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Publication date: 15.05.2024
active and purposeful military lawyer with more than 4 years of experience
Judicial practice of consideration of labor disputes during martial law: granting leave without salary, suspension of employment relations, payment of salary arrears
In connection with the adoption on March 15, 2022 of the Law of Ukraine No. 2136-IX "On the Organization of Labor Relations in Martial Law" and its amendment by the Law of Ukraine No. 2352-IX of July 1, 2022 "On Amendments to Certain Legislative Acts of Ukraine on the optimization of labor relations", as well as the ambiguity of the application of its individual provisions, we present a selection of court decisions on consideration of labor disputes during martial law.
Jurisprudence on granting leave without salary
On the example of the decision of the Voznesensky City District Court of the Mykolaiv Region dated August 19, 2022 in case No. 473/929/22
When considering the dispute about granting the plaintiffs leave without salary at the main place of work and part-time from April 1, 2022 for the period of military operations, the court was guided as follows.
Pursuant to Article 84 of the Labor Code of Ukraine (hereinafter referred to as the Labor Code of Ukraine) in the cases provided for by Article 25 of the Law of Ukraine of November 15, 1996 No. 504/96-VR "On Vacations" (hereinafter referred to as Law No. 504), the employee is granted, at his request, mandatory leave without pay.
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Law No. 504 regulates in more detail issues regarding the granting of leave without salary.The provisions of Law No. 504 provide for the provision of 2 types of unpaid leave to an employee, namely:
• leave granted to employees by virtue of the subjective right that belongs to them according to the law, i.e. in a mandatory manner (Article 25 of Law No. 504);
• leave granted by agreement of the parties (Article 26 of Law No. 504).
In particular, in accordance with the first part of Article 26 of Law No. 504, for family reasons and for other reasons, an employee may be granted leave without pay for a period determined by an agreement between the employee and the employer, but no more than 15 calendar days per year.
At the same time, Part 3 of Article 12 of the Law of Ukraine dated March 15, 2022 No. 2136-IX "On the Organization of Labor Relations in the Conditions of Martial Law" (hereinafter - Law No. 2136) provides that during the period of martial law, the employer may, at the request of the employee, grant him leave without retention of wages without limitation of the period established by the first part of Article 26 of Law No. 504.
Thus, the granting of unpaid leave to employees is carried out in the interests of the employees themselves and at their request, and not at the initiative of the employer.
Having examined the case materials within the limits of the stated claims and on the basis of the evidence provided by the parties, the court found that the order to grant leave without salary was issued without the submission of relevant statements by the employees and without their agreement with the employer. Therefore, given the provisions of Articles 25 and 26 of Law No. 504, the defendant had no legal grounds to grant the plaintiffs leave without pay.The court noted that the grounds for its issuance specified in the disputed order (failure to appear for unexplained reasons) are not provided for by the current legislation as grounds for granting the employee leave without pay.
