The review was prepared by Viktoria Polishchuk, a lawyer, mediator, Head of the Labor Law Committee of NAAU, head of the Center for Labor Law and Social Security of the Higher Academy of Sciences of NAAU.
Resolution of the Supreme Court as part of the panel of judges of the First Judicial Chamber of the Civil Court of Cassation dated October 2, 2024 in case No. 754/8217/23 (proceedings No. 61-2489св24) regarding the suspension of the employment contract
According to the response of the Ministry of Reintegration of the Temporarily Occupied Territories of Ukraine to the lawyer’s request dated May 17, 2023, the city of Chernobyl was temporarily occupied by the Russian Federation from February 24, 2022 to March 31, 2022.
According to the response order No. 33-22 of February 24, 2022, during the period of martial law, the “Ekocentr” state-of-the-art state-of-the-art state-of-the-art state-of-the-art enterprise was shut down due to force majeure.
The defendant’s order No. 44-22 dated April 1, 2022 extended from April 1, 2022 for the period of martial law in Ukraine at the “Ekocentr” state-of-the-art state-of-the-art processing plant – the stoppage of the enterprise’s work caused by force majeure in relation to personnel who are temporarily not involved in the performance of official duties. tasks (works) according to the attached list.
By order of the defendant dated September 16, 2022 No. 79-22, as of September 19, 2022, the company layoff announced by order No. 33-22 dated February 24, 2022 was terminated.
By orders of the defendant dated September 16, 2022 No. 80-22, dated November 10, 2022 No. 95-22, dated November 18, 2022 No. 97-22, dated February 8, 2023 No. 16-23, dated February 15, 2023 No. 17- 23, the employment contract was suspended, respectively, from September 19 2022 to November 11, 2022 inclusive, from November 12, 2022 to November 20, 2022 inclusive, from November 21, 2022 to February 8, 2023 inclusive, from February 9, 2023 to February 18, 2023 inclusive, from February 19, 2023 until May 9 2023 inclusive, with the possibility of extending the specified period, but no longer than for the period of martial law or until the restoration of the ability of both sides of the labor relationship to perform the duties provided for in the labor contract with the employees of the “Ekocentr” DSP in accordance with the list.
The suspension of labor relations was caused, among other things, by the destruction/theft of the means of production, as evidenced by inventory descriptions.
The suspension of labor relations took place with employees, whose list was attached to each order. At the same time, as can be seen from the extracts from the list of employees of the “Ekocentr” DSP, with whom the employment contract is suspended for the period of martial law, available in the case file, the surname PERSON_1 was indicated under serial number No. 26 (appendix to the order of September 16, 2022 No. 80-22), No. 41 (addendum to the order dated November 10, 2022 No. 95-22), No. 41 (addendum to the order dated November 18, 2022 No. 97-22), 52 (addendum to the order dated February 8, 2023 No. 16-23), No. 4 (addendum to the order dated February 15, 2023 No. 17-23).
Taking into account that the suspension of labor relations was temporary, that is, the contested orders outlined the periods for which the suspension of labor relations was introduced, which was not of a long-term nature, it was due to objective circumstances related to the destruction and theft of means of production and property, concerned a significant number of employees, and not just the plaintiff, the panel of judges agrees that the suspension of employment with PERSON_1 was not discriminatory and was not a hidden disciplinary punishment.
The text of the resolution can be read in more detail by calling: https://reyestr.court.gov.ua/Review/122253054
Resolution of the Supreme Court as part of the panel of judges of the Third Judicial Chamber of the Civil Court of Cassation dated 02.10.2024 in case No. 755/8135/22 (proceedings No. 61-11699св23) regarding changes in essential working conditions
The circumstances of the case. On July 20, 2022, in her e-mail box, she found the order dated July 20, 2022 No. 145-K “On changing the essential working conditions”, by which the employer decided to change the essential working conditions from July 21, 2022, set her salary in the amount of 6 UAH 500.00 and a part-time working day lasting 2 hours from 09:00 a.m. to 11:00 a.m. with a five-day work week with wages proportional to the time worked. The change in essential working conditions is substantiated by changes in the organization of work at PJSC “SCM” due to the limited functioning and decrease in the volume of economic activity of the UMG holding. She was not aware of the changes in the work organization of PJSC “SKM” and she was not familiarized with the administrative documents of PJSC “SKM” in connection with the changes in the work organization, therefore she did not agree to the change of working conditions. Similar changes in working conditions were not implemented for other employees of the internal audit department.
