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Publication date: 15.05.2024
active and purposeful military lawyer with more than 4 years of experience
About dismissal for gross violation of labor duties
QUESTION
Is it possible to dismiss an employee in connection with a one-time gross violation of labor duties for which a disciplinary penalty was applied?
ANSWER
The right of citizens to work is ensured by the state, and an employment contract can be terminated only on the grounds and in the manner provided for by labor legislation (Article 36 of the Labor Code of Ukraine; hereinafter - Labor Code).
The grounds for terminating the employment contract at the initiative of the employer are provided for in Articles 40 and 41 of the Labor Code. In accordance with paragraph 1 of the first part of Article 41 of the Labor Code, an employment contract may be terminated at the initiative of the employer in cases of one-time gross violation of labor duties by the head of the enterprise, institution, organization of all forms of ownership (branch, representative office, department and other separate subdivision), his deputies , the chief accountant of an enterprise, institution, organization, his deputies, as well as officials of revenue and tax authorities who have been assigned special titles, and officials of central executive bodies implementing state policy in the spheres of state financial control and price control.
A one-time violation must be understood as illegal behavior that is limited in time and committed exactly once (one action or inaction). Long-term, improper "management" of the work of the institution, weakening of control over the work of subordinates, etc., is not a one-time gross violation of labor duties.A similar conclusion is stated in the Supreme Court rulings of October 6, 2021 in case No. 305/1001/18 (proceedings No. 61-3286св21), of July 28, 2022 in case No. 216/3852/20 (proceedings No. 61-2822св22).
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The provisions of Article 149 of the Labor Code oblige to demand a written explanation from the manager before making a decision to dismiss the manager for a one-time gross violation of labor duties. You cannot be dismissed for a violation that has already resulted in the application of other types of disciplinary sanctions.
When choosing the type of penalty, the employer, by virtue of the third part of Article 149 of the Labor Code, must take into account the severity of the offense committed and the damage caused by it, the circumstances under which the offense was committed, and the employee's previous work.
Therefore, a decision to dismiss an employee on the basis of paragraph 1 of part one of Article 41 of the Labor Code may be made by the employer if the following conditions are met:
1) the subject of disciplinary responsibility may be a certain category of employees;
2) in order to apply this provision of the law, it is necessary to establish the fact that the employee violated his labor duties;
3) the violation must be one-time and gross;
4) a decision to dismiss an employee can only be made by a person authorized to do so (Decision of the Supreme Court of December 16, 2022 in case No. 761/34905/20).
