Publication date: 17.05.2024
active and purposeful military lawyer with more than 4 years of experience
How to employ an employee instead of a mobilized employee: in questions and answers
For employees who are in military service during the special period for the period before its end or until the day of actual release, the place of work and position at the enterprise, institution, organization, farm, agricultural production cooperative, regardless of subordination and form of ownership, and in natural persons - entrepreneurs, in which they worked at the time of the draft.
If a person is in military service, and the employer forces him to write an application for dismissal (telephone threats, notices about forced dismissal), then the employee must comply with the following:
• not to write an application for dismissal (despite pressure from the employer). After all, in the future, proving that the employee committed physical and psychological pressure on him during the writing of the application for dismissal is quite problematic and difficult;
• collect evidence of forced dismissal.
Can the employer force to write a resignation letter in order to hire another employee?
No, the employer does not have the right to force the employee to write an application for dismissal. To date, no restrictions have been established for employers regarding the replacement of a position during the period of temporary absence of the main employee.
If a person has been mobilized for military service, the employer may hire another employee in his place by concluding a fixed-term employment contract with him for the duration of the main employee's military service.After all, in accordance with the second part of Article 23 of the Code of Labor Laws of Ukraine (hereinafter referred to as the Labor Code of Ukraine), 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.
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The Ministry of Social Policy of Ukraine in its letter dated June 10, 2015 No. 231/06/186-15 "Regarding employees called up for military service" clarified that the provision of Article 119 of the Labor Code stipulates that labor relations between the employer and the employee are maintained, and the employee is only released from the performance of production or official duties. At the same time, the labor legislation does not establish restrictions for the employer regarding the replacement of a position during the period of temporary absence of the main employee.
employment contract.
What is the term to specify in a fixed-term employment contract for the period of temporary absence of the main employee performing military service?
Importantly! If the employer does not set the term for which the contract is concluded, then such a contract will be considered to be concluded for an indefinite period - indefinite. At the same time, it is impossible to predict exactly what time the main employee will perform military service.
In accordance with paragraph 7 of the resolution of the Plenum of the Supreme Court of Ukraine of November 6, 1992 No. 9 "On the practice of consideration of labor disputes by courts", it is provided that when concluding an employment contract for a certain period, this period is established by agreement of the parties and can be determined both by a specific term and by the time of its occurrence a certain event (for example, the return to work of an employee from pregnancy, childbirth and childcare leave; a person who resigned from work in connection with being called up for active military or alternative service, being elected as a people's deputy or to an elected position (or fulfilling a certain amount of work).
Thus, when concluding a fixed-term employment contract, the expiration of such a contract may be the occurrence of a specific event - the day the main employee is released from military service.
Practical situation.After being discharged from military service, the employee applies to the employer to start work, but the employer refuses and forces him to write an application for dismissal, referring to the fact that another employee is working in his place. Are the employer's actions legal?
The actions of the employer are illegal. If the employee, after being discharged from military service, has notified the employer of his intention to return to his place of work and start performing the duties stipulated in the employment contract, the employer is obliged to issue a corresponding order and provide the employee with a job.
At the same time, the date of dismissal of an employee who worked under a fixed-term employment contract as an employee called up for military service will be the last day before the day on which the main employee begins to perform the duties provided for in the employment contract, which must be specified in the relevant order of the employer.