He considers this order illegal, since it does not specify exactly what changes have taken place in the organization of work at PJSC “SCM” and how exactly such changes necessitate the revision of essential working conditions for it.
On July 21, 2022, she sent a statement of disagreement with the changed working conditions and on the same day received by e-mail the order dated July 21, 2022 No. 146-K on dismissal from work in connection with the refusal to continue working in connection with by changing the essential working conditions on the basis of Clause 6 of Part 1 of Article 36 of the Labor Code of Ukraine.
Reasoning of the Court. In the cassation complaint, the applicant refers to paragraph 3 of the second part of Article 389 of the Civil Code of Ukraine, in particular notes that there is no conclusion of the Supreme Court regarding the violation of the procedure for changing the essential working conditions in relation to the norms of the second and third parts of Article 95 and Article 103 of the Labor Code of Ukraine and regarding the demarcation categories “change in essential working conditions” and “change in working conditions”.
In the decision of the Supreme Court as part of the panel of judges of the Third Judicial Chamber of the Civil Court of Cassation dated May 22, 2023 in case No. 212/2542/22 (proceedings No. 61-162sv23) it is stated that “according to Clause 2 of Chapter XIX “Final Provisions” of the Labor Code of Ukraine ( which is effective from March 24, 2022) during the martial law introduced in accordance with the Law of Ukraine “On the Legal Regime of Martial Law”, the restrictions and features of the organization of labor relations established by the Law of Ukraine “On the Organization of Labor Relations in the Conditions of Martial Law” apply. In accordance with the first part of Article 1 of the Law of Ukraine “On the Organization of Labor Relations in Martial Law” dated March 15, 2022 No. 2136-IX (which entered into force on March 24, 2022) (hereinafter – Law of Ukraine No. 2136-IX) for the period of validity martial law, restrictions on the constitutional rights and freedoms of a person and a citizen provided for by Articles 43 and 44 of the Constitution of Ukraine are introduced. According to the second part of Article 3 of the Law of Ukraine No. 2136-IX, during the period of martial law, the notification of the employee about the change in the essential conditions of work and the change in the conditions of payment of work, provided for in the third part of Article 32 and Article 103 of the Code of Labor Laws of Ukraine, is carried out no later than before the introduction of such conditions This Law is effective during the period of martial law introduced in accordance with the Law of Ukraine “On the Legal Regime of Martial Law” (Clause 3 of the Final Provisions of the Law of Ukraine No. 2136-IX)”.
Thus, the applicant’s reference to the defendant’s violation of Article 103 of the Criminal Code of Ukraine is unfounded.
Article 32 of the Labor Code of Ukraine specifies that there are cases of changes in essential working conditions, in particular, changes in the systems and amounts of wages, benefits, working hours, establishing or canceling part-time working hours, combining professions, changing ranks and job titles, and others.
Thus, the concept of “change in essential working conditions” is general, and the concept of “change in working conditions” is one of the grounds for changing essential working conditions.
Based on the above, the Supreme Court does not take into account the reference in the cassation complaint about the lack of a conclusion on the issue of the application of the second and third parts of Article 95 and Article 103 of the Criminal Code of Ukraine, since there is an opinion of the Supreme Court on the issue of the application of legal norms in similar legal relations and the arguments of the cassation appeal of the specified the conclusions of the courts of the first and appellate instances are not refuted and are reduced to a reassessment of the evidence.
The text of the resolution can be read in more detail by calling: https://reyestr.court.gov.ua/Review/122153596
Resolution of the Supreme Court as part of the panel of judges of the First Judicial Chamber of the Civil Court of Cassation dated 03.10.2024 in case No. 751/5573/22 (proceedings No. 61-4661св24) regarding settlement upon dismissal
Upon dismissal of an employee, payment of all sums due to him from the enterprise is carried out on the day of dismissal. If the employee did not work, then the specified amounts must be paid no later than the next day after the dismissed employee submits a claim for settlement.
