See more
Publication date: 15.05.2024
The Central Committee of the Supreme Court made a conclusion regarding the payment of severance pay during the dismissal of officials
The civil court of cassation as part of the Supreme Court recognized as erroneous the conclusion of the appeals court that the very fact of dismissal according to Clause 5, Part 1 of Art. 41 of the Labor Code of Ukraine, although with the simultaneous appointment to the same position and at the same enterprise, is the basis for the payment of severance pay.
This follows from the conclusion of the Civil Court of Cassation as part of the Supreme Court, made in the resolution of March 27, 2024 in case No. 202/3322/22.
Among other things, the CCSC of the Supreme Court noted that the plaintiff's behavior regarding the requirement to provide him with severance pay, which is provided for dismissed employees due to circumstances beyond their control during the period of their job search, five years after the issuance by him himself as the chairman of the board of PJSC on one day of the orders on his dismissal and hiring, i.e. without making any effort necessary to find a job, does not comply with the principle of good faith and indicates an abuse of the right.
According to the circumstances of the case
The plaintiff indicated that in July 2017 he was dismissed from the position of the chairman of the board of PJSC in connection with the termination of the powers of officials in accordance with paragraph 5 of article 41 of the Labor Code of Ukraine.
On the basis of Article 44 of the Labor Code of Ukraine, he should have been paid severance pay in the amount of at least six months' average earnings, however, during the preparation of documents for preferential retirement, it became clear that such amount of severance pay had not been accrued and paid to him.
So he asked to collect severance pay in his favor.
The district court rejected the claim.The Court of Appeal overturned this decision and satisfied the claim, indicating that the claims in this case do not relate to the existence and amount of salary arrears, but to the payment of severance pay, to which the plaintiff is entitled on the basis of Article 44 of the Labor Code of Ukraine, the calculation of which has not been refuted.
The position of the Supreme
The civil court of cassation as part of the Supreme Court annulled the decision of the appeal court, and changed the decision of the district court in the motivational part, making the following legal conclusions.
In accordance with Clause 5, Part 1, Art. 41 of the Labor Code of Ukraine, an employment contract may be terminated at the initiative of the owner or a body authorized by him in the event of termination of the powers of officials. Norms of Art. 44 of the Labor Code of Ukraine determine that in case of termination of the employment contract on the grounds specified in Clause 5, Part 1, Art. 41 of the Labor Code of Ukraine, the employee is paid severance pay in the amount of at least six months' average earnings.
The severance pay is not equated with the salary paid to the employee at the time of dismissal, since its amount is not related to the quantity and quality of work, but only to the fact of the dismissal of the employee for reasons defined by law. Therefore, the main task of severance pay is to provide the dismissed employee with financial support during the period of his search for a new job.
It was established that on July 12, 2017, the supervisory board of PJSC decided to terminate the powers of the chairman and member of its board and elect the plaintiff as chairman and member of the board of PJSC for a period of three years. That is, the defendant's supervisory board made a decision both to terminate the plaintiff's powers as chairman of the board and to re-elect him to the same position.By an order signed by the plaintiff himself dated July 12, 2017, he was dismissed from his position on the basis of paragraph 5 of Article 41 of the Labor Code of Ukraine, and on the same day, by another order, he was hired from July 13, 2017 to the same position.
It is obvious that the plaintiff, as of the day of the dismissal order, was aware of his appointment to the same position from the day after the dismissal, because the orders were issued on the same day and under his signature.
The plaintiff was continuously in employment with the defendant, that is, he was actually not fired from this company and from this position until October 12, 2021.
"In view of the stated and taking into account the main task of severance pay, which is the financial support of the dismissed employee during the period when he is looking for a new job, which the plaintiff did not have, there are no grounds for paying him severance pay," stated the Central Committee of the Supreme Court. You may be interested following articles: lawyer's consultation lawyer's consultation analysis of documents legal analysis of the situation written consultation verification of documents by a lawyer lawyers documents lawyer's help online lawyer online legal opinion legal opinion of a lawyer lawyer online
The Supreme Court noted that the employee is a weaker party than the employer in labor relations. At the same time, in such relations, the employee must act in good faith regarding the realization of his rights, and the interests of the employer must also be taken into account. That is, a reasonable balance between the interests of the employee and the employer must be observed.
