Legal conflicts in legislation can be used to defend one or another legal position in a case.
However, how to act in a situation, if the dispute goes beyond the legal field, and the law ceases to apply?
In accordance with Part 8 of Art. 235 of the Labor Code of Ukraine, a decision on the reinstatement of an illegally dismissed or transferred employee, made by a body that considers a labor dispute, is subject to immediate execution.
Jurisprudence and the scientific community clearly adhere to the position according to which, in case of reduction of the position in which an illegally dismissed employee worked, renewal is carried out by entering it into the current staff list or appointing an employee to an equivalent position.
The Council of Scientific and Legal Expertise at the Institute of State and Law named after V.M. Koretsky, an analysis of the application of legislative norms in the context of reinstatement, if the issue concerns the civil service, was carried out.
The conclusion of the scientific and legal examination stipulates that "according to Clause 4, Part 1, Art. 2 of the Law of Ukraine "On Public Service", a public service position is a primary structural unit of a state body defined by the structure and staffing list with official duties established in accordance with the law within the scope of powers specified in Part 1 of Article 1 of this Law.
Therefore, a systematic analysis of the relationship between the first part and the second part of Article 2 of the Law of Ukraine "On Civil Service" provides grounds for asserting that the tenure of a person in a position that is not provided for in the staff list of a state body cannot be considered as holding a civil service position in the sense of the above norms of the said Law".
In practice, a situation often occurs when an employer simulates the execution of a court decision by re-instating a person in a position that does not exist, in order to avoid the obligation provided by law and delay the process of court proceedings.
I suggest you consider the legal aspects using your own example.
By the decision of the District Administrative Court of Kyiv dated February 24, 2020 in case No. 640/18993/19, I was reinstated as the head of the legal department of the State Geology and Subsoil Service of Ukraine. The court's decision was upheld by the court of appeal and cassation instance.
The actual admission to the performance of official duties was blocked by refusing to renew with reference to the reduction of the staff unit.
Subsequently, the employer resorted to personnel manipulation and by order No. 86-k dated March 17, 2020, reinstated me in a reduced position outside the state.
The Sixth Appeals Administrative Court, having analyzed this order, by its decision dated 15.10.2020 in case No. 640/18993/19 recognized the illegal inaction of the State Geodesy, referring in the motivational part to the fact that the decision of the court was not actually implemented, since the post, in respect of which the imitation of renewal took place, not included in the staff list.
The court also noted the procedure for proper execution in such a case – by introducing a reduced position or reinstatement in an equivalent position.
By a decision dated 07.12.2020, the Supreme Court of Ukraine refused to open cassation proceedings to review this resolution.
A similar position was taken by the state executor in the demand dated 07.31.2020 No. 62455703/20.1/22.
In the request dated 13.10.2020 No. 62455703/20.1/22, the state executor, referring to the conclusion of the scientific and legal examination of the Council of Scientific and Legal Examinations at the Institute of State and Law named after V.M. Koretsky dated 20.08.2020 No. 126/160-e, stated that the order of the State Geodesy No. 86-k dated 17.03.2020 on the reinstatement of me as head of the legal department of the State Geodesy, which is not provided for by the internal organizational and management documents of the employer, in particular the staff list, is not ensures the restoration of the violated rights of a person and does not meet the legally established guarantees.
At the same time, ignoring the availability of all these documents, the employer continued to send me demands, according to which I had to appear at the State Geodesy to get acquainted with the order on my reinstatement in the position that currently exists.
Having established the fact of non-execution of the court decision properly and the obvious absence of good reasons for such behavior on the part of the debtor, the state bailiff imposed two fines by resolutions dated 11.17.2020 and 12.21.2020 VP No. 62455703, and by notification of the debtor's commission of a criminal offense dated 01.06.2021 No. 62455703 /20.1/22 initiated the opening of criminal proceedings.
The decision of another state executive – L.O. Savka, who, ignoring the decision of the Sixth Administrative Court of Appeal dated 15.10.2020 in case No. 640/18993/19 and all other documents sent by the state executive service earlier, instead of ending the executive proceedings due to the fact of non-compliance with the court order the decision returned the executive document, sending requirements to appear at the State Geodesy and to provide a work book to make a record of imitation of reinstatement in the position, the existing one, according to order No. 86-k, was canceled.