According to Article 83 of the Labor Code of Ukraine, in case of dismissal of an employee, he is paid monetary compensation for all unused days of annual leave, as well as additional leave for employees who have children or an adult child with a childhood disability of subgroup A of group I.
According to Part 1 of Article 116 of the Labor Code of Ukraine, upon dismissal of an employee, payment of all sums due to him from the enterprise, institution, or organization shall be made on the day of dismissal. If the employee did not work on the day of dismissal, then the specified amounts must be paid no later than the next day after the dismissed employee submits a claim for settlement. The owner or the body authorized by him must inform the employee in writing about the accrued amounts due to the employee upon dismissal before paying the specified amounts.
According to the first part of Article 117 of the Labor Code of Ukraine, in the event of non-payment due to the fault of the owner or the body authorized by him of the sums due to the dismissed employee within the terms specified in Article 116 of this Code, in the absence of a dispute about their amount, the enterprise, institution, organization must pay the employee his average earnings for the entire time of delay until the day of actual settlement, but not more than six months.
If there is a dispute about the amounts due to the dismissed employee, the employer must pay the compensation specified in this article if the dispute is resolved in favor of the employee. If the dispute is partially resolved in favor of the employee, the amount of compensation for the time of delay is determined by the body that makes a decision on the merits of the dispute, but no more than for the period established by part one of this article (part two of article 117 of the Labor Code of Ukraine).
Assessing the collected evidence, the courts of previous instances took into account the provisions of the Law of Ukraine “On Wages”, the Labor Code of Ukraine, the Industry Agreement for 2017-2021, clauses 6, 9 of Section IV of the Collective Agreement for 2017-2018, the Collective Agreement for 2021-2024 , Provisions on bonuses for managers, professionals and technical specialists of JSC “Oblteplokomunenergo”, which are annexes No. 2 to the Collective Agreements, Regulations on the establishment and conditions of payment of a monthly supplement to the tariff rate or official salary to lawyers of the main professions for continuous work experience at JSC “Oblteplokomunenergo” , which are appendices No. 23 to the Collective Agreements, Regulations on the establishment and provision of financial assistance to JSC “Oblteplokomunenergo” employees, which are appendices No. 8 to the Collective Agreements, evaluated the collected evidence as a whole and each piece of evidence separately, and came to a well-founded conclusion that , that the defendant made a full settlement with PERSON_1 during her dismissal, charging her 171,739.19 UAH on September 26, 2022, of which: 95,294.19 UAH – compensation for unused vacation, 76,445.00 UAH – severance pay.
At the same time, JSC “Oblteplokomunenergo” paid her compensation in the amount of UAH 113,756.75, after deducting contributions and taxes in the amount of UAH 32,123.08 and the paid advance in accordance with the order of the chairman of the board dated March 1, 2022, on account of wages – 23,540.36 UAH
The norms enshrined in Articles 116 and 117 of the Labor Code of Ukraine are aimed at ensuring proper financial conditions for dismissed employees, as they guarantee that they will receive, in accordance with the law, all payments on the day of dismissal and, at the same time, encourage employers not to violate their obligations in terms of full settlement with the employee.
Therefore, if the employer fails to comply with the requirements of Article 116 of the Labor Code of Ukraine, the employer will face the consequences provided for in Article 117 of the Labor Code of Ukraine. The employer does not bear the responsibility provided for in Article 117 of the Labor Code of Ukraine in the absence of his fault. The employer must prove his innocence (see the Supreme Court ruling of November 23, 2022 in case No. 635/3473/20 (proceedings No. 61-12426св21)).
Having established that upon the dismissal of PERSON_1, the defendant fulfilled his obligation to settle with her, in particular, the payments stipulated in the Collective Agreements and their appendices, and the plaintiff did not prove that the defendant owed her wages, which is her duty by virtue of the requirements of Articles 12, 81 of the Civil Code of Ukraine, the court of first instance, with the conclusions of which the court of appeal agreed, reached a well-founded conclusion that there are no grounds for applying to the defendant the liability provided for in Article 117 of the Criminal Code of Ukraine.
