Victoria Polishchuk, a lawyer, mediator, Head of the Labor Law Committee of the National Bar Association of Ukraine, and head of the Labor Law and Social Security Center at the National Academy of Advocacy of Ukraine, shared practical tips on employee reinstatement during a professional development event for lawyers at the Higher School of Advocacy.
The lecturer thoroughly analyzed the topic of employee reinstatement with the participants, focusing on:
- 1. Employee reinstatement procedure: without a court decision and with an existing court decision
- 2. Judicial practice and practical advice
- 3. Challenges during wartime. Documentary basis
Regarding practical advice on employee reinstatement, the focus is on the following:
1. Employee reinstatement procedure: without a court decision and with an existing court decision
- Employee reinstatement at work without a court decision:
Legislative framework:
- Labor Code of Ukraine;
- Instruction on the procedure for keeping employees’ employment records, approved by the Ministry of Labor of Ukraine, Ministry of Justice of Ukraine, Ministry of Social Policy of Ukraine No. 58 dated 29.07.1993;
- Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine regarding the accounting of employee work in electronic form”.
Main points:
1) The employee is reinstated to the same position.
2) The employer must pay the average earnings for the entire period of forced absence (regardless of duration); moral damages if proven in court and provided for in the court decision; legal costs if the decision is in favor of the employee.
Employer’s main actions:
1) Issue an order for reinstatement.
2) Make an entry in the employment record book: “Reinstated in the position according to court decision No. … dated …”.
3) Pay compensation.
4) Provide a workplace (cannot replace with another without the employee’s consent).
The Labor Code of Ukraine does not define the concept of “reinstatement at work” nor establish the procedure for implementing the relevant decision. Partly, the conditions under which a court decision on reinstatement at work is considered compulsorily enforced are stipulated in Article 65 of the Law on Enforcement Proceedings.
The implementation of a decision on reinstatement at work is considered completed from the moment of issuing an order for the employee’s reinstatement at work and the actual admission of the employee, reinstated at work by a court decision, to the performance of previous duties. However, the employee must be informed.
Action algorithm:
- Summon the employee to work
- Issue an order for the employee’s reinstatement at work. Employee reinstatement at work takes place from the date of dismissal of the employee. Inform the employee of the reinstatement order in person.
- Make an entry in the employment record book (if it is paper-based).
- Pay the employee the average earnings for the period of forced absence (from the date of issuing the dismissal order). Moral damages are not paid. The obligation to pay arises only based on a court decision.
- Allow the employee to perform work duties. Submit an updated job description for signature (if necessary).
- Employee reinstatement at work with an existing court decision:
A decision on the reinstatement at work of an unlawfully dismissed or transferred to another job employee, made by the body considering the labor dispute, must be immediately enforced (part 7 of Article 235 of the Labor Code).
Immediate enforcement of a court decision means that it is enforced not from the moment it acquires legal force (as provided for the vast majority of court decisions) but immediately from the time it is announced at a court hearing, ensuring quick and real protection of the rights and interests of citizens and the state.
1. Issue an order or directive for reinstatement at work. Reinstatement at work occurs not from the date of the court’s relevant decision but from the date of the employee’s dismissal, which is declared invalid according to this decision. The employer must prepare the order regardless of whether the court decision will be further appealed.
2. Changes to the employee’s employment record book are made in accordance with clause 2.10 of Instruction No. 58, in particular, the entry made in accordance with the order declared illegal by the court is recognized as invalid.
There is no need to notify the acceptance of the reinstated employee.
Average earnings:
When making a decision on reinstatement at work, the body considering the labor dispute simultaneously makes a decision on paying the employee the average earnings for the period of forced absence or the difference in earnings for the period of performing lower-paid work, but not more than for one year.
If the application for reinstatement at work is considered for more than one year not due to the employee’s fault, the body considering the labor dispute makes a decision on paying the average earnings for the entire period of forced absence.
If incorrect formulation of the reason for dismissal in the employment record book hindered the employee’s employment, the body considering the labor dispute simultaneously makes a decision to pay the employee the average earnings for the period of forced absence in the manner and under the conditions provided for in part 2 of this article.
In case of delay in issuing the employment record book due to the fault of the owner or the authorized body, the employee is paid the average earnings for the entire period of forced absence.
When making a decision on establishing labor relations with an employee who performed work without concluding an employment contract and determining the period of such work or work on a part-time basis, in case of actual performance of work on a part-time basis, in case of actual performance of work full-time, established at the enterprise, institution, organization, the body considering the labor dispute simultaneously makes a decision on calculating and paying the employee a salary not lower than the average salary for the relevant type of economic activity in the region during the relevant period, without taking into account the actually paid salary, on calculating and paying income tax and the amount of the single contribution for compulsory state social insurance for the established period of work.
According to Article 236 of the Labor Code, in case of delay by the owner or the authorized body in executing the decision of the body considering the labor dispute on reinstatement at work of an unlawfully dismissed or transferred to another job employee, this body makes a decision to pay the employee the average earnings or the difference in earnings for the period of delay.
2. Judicial practice and practical advice
Judicial practice – the ruling of the Mykolaiv Court of Appeal dated 08.02.2023 in case No. 486/399/21:
Position of the Court of Appeal. The case materials indicate the presence of all elements of civil liability in the respondent’s actions, namely:
- unlawful behavior manifested in the issuance of an illegal dismissal order for the person; damage caused by recognizing it as illegal and cancellation in the form of payment of the average earnings for the period of forced absence to the unlawfully dismissed employee;
- causal relationship between its causation and the respondent’s unlawful behavior, as well as the fault of the damage-causing party, as the head of the institution who issued an illegal order.