The District Administrative Court of Kyiv, in its decision dated September 10, 2021, in case No. 640/22177/21, clearly stated that "the entry of such a position in the employment book without real restoration of the plaintiff's violated rights would not lead to the actual, real and proper execution of the court decision ". By the decision of the Sixth Administrative Court of Appeal dated 12.10.2021 in case No. 640/22177/21, this court decision was left unchanged.
There were no references to other orders of the State Geodesy, except order No. 86-k, in the employer's messages sent to me as a debt collector. Written responses to all these messages with reference to court decisions, where order No. 86-k is not recognized as the execution of the court decision and the requirement to execute the court decision properly, were sent in a timely manner.
In order to determine whether the court's decision was properly implemented, my representative directed several requests from the lawyer, where the following questions were clearly formulated: (1) whether the abbreviated position of the head of the legal department was entered into the staff list; (2) whether there is an order for the dismissal of a person holding an equivalent position; (3) whether there is an order to reinstate me as a debt collector in an equivalent position under the existing staffing list.
In response to these requests, demands were again received from the employer to appear at the State Geodesy and review order No. 86-k on reinstatement to a position outside the state, which is not recognized by the court as an implementation of the court decision.
From all the employer's answers, it is clear that the intention is not to comply with the court's decision on reinstatement and to simulate its execution in order to avoid responsibility.
Also, during this period, the employer changed the structure and staffing of the institution several times, but he never introduced the reduced position of the head of the legal department, to which I was allegedly "reinstated".
In the future, a narrow approach to the issue of the execution of a court decision in the sense of the Law of Ukraine "On Executive Proceedings", according to which an order and an entry in the labor book about the reinstatement is sufficient to ascertain the fact of reinstatement of a civil servant, was applied by the District Administrative Court of Kyiv in case no. 640/30835/20 (judge Vekua N.G.).
However, in the context of this situation, such a decision is unjust, since the court had already established the non-recognition of order No. 86-k as the fact of the execution of the court decision on renewal.
Thus, in the decision dated 10.12.2021, referring to the order, which is not recognized as the execution of the court's decision, the court noted: "The debt collector did not appear before the authority in which she was reinstated in her position to provide information, any reasonable explanation regarding her reinstatement, which was specified by the plaintiff, was not provided, therefore, the plaintiff took all necessary actions to implement the court decision.
At the same time, the court emphasizes that the employee was actually aware of the existence of an order for her reinstatement."
From this, the court concludes that "the plaintiff took active actions in order to fulfill the court's decision."
In this context, an illegal attempt to legalize order No. 86-k can be seen, when the court, contrary to earlier decisions in this case, actually creates a closed circle for further abuses, which makes it impossible to properly execute the court decision.
The injustice of this document, which does not take into account the 4 volumes of evidence of the case materials, is obvious.
In fact, for the third time in a row, the same circumstance is proven in court.
The fact that the court decision has not been executed does not require proof, as does the absence of good reasons for its non-execution by the employer.
It is also obvious that the official does not have to, at the employer's request, ensure an appearance at the state authority to familiarize himself with the order of reinstatement in a position that does not exist, and provide an employment book to make a fake entry, if the employer tries to simulate the execution of the court decision. This illegal entry, the illegality of which has already been established in a court of law twice, does not affect the fact that the court decision was and remains properly unexecuted without valid reasons.
The decision of the Supreme Court dated June 12, 2020 in case No. 823/1243/18 (administrative proceeding No. K/9901/53944/18) established that circumstances that are objectively insurmountable are recognized as valid reasons for non-execution of a court decision in accordance with the norms of the current legislation of Ukraine , do not depend on the will of the person and are associated with real, significant obstacles or difficulties for the timely execution of relevant actions.
Also, in this decision, the panel of judges emphasizes that "the decision on reinstatement is executed immediately, and the acceptance of another employee is not a valid reason for non-execution of the court's decision."
The decision of the Supreme Court dated 11.02.2020 in case No. 808/1043/17 (administrative proceeding No. K/9901/23575/18) annulled the decision of the appellate court, which refused to cancel the decision of the chief state executive of the enforcement department of the Internal Affairs Department of the Ministry of Justice of Ukraine Rubel I.V. on the imposition of a fine on March 22, 2017 in executive proceedings No. 51632150.
The debtor tried to justify the failure to comply with the court's decision on reinstatement with, in his opinion, valid reasons that "the plaintiff could not comply with the court's decision regarding the reinstatement of PERSON_1 in a position that is not in the staff list of the Prosecutor's Office of the Zaporizhzhia region and in the body whose activities have been suspended since 15.12. 2015".
