified by means of electronic communication about the announcement of forced downtime for employees, who were explained the right not to go to the workplace.
Later, on March 29, 2022, the employee was asked to come and receive a copy of the dismissal order and a copy of the employment record by phone. And on March 30, 2022, the employee was informed of the dismissal orders and a photocopy of the last page of the employment book with the dismissal record via electronic means of communication.
At the same time, the employee was dismissed precisely for absenteeism on the grounds that the company announced the end of the layoff, did not notify the employee of the start of work, and due to the latter's absence from the company during the day, it was decided by the owner that the employee skipped work and therefore is subject to dismissal .Read also: The link to the list of vacancies on the website is not the employer's fulfillment of the requirements for the employment of the employee
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The position of the court
The court found a violation of labor legislation and indicated the following. In accordance with the provisions of Article 5-1 of the Labor Code of Ukraine (hereinafter referred to as the Labor Code), the state guarantees able-bodied citizens permanently residing in Ukraine, in particular, legal protection against illegal dismissal, as well as assistance in maintaining a job.
According to Article 22 of the Labor Code, any direct or indirect limitation of rights or establishment of direct or indirect advantages when concluding, changing or terminating an employment contract is not allowed.
In accordance with paragraph 4 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 only in case of absenteeism (in particular, absence from work for more than three hours during a working day). without good reason. Law of Ukraine dated March 15, 2022 No. 2136-IX "About the organization of labor relations in the conditions of martial law" does not cancel or change the norms of the Labor Code regarding grounds for dismissal at the initiative of the employer.
It is important that the labor law provides for the termination of the employment contract at the initiative of the employer in case of absenteeism precisely "without valid reasons".
Referring in its decision to the resolution of the Supreme Court of November 9, 2021 in case No. 235/5659/20, it is stated that: "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 without respectable 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). Therefore, determining the legality of dismissal for absenteeism is not only the establishment of the fact of the employee's absence from work for more than three hours during the working day, but also the establishment of the seriousness of the reasons for the absence."
we can see that the determination of the validity of the employee's absence from work is a determining factor for resolving the issue of the legality of the employee's dismissal from work under clause 4 of the first part of article 40 of the Labor Code.
Good reasons for absenteeism
An exhaustive list of valid reasons for absence from work is not defined in the labor legislation of Ukraine, therefore, in each individual case, an assessment of the validity of the reasons for absence from work is given, taking into account specific circumstances.According to established judicial practice, the reason for absence from work can be considered serious if the return to work was prevented by significant circumstances that cannot be eliminated by the employee himself. Reasons that exclude the fault of the employee are recognized as valid.
Therefore, failure to report to work as a result of hostilities and related circumstances cannot result in dismissal under Clause 4 of Part 1 of Article 40 of the Labor Code on the grounds of "absenteeism", because it is due to the need to preserve the life and health of employees and their families and is considered absent from work for valid reasons. In this case, employees retain their workplace and position. And the lack of proper notification of the termination of the previously introduced layoff is also a valid reason for absenteeism, since the announced layoff relieves the employee from the obligation to be present at the workplace.
