Publication date: 20.05.2024
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Dismissal of an employee in connection with the destruction of the enterprise
SITUATION
In accordance with the Law of Ukraine dated July 1, 2022 No. 2352-IX "On Amendments to Certain Legislative Acts of Ukraine on Optimizing Labor Relations" (hereinafter - Law No. 2352), amendments were made to Article 41 of the Labor Code of Ukraine (hereinafter - Labor Code). The changes introduce a new ground for dismissal at the initiative of the employer — the impossibility of providing the employee with the work specified in the employment contract due to the destruction (absence) of production, organizational and technical conditions, means of production or property of the employer as a result of hostilities. What is the procedure for dismissing an employee on this basis?
DECISION
Article 41. Additional grounds for terminating an employment contract at the initiative of the employer with certain categories of employees under certain conditions
In addition to the grounds provided for in Article 40 of this Code, the employment contract may also be terminated at the initiative of the employer in the following cases:
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6) impossibility of providing the employee with the work specified in the employment contract due to the destruction (absence) of production, organizational and technical conditions, means of production or property of the employer as a result of hostilities.
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Mandatory condition for dismissal under Clause 6 of Article 41 of the Labor Code
A mandatory condition for dismissal under Clause 6 of Article 41 of the Labor Code is the justified impossibility of providing the employee with work defined by the employment contract and labor function, which is directly related to the complete destruction (absence) of production, organizational and technical conditions, means of production or the employer's property as a result of hostilitiesTermination of the employment contract in accordance with paragraph 6 of Article 41 of the Labor Code does not require compliance with the provisions of the third part of Article 40 of the Labor Code, but is carried out only if it is impossible to transfer the employee to another job with his consent. In order to minimize conflicts and labor disputes in the future, before making a decision on the application of the specified norm, it is necessary to ensure consultations with representatives of employees.
Peculiarities of the dismissal procedure due to the impossibility of providing an employee with a job
It should be pointed out the overriding right to conclude an employment contract in the case of rehiring. In accordance with Article 42-1 of the Labor Code, an employee with whom an employment contract has been terminated on the grounds provided for in Clause 1 of Article 40 (except in the case of liquidation of an enterprise, institution, organization), Clause 6 of Article 41 of the Labor Code, has the right to conclude an employment contract within a year in the event of a return hiring, if the employer hires workers with similar qualifications.
