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Publication date: 17.05.2024
active and purposeful military lawyer with more than 4 years of experience
Currently, labor relations are regulated not only by the Labor Code of Ukraine
(hereinafter referred to as the Labor Code of Ukraine), but also by the Law of Ukraine dated March 15, 2022 No. 2136-IX "On the Organization of Labor Relations in Martial Law" (hereinafter - Law No. 2136).
In accordance with the third part of Article 40 of the Labor Code, it is prohibited to dismiss an employee at the initiative of the employer during his temporary incapacity, as well as during his vacation.
However, Article 5 of Law No. 2136 stipulates that during the period of martial law, it is allowed to dismiss an employee at the initiative of the employer during the period of his temporary incapacity, as well as during the period of the employee's stay on vacation (except for pregnancy and childbirth leave and leave for child care until she reaches three years of age) with an indication of the date of dismissal, which is the first working day following the end of the temporary incapacity for work specified in the document on temporary incapacity for work, or the first working day after the end of the vacation.
At the same time, it should be noted that such dismissal takes place if there are legal grounds for dismissing the employee at the initiative of the employer (Articles 40, 41 of the Labor Code), and not on the basis of temporary incapacity or the employee being on vacation.
Peculiarities of terminating the employment contract: collection of debt from wages recovery of wages through court recovery of wage arrears recovery of wages recovery of wages in court recovery of wages through court
It should be added that during the period of martial law, new grounds for dismissing an employee appeared, in particular, the employee's absence from work and information about the reasons for such absence for more than four consecutive months (item 8-3, part 1, article 36 of the Labor Code). This ground for terminating the employment contract should not be equated with dismissal due to absenteeism (clause 4 of article 40).In order to terminate the employment contract on the appropriate grounds, two mandatory conditions must be met at the same time:
1) the employee's actual absence from the workplace for more than 4 months in a row;
2) lack of information from the employer about the reasons for such absence for more than 4 months in a row (at the same time, it does not matter whether the reason for such absence is valid or not).
It is understood that in the case of non-fulfillment of the two above-mentioned conditions at the same time, dismissal on such a basis may be recognized by the court as illegal, for example, if the employee proves that he informed the employer about the reasons for his absence within 4 months.
At the same time, based on the need to fulfill the requirement regarding the absence of an employee or information about him for 4 consecutive months, the presence of several similar periods, which in total equal to or exceed 4 months, cannot be considered as fulfilling this condition.
We remind you that the termination of the employment contract is formalized by issuing an order (order) of the employer. Such an order (order) must specify the grounds for termination of the employment contract in exact accordance with the wording of the labor legislation and a specific reference to the article, paragraph of the law.
