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Publication date: 21.05.2024
Reinstatement of an illegally dismissed employee is a procedure for restoring an employee to his previous workplace as a result of a court decision or a decision of the relevant body. The main aspects of this process in Ukraine are regulated by the Code of Labor Laws of Ukraine.
Legal advice on dismissal. Legislative basis. Procedure for reinstatement.
- Article 235 of the Labor Code: stipulates that the employee must be reinstated at the previous job in case of illegal dismissal. Judicial authorities or other competent authorities may decide on the reinstatement of the employee.
- Article 238 of the Labor Code: specifies that in case of reinstatement of an employee, he must be immediately allowed to perform his duties, and he must be paid the average wage for the period of forced absenteeism or the difference in wages for the time of performing lower-paid work.
Renewal procedure.
- Filing an application to the court: An employee who considers his dismissal illegal has the right to apply to the court for reinstatement and payment of compensation for forced absenteeism. The deadline for submitting an application is one month from the date of delivery of a copy of the dismissal order (Article 233 of the Labor Code).
Consideration of the case in court: The court considers the case and makes a decision. If the court establishes the illegality of the dismissal, it makes a decision on the reinstatement of the employee and obliges the employer to pay compensation.
Execution of the court decision: After the decision is issued, the employer must immediately reinstate the employee. If the employer does not comply with the decision voluntarily, the employee can apply to the enforcement service for enforcement of the decision.
Employee compensation.
- The reinstated employee is paid:
The average salary for the time of forced absenteeism or the difference in salary for the time of performing lower-paid work.
Compensation for moral damage, if such a claim was filed and satisfied by the court.
Employer's responsibility.
The employer may bear administrative and even criminal liability for non-compliance with the court decision on reinstatement of the employee. In particular, in accordance with Article 382 of the Criminal Code of Ukraine, failure to comply with a court decision is punishable by a fine or imprisonment.
Legal advice dismissal. The reinstatement of an illegally dismissed employee is a complex procedure that requires detailed compliance with the norms established by law. The employee has the right to protect his rights through the court and, in the case of a positive decision, reinstatement and receive appropriate compensation.
The reinstatement of an illegally dismissed employee without a court decision is possible on the condition that the employer recognizes his erroneous decision and wishes to voluntarily correct the situation. Below is the algorithm of such a procedure.
Algorithm for reinstatement without a court decision.
- 1. Submission of a written application by the employee:
The employee submits to the employer a written application for reinstatement, in which he notes the circumstances of his dismissal and justifies its illegality.
2. Verification by the employer of the circumstances of dismissal:
The employer conducts an internal audit regarding the circumstances of the employee's dismissal, analyzing the available documents and the reasons for the dismissal.
3. Recognizing an error and making a decision on renewal:
If the employer recognizes that the dismissal was illegal, he makes a decision to reinstate the employee. This decision is formalized by an order or decree of the employer.
4. Issuance of an order on reinstatement:
The employer issues an order on the reinstatement of the employee, which must contain information on the recognition of the illegality of the dismissal, the date of reinstatement and the procedure for paying the appropriate compensation.
5. Payment of compensations:
The employee is paid the average wage for the period of forced absenteeism or the difference in wages for the time of performing lower-paid work.
By agreement of the parties, moral damages may be provided if the employee has suffered significant emotional or psychological stress as a result of illegal dismissal.
6. Reinstatement:
The employee is reinstated at his previous workplace and begins to perform his duties from the day specified in the reinstatement order.
Illegal dismissal of a lawyer. Important points.
- Documentation: All actions must be properly documented to avoid further legal disputes.
Communication: The employer and employee must maintain open and transparent communication to ensure a successful renewal process.
Agree terms: It is important to agree all terms of renewal and compensation payments so that both parties are satisfied with the outcome.
An example of a reinstatement order:
- ORDER
About resume at work
In connection with the recognition of the dismissal of PIB as illegal, in accordance with Art. 235 of the Labor Code of Ukraine,
I ORDER:
1. Update the full name in the position [position name] from [date].
2. Pay PIB the average salary for the period of forced absenteeism from [date] to [date] in the amount of [amount].
3. To oblige [responsible unit/person] to draw up relevant documents and make the necessary payments.
- Date: [date] Signature: [signature]
This algorithm allows you to resolve the issue of reinstatement without the need to go to court, if the employer and employee have reached a mutual understanding.
The algorithm for reinstatement of an illegally dismissed employee by a court decision includes several stages that involve both the employee's and the employer's actions. Here is a detailed algorithm of this process:
Stage 1: Preparation and submission of a lawsuit to the court.
Collection of evidence:
- The employee collects all the necessary evidence of illegal dismissal (a copy of the dismissal order, explanatory notes, testimony of colleagues, etc.).
Preparation of a statement of claim:
- The employee prepares a statement of claim in which he indicates the circumstances of the dismissal, provides evidence of its illegality and formulates demands for reinstatement and payment of compensation.
Submission of a claim to the court:
- The claim is submitted to the court at the location of the employer or at the place of residence of the employee.
Stage 2: Trial.
Appointment of the court session:
- The court appoints the date and time of the court session and informs the parties thereof.
Consideration of the case in court:
- The court examines the case, examines the evidence provided, listens to witnesses and arguments of the parties.
Judgment of the court:
- The court makes a decision on reinstatement of the employee if it finds the dismissal illegal. The court can also oblige the employer to pay compensation to the employee for forced absenteeism.
Stage 3: Execution of the court decision.
Obtaining a court decision:
- The employee receives a copy of the court decision.
Employer's message:
- The employee or the court notifies the employer of the court's decision. The court decision can be sent to the employer officially by mail.
Implementation of the decision by the employer:
- The employer must immediately comply with the court's decision, issue an order to reinstate the employee and ensure payment of appropriate compensation.
Issuance of renewal order:
- The employer issues an order on the reinstatement of the employee, which contains information about the date of reinstatement and the procedure for payment of compensation.
Stage 4: Actions in case of non-compliance with the court decision.
Appeal to the executive service:
- If the employer does not comply with the court decision voluntarily, the employee applies to the enforcement service for enforcement of the court decision.
Enforcement of the decision:
- The executive service takes measures to forcibly restore the employee to work and collect the appropriate compensation from the employer.
An example of an order to resume work by a court decision:
- ORDER
About resume at work
According to the decision of [name of the court] dated [date of the decision] in case No. [case number], in connection with the recognition of the dismissal of the full name as illegal,
I ORDER:
1. Update the full name in the position [position name] from [date].
2. Pay PIB the average salary for the period of forced absenteeism from [date] to [date] in the amount of [amount].
3. To oblige [responsible unit/person] to draw up relevant documents and make the necessary payments.
Date: [date] Signature: [signature]
Reinstatement lawyer / illegal dismissal lawyer. The procedure for renewing an employee based on a court decision requires strict compliance with legal requirements and timely performance of all necessary actions. If the court decision is not implemented voluntarily, the employee has the right to apply to the enforcement service for enforcement of the decision.
