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Publication date: 15.05.2024
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The court recognized the employment relationship that arose on the basis of the contract as terminated
The civil court of cassation, canceling previous decisions in case No. 377/169/20, came to the conclusion that an effective way to protect the rights of an employee whose contract has expired, but the dismissal order has not been issued, is to recognize the employment relationship between the parties as terminated.
The plaintiff worked as the head of the state institution "Specialized medical and sanitary unit No. 5 of the Ministry of Health of Ukraine" according to the contract. Before its end, the institution was reorganized by joining another. The plaintiff was offered a lower position, which he refused. However, the dismissal order was not issued, and the employer did not raise the issue of early termination of the contract.
The plaintiff asked the court, in particular, to oblige the employer to dismiss him from his position due to the expiration of the contract, to conduct a calculation upon dismissal and to collect the average earnings during the delay in the calculation.
The court of first instance dismissed the lawsuit because the contract continued, the employee was not fired, so there is no right violated that would be subject to judicial protection.
The appellate court rejected the claim on other grounds, noting that the plaintiff did not demand termination of the employment contract.
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In turn, the CCS observed: if the law or the contract does not determine an effective method of protecting the violated right of a person, the court, in accordance with the claim of such a person set out in the lawsuit, can determine in its decision such a method of protection that does not contradict the law (Parts 1 and 2 of Article 5 of the Code of Criminal Procedure ).Parts 3 and 4 of Article 36 of the Labor Code stipulate that a change in the subordination of an enterprise, institution, or organization does not terminate the employment contract. In the event of a change in the owner of the enterprise, as well as in the event of its reorganization (merger, merger, division, separation, transformation), the employee's employment contract continues. Termination of the employment contract on initiative
of the owner or the body authorized by him is possible only in the event of a reduction in the number or staff of employees (clause 1 part 1 of article 40 of the Labor Code).
Termination of the employment contract in connection with the expiration of its validity period does not require a statement or any manifestation of the employee's will. The owner is also not obliged to warn or otherwise inform the employee about the future dismissal according to paragraph 2 of part 1 of article 36 of the Labor Code. Therefore, the contract is terminated in connection with the expiration of its validity period. An exception to this rule is the actual continuation of the employment relationship, when none of the parties, after the expiration of the employment contract, has made a demand for their termination.
In this case, after the expiration of the contract, the employment relationship with the plaintiff actually ended, but the defendant did not make a decision on such termination, accordingly, the dismissal order was not issued in connection with the expiration of the contract.
