Publication date: 14.05.2024
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A link to the list of vacancies on the website does not constitute the employer's fulfillment of the requirements for the employment of the employee
In case of dismissal of an employee in connection with changes in the organization of production and labor (clause 1, part 1, article 40 of the Labor Code of Ukraine; hereinafter - Labor Code of Ukraine), the employer's link to the Internet resource and an indication that the employee can familiarize himself with the current the list of vacant positions and choose a position in accordance with the specialty, qualification and experience on the relevant link, is not adequate proof of the employer's fulfillment of its obligations, provided for by the third part of Article 49-2 of the Labor Code, regarding the employment of the employee.
Such a conclusion was made by the Joint Chamber of the Civil Court of Cassation as part of the Supreme Court (decision of February 21, 2024 in case No. 638/14165/21), considering the case based on the claim of the employee dismissed on the basis of paragraph 1 of the first part of Article 40 of the Labor Code in connection with in connection with the reduction of staff, about resumption of work.
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According to the circumstances of the case, the plaintiff was in labor relations with the bank. The bank sent a notice to the employee about his subsequent release due to staff reduction due to the reorganization and offered him to review the list of vacant positions posted on the institution's website.
The district court satisfied the claim, and the appellate court changed this decision in the part of the amount of recovery of the average earnings for the period of forced absenteeism.Having considered the case, the OP of the Supreme Administrative Court noted that, according to the content of the third part of Article 49-2 of the Labor Code, the employer is the one who has fulfilled the obligation to employ the employee, if the employee was offered all other vacant positions (other jobs) that appeared at the enterprise during the entire period and existed on the day of dismissal.
The employer's link to the Internet resource and the indication that the employee can familiarize himself with the current list of vacant positions and choose a position in accordance with his specialty, qualifications and experience at the relevant link is not adequate evidence of the defendant's fulfillment of his duties, provided for in part three of Article 49-2 KZpP, since it is impossible to establish with certainty which vacancies for that period were on the Internet resource specified by the defendant, whether all available vacant positions at that time were there, whether the plaintiff familiarized himself with the specified list of vacancies and whether the plaintiff had access to the specified Internet resource at all . Therefore, the employer's reference to the Internet resource does not make it possible to establish that the vacant positions (other work) were brought to the attention of the employee.
In addition, the conclusions of the courts are well-founded that the offer to an employee, released on the basis of paragraph 1 of the first part of Article 40 of the Labor Code, to get a job on general terms for work in a newly created unit contradicts the content of Article 49-2 of the Labor Code.
