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Publication date: 16.05.2024
active and purposeful military lawyer with more than 4 years of experience
Pharmacists: employment contract or civil law
The company appealed to the court with a lawsuit, in which it asked to declare illegal and cancel the order and resolution of the State Department of Labor in Zaporizhzhia region on the imposition of a fine due to the admission of pharmaceutical workers to work without concluding an employment contract.
In upholding the claim, the courts of the first and appellate instances were guided by the fact that the legal relationship between the plaintiff and natural persons contains features that are characteristic of the civil law relationship between the employer and the employee, the specified scope of work and its final result are established. The courts took into account that during 2017-2018, the mentioned persons worked at the main place of work in the center of primary health care, therefore they were subject to and followed the rules of the internal procedure of this institution. Accordingly, the primary health care center provided working conditions to the mentioned persons.
The Supreme Court, as a member of the panel of judges of the Cassation Administrative Court, did not agree with this conclusion of the courts of previous instances, satisfied the cassation appeal of the State Labor Department in Zaporizhzhya region, annulled the decision of the courts of the first and appellate instances, passing a new decision - on the refusal to satisfy the claim.
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The court noted that trade in pharmaceutical products must be carried out by persons who meet the uniform qualification requirements approved by the Ministry of Health of Ukraine.In this case, it was established that the Company conducts economic activity in the retail trade of medicinal products on the basis of a license issued by the State Service of Medicinal Products of Ukraine.
At the same time, the Society allowed the retail trade of medicinal products by natural persons under civil law contracts, and not by employees under labor contracts or business entities — licensees, which is a violation of current legislation.
Therefore, the conclusions of the courts of previous instances that individuals worked at the main place of work in the center of primary health care and obeyed and followed the rules of the internal procedure of the relevant institution are unfounded, since the labor legislation provides for the possibility of working part-time or combining positions. In this regard, the plaintiff had the opportunity to establish labor relations with the relevant natural persons in accordance with the Labor Code of Ukraine.
The court noted that pharmaceutical service is the result of the professional activity of pharmaceutical workers with the aim of preserving and maintaining the health of citizens. The plaintiff's application of civil law norms to labor relations is inadmissible and may lead to negative consequences and cause harm to human life and health.
Resolution of the Supreme Court dated May 18, 2022 in case No. 280/205/20 (administrative proceeding No. K/9901/17223/20).