Therefore, the arguments of the cassation appeal about the defendant’s unilateral violation of the terms of the collective agreement do not deserve attention.
The text of the resolution can be read in more detail by calling: https://reyestr.court.gov.ua/Review/122092227
Resolution of the Supreme Court as part of the panel of judges of the Third Judicial Chamber of the Civil Court of Cassation dated October 11, 2024 in case No. 757/18577/22-ts (proceedings No. 61-4547св24) regarding dismissal by agreement of the parties
Courts of previous instances established that there was an agreement between the parties to terminate the employment contract by mutual consent, which is confirmed by PERSON_1’s statement dated February 21, 2022. The dismissal order was issued on March 1, 2022.
On March 3, 2022, PERSON_1 applied to declare her previous statement dated February 21, 2022 invalid.
However, the subsequent change of the plaintiff’s own decision does not affect the validity of the agreement reached with the employer (without his consent to such a change), especially since such a change of PERSON_1’s decision took place after the dismissal order was issued.
Thus, JSC “Ukrainian Railways” complied with the procedure for terminating the employment contract by agreement of the parties, the courts have not established circumstances that would indicate a violation of labor legislation in relation to PERSON_1, the order to terminate the employment contract dated March 1, 2022 contains all the necessary details, in particular , the date of dismissal, the reasons and grounds for dismissal, and therefore the courts of previous instances reached a well-founded conclusion that there are no legal grounds for satisfying the claim.
At the same time, the courts found out: whether there really was an agreement between the parties to terminate the employment contract by mutual consent; whether the employee expressed his will to terminate the employment contract at the time of issuing the dismissal order; whether the employee did not declare the cancellation of the previous agreement of the parties regarding the termination of the contract by agreement of the parties; whether there was consent of the owner or the body authorized by him to annul the agreement of the parties to terminate the employment contract. If the employer and the employee have agreed on a certain date of termination of the employment contract, the employee does not have the right to withdraw his resignation. Such an agreement can be canceled only by mutual agreement of the owner or the body authorized by him and the employee. Thus, the provisions of the Labor Code of Ukraine do not stipulate the obligation for the owner or the body authorized by him to accept the employee’s withdrawal of his application for dismissal in the event of reaching an agreement on dismissal by agreement of the parties.
Similar conclusions are set out in the Supreme Court’s decision of August 7, 2024 in case No. 757/18580/22-ts.
The text of the resolution can be read in more detail by calling: https://reyestr.court.gov.ua/Review/122253112
Resolution of the Supreme Court as part of the panel of judges of the Second Judicial Chamber of the Civil Court of Cassation dated October 15, 2024. in case No. 537/1348/22 (proceeding No. 61-2988св24) regarding dismissal for absenteeism
Absenteeism is the absence of an employee from work without valid reasons for more than three hours (continuously or in total). To dismiss an employee on such grounds, the owner or the body authorized by him must have evidence confirming the employee’s absence from the workplace for more than three hours during the working day.
These conclusions are set out in the Supreme Court rulings dated December 6, 2023 in case No. 727/3114/21, dated December 22, 2023 in case No. 756/8875/21.
In order to establish the employee’s admission of absenteeism, it is necessary to properly record the very fact of the employee’s absence from work and clarify the seriousness of the reason for such absence. The main criterion for classifying the reasons for an employee’s absence from work as serious is the presence of objective circumstances independent of the employee’s will, which completely exclude the employee’s fault.
Such conclusions are set out in the decision of the Supreme Court of December 20, 2023 in case No. 757/45015/20-ts.
The employee’s absence from work must be recorded with an act on the employee’s absence from work. The legislation does not set requirements for the form of the act, so it is submitted in an arbitrary written form and signed by at least two employees (for example, an accountant and a director). The act must record the fact of the employee’s absence from work during the working day.
