Publication date: 17.05.2024
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Peculiarities of dismissal for immoral misconduct
Dismissal for committing an immoral offense is an additional reason for terminating the employment contract at the initiative of the employer with certain categories of employees under certain conditions. In fact, such increased responsibility of a certain category of employees is due to the fact that they are in a special legal status and perform specific functions that are not characteristic of other categories of employees; their actions or inaction can lead to the violation of the constitutional rights and freedoms of citizens, cause significant damage to social relations and the authority of both the state itself and business entities.
Subjects that can be dismissed on the basis of Clause 3 of Article 41 of the Labor Code of Ukraine (hereinafter referred to as the Labor Code of Ukraine) include participants in the educational process. At the same time, in order to select this article for dismissal, it is necessary to analyze: does the employee definitely belong to the subjects that carry out the educational process?
An example of the improper application of Clause 3 of Article 41 of the Criminal Procedure Code can be cited in case No. 136/1207/17 (proceedings No. 61-36662 sv18), in which on January 15, 2020, the Supreme Court issued a legal opinion that the position (library methodologist) does not belong to the participants of the educational of the educational process and its powers do not include the performance of a pedagogical or educational function, and therefore there are legal grounds for recognizing it as illegal and canceling the order of dismissal and reinstatement, since the plaintiff is not the subject of dismissal from work on the grounds provided for in clause 3 of the first part Article 40 of the Labor Code.Since, in accordance with Article 4 of the Convention of the International Labor Organization "On Termination of Employment Relations at the Initiative of the Employer" No. 158 of June 22, 1982, employment relations with employees are not terminated unless there are legal grounds for such termination related to abilities or behavior employee or caused by the production need of an enterprise, institution or service.
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In addition, the dismissal of an employee who performs educational functions and who has committed an immoral offense is allowed under two conditions:
1. Immoral misconduct must be confirmed by facts. For example, in the decision of the Supreme Court dated September 19, 2018, in case No. 654/998/16-ts (proceedings No. 61-18295св18), in order to make a decision on the legality of the dismissal of a teacher of computer science and physics of the Zaliznoportiv School of Grades I-III, the testimony of a student was examined. student's mother, teachers, parents of other students.
2. Committing a misdemeanor is incompatible with continuing work that has an educational function. In the case dated March 27, 2019, in case No. 560/893/17 (proceedings No. 61-48706св18), the Supreme Court stated, 1. that the incident committed by the director of the Verbiv Educational Complex "General Education School of I-II Degrees - Preschool Educational Institution" of the Dubrovytskyi District Council consisted in humiliating the dignity of a minor, applying physical force to him, which gives grounds for concluding that further work is impossible. The circumstances established by the court are confirmed by the testimony of witnesses, statements of parents, as well as information from the Unified Register of Pretrial Investigations, according to which a pretrial investigation has been initiated based on the fact of this incident and which has not yet been completed.
Dismissal is allowed for committing an immoral offense that took place outside the performance of work duties
In addition, dismissal is allowed for committing an immoral misconduct both during the performance of work duties and not related to them (committing such misconduct in public places or in everyday life). In particular, an immoral offense is a guilty act that contradicts generally accepted norms and rules, violates the moral principles of society, the moral values that have developed in society, and contradicts the content of the labor function, thereby discrediting the official and educational, official powers of the relevant circle of persons. So, appearing in public places in a drunken state, swearing, fighting, behavior that degrades human dignity, etc., should be considered an immoral offense.
Not every wrongdoing can be considered immoral
At the same time, not every misdeed can be considered immoral. In addition, the term "immoral offense" itself is an evaluative concept, as it is not specified by the legislator.In each case, it is worth determining: whether negative consequences have occurred or whether these consequences may occur later and they are caused by the commission of an immoral offense. For example, in the decision of December 27, 2019 in case No. 345/3007/17 (proceedings No. 61-25200св18), the Supreme Court noted that the violation of the Rules of Internal Procedure for employees of the VPU No. 7 and the critical speech of the employee during the director's report on June 20, 2017 , which were the reason for her dismissal from her job, do not testify to her violation of moral standards, loss of authority and discrediting her as an educator, and therefore are not an immoral act in the sense of paragraph 3 of Article 41 of the Labor Code.
Therefore, employees performing an educational function, a teacher, pedagogue, educator are obliged to be a person of high moral convictions and impeccable behavior. The personal example of a teacher and his authority and high moral behavior are extremely important in shaping the consciousness of young people. As a result, if a teacher has compromised himself in front of students and other persons by inappropriate behavior, violated moral standards, thereby lost authority, discredited himself as an educator, he may be dismissed from his job under clause 3 of part one of article 41 of the Labor Code.
