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Kaploukh Victoria
Attorney
Ukraine / Kharkiv
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Publication date: 23.05.2024
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Publication date: 23.05.2024
Dismissal in connection with the reduction of the position or staff is one of the types of dismissal at the initiative of the employer. This process is regulated by the legislation of Ukraine, in particular the Labor Code of Ukraine.
Substantive provisions:
- 1. Grounds for dismissal:
Reduction in the number or staff of employees (Clause 1 of Article 40 of the Labor Code of Ukraine).
2. Notification of the employee:
The employer is obliged to warn the employee in writing about the future dismissal no later than two months before the dismissal (Article 49-2 of the Labor Code of Ukraine).
3. Offer of other work:
The employer must offer the employee another job at the enterprise, if there is one. If there is no suitable job or the employee refuses the offered job, then dismissal can be carried out.
4. Preferential right to stay at work:
Certain categories of employees have a preferential right to remain at work in the event of a reduction in the number or staff (Article 42 of the Labor Code of Ukraine). This includes:
Persons with higher qualifications and labor productivity.
Workers with family responsibilities (multiple children, single mothers/fathers and others).
Employees who were injured at this enterprise or have an occupational disease.
Other categories defined by legislation.
5. Payments upon dismissal:
An employee who is dismissed due to layoffs has the right to severance pay in the amount of at least the average monthly salary (Article 44 of the Labor Code of Ukraine).
Practical steps for the employer:
- 1. Downsizing planning:
Develop a reduction plan that includes the number and categories of employees to be laid off.
2. Notice of the trade union:
Notify the trade union body (if any) of the upcoming reduction and hold consultations.
3. Warning to employees:
Officially notify employees of the planned layoff within the established time frame.
4. Documentation:
Prepare relevant orders and other necessary documents for registration of dismissal.
Protection of employee rights:
- An employee who considers his dismissal illegal has the right to appeal to the court. The court can restore the employee to work, oblige the employer to pay compensation for forced absenteeism, and also compensate for moral damage.
Legal advice on dismissal - thus, dismissal in connection with the reduction of a position or staff is a complex procedure that requires strict compliance with legal requirements and careful documentation by the employer.
The procedure for dismissing employees in connection with the reduction of a position or staff requires the employer to follow certain stages and actions in accordance with the legislation of Ukraine. Below is the employer's action algorithm:
Algorithm of actions of the employer in case of dismissal due to reduction.
- 1. Downsizing planning:
Determine the need to reduce staff or the number of employees.
Draw up a reduction plan, which includes the categories of employees and the number of positions to be reduced.
2. Consultations with the trade union (if any):
Notify the trade union body about the planned reduction.
To hold consultations with the trade union body regarding a possible reduction.
3. Written notification of employees:
Notify each employee in writing of the upcoming layoff no later than two months before the scheduled date of layoff (Article 49-2 of the Labor Code of Ukraine).
The notice must be signed by the employee, confirming his reading.
4. Offer of other work:
Offer employees other vacant positions at the company, if any.
If there are no suitable vacancies or the employee refuses the offered position, continue the dismissal procedure.
5. Preparation of documents:
Issue an order to reduce staff or the number of employees.
Prepare orders for the dismissal of specific employees.
Make entries in the labor books of employees, specifying the reason for dismissal (paragraph 1 of article 40 of the Labor Code of Ukraine).
6. Settlements with employees:
Pay employees wages for time worked, compensation for unused holidays and severance pay in the amount of at least the average monthly earnings (Article 44 Labor Code of Ukraine).
7. Registration of dismissal:
Issue dismissals in the prescribed manner and issue employment books with relevant records to employees.
Documentary support.
- 1. An order to reduce staff or the number of employees:
Preparation and issuance of an order to reduce staff or the number of employees.
Inclusion in the order of the list of positions subject to reduction.
2. Notification of employees:
Issuance of written notices for each employee indicating the date of the notice.
Obtaining the employee's signature on the message as confirmation of familiarization.
3. An order to dismiss an employee:
Preparation of the dismissal order for each employee.
Making an entry in the employee's labor book about dismissal with an indication of the reason for dismissal.
4. Settlement documents:
Extraction of settlement documents for payments, including wages, compensations and severance pay.
Additional measures.
- Legal advice: The employer can seek advice from a lawyer to avoid possible violations of the law and to prevent legal disputes.
Consultation with Human Resources: Human Resources must carefully review all documents and procedures to ensure they comply with legal requirements.
Legal advice dismissal / reinstatement lawyer - ensuring compliance with all stages and requirements of the law during the dismissal of employees in connection with the reduction of the position or staff is critical to avoid legal consequences and protect the rights of both the employer and the employees.
- Thus, during the period of martial law, Article 43 of the Labor Code of Ukraine, which provides for the mandatory obtaining of the consent of the trade union for the dismissal of employees at the initiative of the employer, does not apply. This is determined by legislation governing labor relations during martial law.
Legislative grounds:
- 1. The Law of Ukraine "On the Organization of Labor Relations in the Conditions of Martial Law":
In accordance with the Law of Ukraine No. 2136-IX dated March 15, 2022 "On the organization of labor relations under martial law", some norms of labor legislation are changed or not applied during the period of martial law. In particular, this law provides for the simplification of the procedure for dismissing employees.
2. Simplified dismissal procedure:
During the period of martial law, the employer has the right to dismiss employees without agreement with trade union bodies, which greatly simplifies and speeds up the dismissal process. This also applies to layoffs due to downsizing or downsizing.
Practical aspects:
- 1. Notification of the employee:
Despite the simplification of the procedure, the employer is still obliged to notify the employee in writing about the future dismissal. It is recommended to comply with the general requirements for giving employees two months' notice before dismissal, if possible under martial law.
2. Preparation of documents:
The employer must properly complete all documents related to the dismissal, in particular, issue a dismissal order and make a corresponding entry in the employee's work book.
3. Payments upon dismissal:
The employee has the right to receive all due payments, including wages for time worked, compensation for unused vacations and severance pay in accordance with Art. 44 of the Labor Code of Ukraine.
Illegal dismissal lawyer - during the period of martial law, the employer may dismiss employees at the initiative of the employer, including in connection with a reduction in the number or staff, without obtaining the consent of the trade union. This is provided for by legislation that simplifies labor relations under martial law. However, other requirements regarding dismissal and employee benefits remain in effect.