The ruling of the Supreme Court dated 19.12.2022 in case No. 686/11075/21 (proceedings No. 61-3135sv22) regarding material liability for illegal dismissal or transfer of an employee to another job:
The appellate court, rejecting the plaintiff’s claims against ENTITY_1, came to a reasoned conclusion that the latter cannot be held liable for compensating the damage caused by paying the forced absence compensation to ENTITY_3, as the orders issued on December 11, 2015, No. 81-k and December 28, 2015, No. 82-k were derived from the orders of the State Mining Supervision of Ukraine dated December 10, 2015, No. 293-k and December 28, 2015, No. 303-k.
Decision in case No. 554/7669/21 (proceedings No. 2/541/91/2025) dated 08.05.2025:
The plaintiff, a former director of a branch of PJSC CB “PrivatBank”, challenged his dismissal on the basis of clause 1 part 1 of Article 40 of the Labor Code of Ukraine – changes in work organization. The claim demanded the annulment of the dismissal order, reinstatement in the position, recovery of the average earnings for the period of forced absence, compensation for legal assistance costs.
The bank argued that the dismissal was lawful within the framework of the reorganization approved by the supervisory board. The plaintiff had the opportunity to familiarize himself with the vacancies on the bank’s website and participate in the competition.
PrivatBank did not offer all available vacancies directly but only through participation in the competition. The court pointed out that such a form is not an actual transfer offer, as required by part 3 of Article 49-2 of the Labor Code. Information through the website does not replace a personal offer with specific conditions (job instructions). Evidence of the employee’s refusal to sign the warning is inadequate (a report was drawn up without specifying who delivered the document and during the employee’s sick leave).
3. Challenges during wartime. Documentary basis
1) Another employee is already working in the reinstated employee’s position.
If another employee is already working in the reinstated employee’s position at the time of reinstatement, they must be dismissed based on clause 6 of the first part of Article 40 of the Labor Code. However, dismissal on this basis is possible only if it is impossible to transfer the employee to another job with their consent.
2) The reinstated employee does not report to work.
- Record ‘AWOL’ in the attendance register.
- Do not pay the salary.
- Attempt to obtain written explanations.
The absence of an employee at work must be documented by an act of the employee’s absence from work. The legislation does not establish requirements for the form of the act, so it is submitted in any written form and signed by at least two employees (e.g., an accountant and a director). The act must record the fact of the employee’s absence from work during the working day. The act on the employee’s absence from work is drawn up on the day of the employee’s absence. These documents must specify not only the date but also the specific time of the employee’s absence. After documenting the fact of the employee’s absence from work, the cause of such absence must be determined.
3) To determine the reason for the employee’s absence from work, the employer may at its discretion:
1) Call the employee or their family members;
2) Write to the employee in accessible messengers;
3) Send an email to the employee’s personal inbox;
4) Visit the employee at their registered or actual place of residence;
5) Send a letter notifying of delivery with a request for an explanation of their absence (Supreme Court ruling dated 16.01.2023 in case No. 568/487/22 (proceedings No. 61- 11728sv22).
4) The employer is in liquidation. How to reinstate an employee in this case?
The possibility of reinstatement depends on two important factors, namely the degree of completion of the liquidation procedure and the presence of legal successors of the legal entity being liquidated.
- liquidation – a form of termination of a legal entity in which all its rights and obligations cease.
- in case of liquidation, the entire staff is reduced, and the entire staff of employees is liquidated.
- succession – the transfer of a subjective right (and in a broad sense, also a legal obligation) from one person to another (successor).
- form of termination of a legal entity – reorganization or liquidation.
- stage of completion of the liquidation procedure – completed or ongoing.
- separately for public legal entities – the presence or absence of a new holder of the powers of the liquidated state body (institution, organization).
- if a court decision on reinstatement was made before the completion of the liquidation procedure, i.e., before the relevant entry was made in the Unified State Register, then the liquidating employer has no legal basis not to execute the decision or delay its execution.
- if this is the reorganization of the employer, i.e., merger, accession, division, separation, transformation within the meaning of part one of Article 104 of the Civil Code of Ukraine, then the relevant court decisions on reinstatement must be executed by its legal successor formed as a result of such reorganization. This conclusion also follows from the provisions of parts five and six of Article 36 of the Labor Code, which contain the following provisions: the change in the subordination of the enterprise, institution, organization does not terminate the employment contract; in case of a change of employer, as well as in case of reorganization (merger, accession, division, separation, transformation), the employment contract of the employee continues.
5) What about state bodies?
If it is stated ‘with the transfer of powers, tasks, and functions they performed to newly created or existing state bodies, institutions, and organizations,’ then it is reorganization with succession.
Therefore, the legal successors are obliged to immediately execute court decisions on reinstatement at work of employees unlawfully dismissed by their predecessors.
6) The Employment Center sends a request to the enterprise. Practical case: The employee was registered as unemployed and after reinstatement at work, the employer receives a request from the Employment Center.
Ukrainian Law No. 1533-III. Article 35: the employer is obliged to provide the central executive body implementing the state policy in the field of population employment and labor migration, in the prescribed manner in accordance with the legislation, with information about:
- hiring employees;
- wage size and use of employees’ working time;
- payment of partial unemployment benefits to insured persons;
- use of the Fund’s funds for other purposes specified by this Law.
Main conclusion: at the request of the state employment service (its territorial body), the employer is obliged to provide documents related to the former employee reinstated by a court decision.
If the court decision on the employee’s reinstatement at work acquires legal force, it is necessary to compensate the Fund for the amount of unemployment benefits received by the reinstated employee as per the court decision.
Source – https://tinyurl.com/myp8h96t