The Supreme Court agreed with the conclusion of the appellate court that the specified circumstances cannot testify to the validity of the existing grounds for non-execution of the court decision given that, in accordance with the requirements of Article 76 of Law No. 606-XIV, decisions on the reinstatement of an illegally dismissed or transferred employee are executed immediately. The execution of the decision is considered completed from the date of issuance of the corresponding order or order by the owner of the enterprise, institution or authorized body, natural person, natural person – entrepreneur who made an illegal decision to dismiss or transfer the employee, after which the state executive issues a decision on the end of the executive proceedings.
The decision of the Supreme Court of Ukraine dated June 26, 2019 in case No. 806/562/17 (administrative proceeding No. K/9901/3500/17) rejected the applicant's arguments regarding the impossibility of executing the court decision "due to the absence of the disputed position, because, as established by the appellate court, PERSON_1 was reinstated as the first deputy head of the State Inspectorate for Control over the Use and Protection of Land in the Zhytomyr region from March 15, 2010, and the plaintiff had the opportunity to make changes to the structure and staffing list for this position, but for four years he did not take effective measures , aimed at the execution of a court decision."
From the analysis of legal norms and court practice, it is clear that the employer must first create the conditions for reinstatement: (1) enter the reduced position into the staff list (which has already been established by the courts in this case twice, it is also confirmed by the conclusion of the legal examination of the National Academy of Sciences of Ukraine) or (2) dismiss the person who unlawfully occupies an equivalent position and reinstate the collector, and only then summon the person.
Challenges that contain a reference to order No. 86-k, which is not recognized in the court procedure as the fact of execution of the court decision, are an imitation. Accordingly, the court's decision is not enforced without good reasons.
An attempt to start the case in a new circle, to force me to prove my right to reinstatement already in my current position, having read the order No. 86-k on reinstatement to a position that does not exist, was already in the District Administrative Court of Kyiv during the hearing of the case No. 640/18993/19 regarding recognition of the debtor's inactivity (judge Shramko Yu.T.).
Thus, the District Administrative Court of the city of Kyiv in its decision dated 07/22/2020 in case No. 640/18993/19, referring to order No. 86-k, reported that in case of disagreement with the decision of the subject of authority and the procedure for its adoption, I have the right to apply to the court with a statement of claim to challenge this decision in a general manner, and not within the scope of Article 383 of the Civil Code of Ukraine.
This illegal decision was annulled by the decision of the Sixth Administrative Court of Appeal dated 10.15.2020 in case No. 640/18993/19, which found the State Geodesy's inaction in the matter of non-renewal to be illegal.
Today, the decision of the District Administrative Court of Kyiv dated 10.12.2021 in case No. 640/30835/20 (judge Vekua N.G.) is being reviewed on appeal by the Sixth Administrative Court of Appeal (Alimenko V.O., Belova L.V., Kuchma A.Yu.).
The European Court of Human Rights drew attention to the fact that the judicial and executive proceedings are the first and second stages in the general proceedings (the decision in the case "Scordino v. Italy"). Thus, the execution of the decision is not separated from the judicial proceedings and the proceedings must be considered as a whole (the decision in the case "Sika v. Slovakia" ("Sika v. Slovaki") paragraphs 24-27 No. 2132/02 dated 13.06.2006, paragraph 18 of the decision "Lipisvitska v. Ukraine" No. 11944/05 dated 12.05 .2011).
In addition, in the decisions of the European Court of Human Rights in the cases "Burdov v. Russia" dated 07.05.2002, "Romashov v. Ukraine" dated 27.07.2004, "Sharenok v. Ukraine" dated 22.02.2004, it is noted that the right to judicial protection would be illusory, if the legal system of the state allowed the final binding decision to remain inactive to the detriment of one of the parties; the enforcement of a judgment rendered by any court shall be considered an integral part of the judicial process.
The state is responsible for the implementation of final decisions, if the factors that delay or prevent their full and timely implementation are within the control of the authorities (the decision in the case "Sokur v. Ukraine" No. 29439/02 dated 26.04 .2005 and in the case "Kryshchuk v. Ukraine" No. 1811/06 dated February 19, 2009).
In this legal context, the upholding of an illegal decision and the unjustified annulment of penalty orders will open up opportunities for the employer to do whatever senseless action it wants for as long as it wants and thus avoid liability for non-compliance.
Author: Kristina Brailovska , lawyer, expert in the field of subsoil use, author of a number of anti-corruption legislative initiatives in the field of ecology and geology