Publication date: 15.05.2024
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The employer must prove the impossibility of providing the employee with work as a result of hostilities, if he wants to dismiss him for this reason
The employer may dismiss the employee on his own initiative if he cannot provide him with work, which is directly related to the complete destruction of production, organizational and technical conditions, means of production or his property as a result of hostilities. Such destruction or lack of conditions must be a direct consequence of hostilities.
This was the conclusion reached by the Civil Court of Cassation as part of the Supreme Court in the decision of September 27, 2023 in case No. 523/11673/22 (proceedings No. 61-5654св23).
In the case reviewed by the Supreme Court, the plaintiff was dismissed from her job at a children's camp in Odesa on the basis of paragraph 6 of part one of Article 41 of the Labor Code of Ukraine (hereinafter referred to as the Labor Code). The court of first instance, with whose decision the appellate court agreed, satisfied the claim for her reinstatement.
The Supreme Court left unchanged the court decisions of the courts of previous instances, making the following legal conclusions: an employment contract may be terminated at the initiative of the employer in cases of impossibility to provide the employee with the work specified in the employment contract due to the destruction (absence) of production, organizational and technical conditions , means of production or employer's property as a result of hostilities. It is possible to terminate the contract in accordance with clauses 4 and 6 of the first part of Article 41 of the Labor Code if it is not possible to transfer the employee to another job with his consent (Part 4 of Article 41 of the Labor Code).The procedure for the dismissal of an employee, in accordance with clause 6 of the first part of Article 41 of the Labor Code, is determined by the seventh part of Article 49-2 of the Labor Code.
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Objecting to the lawsuit, the defendant pointed to the impossibility of carrying out activities due to the martial law and the temporary stay of military personnel on the coast.
The Supreme Court noted that the introduction of martial law does not automatically mean the destruction (absence) of production, organizational and technical conditions, means of production or property of the employer as a result of hostilities. At the same time, the Court noted that Clause 6 of the first part of Article 41 of the Labor Code does not contain the conditions under which the employment contract can be terminated at the initiative of the employer in connection with unprofitability due to the fact that the institution does not actually work, or the inability of the employer to organize the safety of employees, etc.
Since the children's camp is located in the territory where hostilities do not take place (the city of Odesa), the impossibility of providing the plaintiff with the work specified in the employment contract was not related to the absence of production, organizational and technical conditions, means of production or property of the employer as a result of hostilities. By itself, the introduction of martial law in the country and the circumstances related to the fact that the children's camp does not actually work are not grounds for terminating the employment contract at the initiative of the employer in accordance with paragraph 6 of the first part of Article 41 of the Labor Code.