An act on the absence of an employee at work is drawn up directly on the day of the employee’s non-appearance at work. In such documents, not only the date, but also the specific time of the employee’s absence must be specified.
After recording the fact of an employee’s absence from work, it is necessary to find out what caused such absence.
In order to find out the reason for the employee’s absence from work, the employer may at his discretion: 1) call the employee or his family members; 2) write to the employee in available messengers; 3) send a letter to a personal e-mail box; 4) visit the employee at the place of registration or place of actual residence; 5) send a letter with a notice of delivery with an offer to provide an explanation for your absence.
The legislation does not contain an exhaustive list of valid reasons for absence from work, therefore, in each case, an assessment of the validity of the reason for absence from work is given based on specific circumstances. Obviously, good reasons should be objective circumstances that definitely prevented the employee from coming to work and could not be eliminated by him.
These conclusions are set out in the Supreme Court rulings dated April 28, 2022 in case No. 761/48981/19, dated June 14, 2023 in case No. 727/3770/21.
In accordance with Article 148 of the Labor Code of Ukraine, disciplinary action is applied by the owner or the body authorized by him directly upon discovery of a misdemeanor, but no later than one month from the day of its discovery, not counting the time the employee was dismissed from work due to temporary incapacity or his stay on vacation. Disciplinary sanctions may not be imposed later than six months from the date of committing the misdemeanor.
Before applying a disciplinary sanction, the owner or the body authorized by him must demand written explanations from the violator of labor discipline. Only one disciplinary sanction may be applied for each violation of labor discipline. When choosing the type of penalty, the owner or the body authorized by him must take into account the severity of the misdemeanor and the damage caused by it, the circumstances under which the misdemeanor was committed, and the previous work of the employee. The recovery is announced in an order (order) and notified to the employee against a receipt (Article 149 of the Labor Code of Ukraine).
At the same time, the legal assessment of a disciplinary offense is carried out on the basis of finding out all the circumstances of its commission, including taking into account the employee’s written explanation.
Failure by the owner or the body authorized by him to demand a written explanation from the employee and the failure to receive such an explanation is not grounds for canceling a disciplinary sanction, if the fact of a violation of labor discipline is confirmed by the evidence presented to the court (see the ruling of the Supreme Court of January 26, 2024 in case No. 643 /19450/20, dated February 14, 2024 in case No. 537/4343/20).
According to the acts on absence from work dated May 30, 2022 and dated May 31, 2022 PERSON_1 was absent from the workplace on May 30, 2022 and May 31, 2022 without valid reasons.
Courts of previous instances established that evidence of the validity of the reasons for the plaintiff’s absence from work was not provided.
Establishing the circumstances of the case, research and evaluation of the evidence is the prerogative of the courts of the first and appellate instances. This is provided for by Articles 77, 78, 79, 80, 89, 367 of the Civil Code of Ukraine. The court of cassation is not authorized to interfere in the evaluation of evidence (decision of the Great Chamber of the Supreme Court of January 16, 2019 in case No. 373/2054/16-ts (proceedings No. 14-446ts18)).
Taking into account the fact that PERSON_1 did not show up for work on May 30, 2022 and May 31, 2022 without valid reasons, the court of first instance, with the conclusions of which the court of appeal also agreed, came to the well-founded conclusion that the defendant legitimately issued order No. 52 of May 30, 2022 “About the announcement of a reprimand”, as well as the order No. 001/165 dated May 31, 2022 on the dismissal of PERSON_1 on the basis of paragraph 4 of the first part of Article 40 of the Labor Code of Ukraine, and therefore there are no grounds for his reinstatement.
The text of the resolution can be read in more detail by calling: https://reyestr.court.gov.ua/Review/122333131
Resolution of the Supreme Court as part of the panel of judges of the First Judicial Chamber of the Civil Court of Cassation dated 23.10.2024 in case No. 760/23063/21 (proceedings 61-17753св23) regarding the average earnings of persons called up for military service
The third part of Article 119 of the Criminal Code of Ukraine, as amended from July 19, 2022, is applicable to disputed relations, because the latter take place in the time period after the entry into force of the specified law.
