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Publication date: 16.05.2024
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Is the introduction of a contractual form of an employment contract instead of an open-ended one a change in the essential working conditions: an example of the Supreme Court
The plaintiff appealed his dismissal from the position of head of physical education at the technical school. The employer offered him, after changing the staff list, instead of an indefinite employment contract, to continue working in the same position at 0.5 of the rate under the terms of the contract for a period of one year, to which the plaintiff did not agree. He was dismissed on the basis of Clause 6 of Part 1 of Article 36 of the Labor Code of Ukraine (hereinafter referred to as the Labor Code) in connection with the refusal to continue working as a result of a change in essential working conditions. The district court rejected the claim.
The civil court of cassation as part of the Supreme Court, leaving unchanged the court decision of the appeals court on the satisfaction of the claim, made the following legal conclusions.
In accordance with Part 3 of Article 32 of the Labor Code, in connection with changes in the organization of production and work, a change in essential working conditions is allowed while continuing to work in the same specialty, qualification or position.
A change in essential working conditions (rate of remuneration, duration of working hours, work regime) can be recognized as legal only if it is proved that there are changes in the organization of production and work.
If, during consideration of a labor dispute, it is established that the change in the essential terms of the employment contract was not made in connection with a change in the organization of production and work at the enterprise, institution, or organization, then such a change, taking into account the specific circumstances, may be recognized by the court as unlawful.If the former essential working conditions cannot be preserved, and the employee does not agree to continue working under the new conditions, the employment contract is terminated in accordance with Clause 6, Part 1, Article 36 of the Labor Code.
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Dismissal on these grounds in its content is not the same as dismissal in connection with a change in the organization of labor production, a reduction in the number or staff of employees on the basis of paragraph 1 of part 1 of Article 40 of the Labor Code, since it provides for the continuation of work in the same specialty, qualification or position, but with new working conditions.
In accordance with Part 2 of Article 23 of the Labor Code, a fixed-term employment contract is concluded in cases where the employment relationship cannot be established for an indefinite period, taking into account the nature of the next job, or the conditions of its performance, or the interests of the employee, and in other cases provided for by legislative acts.
The interpretation of parts 1, 3 of article 21, part 2 of article 23 of the Labor Code indicates that in this case a direct indication of the law is necessary for hiring an employee under a contract, since neither the nature of the relevant work, nor the conditions of its performance, nor the interests of the employee provide for the conclusion contract with him.
The conclusion of the appellate court that the defendant as an employer had no legal grounds for changing the plaintiff's working conditions from an open-ended employment contract to a fixed-term one is well-founded, since the provisions of the labor legislation do not contain a direct indication of the possibility of concluding an agreement with a pedagogical employee who does not hold an administrative position in an educational institution. institution, fixed-term employment contract.Taking into account the above, since essential working conditions are an evaluative concept in labor law, the Supreme Court noted that the introduction of a contractual form of an employment contract is a change in essential working conditions.
At the same time, the plaintiff was dismissed precisely according to clause 6, part 1 of article 36 of the Labor Code, and not according to clause 9 of part 1 of article 36 of the Labor Code, which stipulates that the grounds for termination of an employment contract are the grounds provided for by other laws.