In accordance with part two of the article of the Law of Ukraine “On the Organization of Labor Relations in the Conditions of Martial Law” (as amended by the Law of July 1, 2022 No. 2352-IX), restrictions on the constitutional rights and freedoms of a person and a citizen provided for in the articles are introduced during the period of martial law 43, 44 of the Constitution of Ukraine.
In accordance with the legal position of the Constitutional Court of Ukraine, set forth in Decision No. 20-рп/2011 dated December 26, 2011, in the case of constitutional submissions of 49 People’s Deputies of Ukraine, 53 People’s Deputies of Ukraine and 56 People’s Deputies of Ukraine regarding the conformity of Article 4 of the Constitution of Ukraine (constitutionality) of Chapter VII “Final Provisions” of the Law of Ukraine “On the State Budget of Ukraine for 2011”, the social and economic rights provided for by the laws are not absolute. The mechanism of realization of these rights can be changed by the state, in particular, due to the impossibility of their financial support through proportional redistribution of funds in order to preserve the balance of the interests of the entire society. In addition, such measures may be due to the need to prevent or eliminate real threats to the economic security of Ukraine, which, according to the first part of Article 17 of the Constitution of Ukraine, is the most important function of the state.
The Constitutional Court of Ukraine in point 2.3. Decision of May 22, 2018 No. 5-р/2018 in the case of the constitutional submission of 49 People’s Deputies of Ukraine regarding compliance with the Constitution of Ukraine (constitutionality) of Clause 12 of Chapter I of the Law of Ukraine “On Amending and Recognizing Some Legislative Acts of Ukraine as Having Lost their Validity” » of December 28, 2014 No. 76-VIII formulated a conclusion according to which the state, based on existing financial and economic capabilities, has the right to resolve social issues at its own discretion. That is, in the event of a significant deterioration of the financial and economic situation, the emergence of conditions of war or a state of emergency, the need to ensure the national security of Ukraine, modernization of the social protection system, etc., the state can carry out an appropriate redistribution of its expenses in order to maintain a fair balance between the interests of individuals and society. However, the state cannot resort to restrictions that violate the essence of the constitutional social rights of individuals, which is directly related to the state’s obligation to provide adequate living conditions compatible with human dignity.
Paragraph 3 of the said decision states that the Verkhovna Rada of Ukraine, based on the existing financial and economic capabilities of the state and with the aim of maintaining a fair balance between the interests of individuals and society, may introduce, change, cancel or renew such benefits, since they are not of a fundamental nature , and, therefore, cannot be considered as constitutional rights, freedoms and guarantees of their realization.
In particular, starting from July 19, 2022 (the entry into force of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on Optimizing Labor Relations” dated July 1, 2022 No. 2352-IX), the defendant is exempted from the obligation to keep for the plaintiff, called up for military service , average earnings, since the relevant prescriptions of the third part of Article 119 of the Labor Code of Ukraine are excluded (lost their validity).
These conclusions are consistent with the conclusions of the Supreme Court, set forth in the resolutions dated June 28, 2023 in case No. 753/12209/22 (proceedings No. 61-5606св23), dated September 6, 2023 in case No. 204/10983/22 (proceedings No. 61- 11200св23), dated September 14, 2023 in case No. 332/1195/23 (proceedings No. 61-11828св23), dated September 14, 2023 in case No. 754/5488/22 (proceedings No. 61-6588св23), dated October 18, 2023 in case No. 303/7508/22 (proceedings No. 61-10153св23), on December 18, 2023 in case No. 449/990/22 (proceedings No. 61-10685св23).
Therefore, for employees conscripted for military service for a special period for the period before its end or until the day of actual release, the place of work, position, and until July 19, 2022 – the average salary at the enterprise in which they worked at the time of conscription are kept.
Being in the military service since July 27, 2022, the plaintiff could not perform labor duties, and also did not have the right to preserve the average earnings during his time in the military service, and therefore the court decisions regarding the recovery of the average earnings are subject to change, by reducing the collected from the defendant in favor of the plaintiff of the amount.
The text of the resolution can be read in more detail by calling: https://reyestr.court.gov.ua/Review/122578418