Illegal dismissal during war: lawyers explain the consequences using the example of the decision of the Supreme Court of Ukraine

In times of war, situations often occur when an employer terminates an employment contract with an employee in a manner that directly contradicts current legislation. Moreover, the wording in the order may look formally quite correct, but behind it hides a gross violation of the procedure, ignoring the terms of notification, refusal of payments or forced writing of a statement “by agreement of the parties”. In such cases, the employee faces both the loss of a source of income and the complete absence of explanations, support or a legal protection mechanism – at first glance.

Using the example of the decision of the Supreme Court of Ukraine, the lawyers of the “Repeshko and Partners” Bar Association explained in which cases the termination of employment during wartime is considered illegal, how to prove it, and what exactly should be compensated to a person who became a victim of the employer’s illegal actions.

According to the estimates of some experts, a third of the population, which is about 10 million people, currently works in Ukraine. At the same time, no one ever expected military actions on the territory of the country on such a scale. Neither the citizens nor the current legislation were ready for this. All the more so in our labor legislation, which has not been fundamentally changed since Soviet times – the current Labor Code was adopted back in 1971. That is why everyone solved labor issues as best they could, taking into account the current reality, while some employers decided incorrectly.

On May 5, 2025, the Supreme Court of Ukraine in case No. 758/4178/22 made a final decision, which is exemplary not only in terms of legislation, but also in moral terms – a single mother, a former employee of the joint-stock company “National Joint-Stock Company “Naftogaz of Ukraine” was not afraid to go to court in connection with illegal dismissal against such a corporation and won all three court instances. Her lawsuit was motivated by the fact that she works as a director of information technology at JSC Naftogaz of Ukraine and has the status of a single mother (she raises her daughter on her own) and benefits from the guarantees provided for in Article 184 of the Labor Code of Ukraine.

After the introduction of the legal regime of martial law in Ukraine, including being together with her daughter in the area of direct hostilities, the plaintiff continued to fully perform her official duties, organized, ensured and supported the implementation and implementation of remote work for all employees of Naftogaz of Ukraine, which is one of the largest companies in Ukraine. Under the leadership of the plaintiff, permanent and effective support of all information technology solutions and maintenance of information security necessary for the stable functioning of NJSC “Naftogaz of Ukraine” was implemented and carried out.

Despite this, JSC “NAC Naftogaz of Ukraine” made an unfounded, illegal and violation of the plaintiff’s labor rights decision to suspend the employment contract and stop the calculation and payment of wages, guarantee and compensation payments. The plaintiff considered the order of JSC “Naftogaz of Ukraine” JSC No. 75 of April 14, 2022 on the suspension of the employment contract concluded with her as illegal and as having been adopted in violation of Article 13 of the Law of Ukraine “On the Organization of Labor Relations in Martial Law”, claiming that Naftogaz of Ukraine had the opportunity to provide her with work, and she had the opportunity to perform it.

In addition, the plaintiff also asked to collect from the defendant the average earnings for the period of forced absenteeism in her favor, and therefore asked the court to recognize as illegal and cancel the order of JSC “Naftogaz of Ukraine” JSC No. 75 dated April 14, 2022 “On the suspension of the employment contract” and to collect the average earnings for the period of forced absenteeism. By the decision of the Podilskyi District Court of the city of Kyiv dated October 27, 2023, the citizen’s lawsuit was satisfied. By the decision of the Kyiv Court of Appeals dated April 1, 2024, the appeal of JSC Naftogaz of Ukraine was dismissed;  the decision of the court of first instance was left unchanged. Disagreeing with the decisions of the courts of two instances, the defendant appealed to the Supreme Court of Ukraine.

Upholding the decisions of the courts of previous instances, the Supreme Court established the following. On March 15, 2022, the Law of Ukraine “On the Organization of Labor Relations in Martial Law” was adopted, which entered into force on March 24, 2022. This Law defines the specifics of labor relations of employees of all enterprises, institutions, and organizations in Ukraine, regardless of the form of ownership, type of activity, and industry affiliation, as well as persons who work under an employment contract with natural persons, during the period of martial law introduced in accordance with the Law of Ukraine “On the Legal Regime of Martial Law.”

According to Clause 2 of the Final Provisions of the Labor Code of Ukraine, during the period of 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.

During the period of martial law, restrictions on the constitutional rights and freedoms of a person and a citizen are introduced in accordance with Articles 43 and 44 of the Constitution of Ukraine. During the period of martial law, the norms of labor legislation do not apply to the part of relations regulated by this Law (parts two and three of Article 1 of the Law of Ukraine “On the Organization of Labor Relations in the Conditions of Martial Law” (as amended at the time of issuing the order of JSC “Naftogaz of Ukraine” No. 75 dated April 14, 2022 “On the suspension of the employment contract”).

Note that the suspension of the employment contract is a temporary termination by the employer of providing the employee with a job and a temporary termination of the employee’s performance of the work under the concluded employment contract. The employment contract may be suspended in connection with military aggression against Ukraine, which excludes the possibility of providing and performing work. The suspension of the employment contract does not entail the termination of employment relations (part one of Article 13 of the Law of Ukraine “On the Organization of Labor Relations in the Conditions of Martial Law” (as amended at the time of the adoption of the disputed order).

According to the third part of Article 13 of the Law of Ukraine “On the Organization of Labor Relations in the Conditions of Martial Law” (as amended at the time of the issuance of the order of JSC “NAC Naftogaz of Ukraine” No. 75 of April 14, 2022 “On the suspension of the employment contract”), the compensation of wages, guarantee and compensation payments to employees during the suspension of the labor contract is fully entrusted to the state, which conducts military aggression against Ukraine.

Forced absenteeism is the time during which the employee was deprived of the opportunity to work due to the fault of the owner or the body authorized by him. After considering the above, the Joint Chamber noted the following:

• the fact of military aggression against Ukraine in itself is not an unconditional reason for the employer to suspend the employment contract. The wording of the provisions of Article 13 of the Law of Ukraine “On the Organization of Labor Relations in the Conditions of Martial Law” (in the wording valid at the time of issuing the order of JSC “NAC Naftogaz of Ukraine” No. 75 of April 14, 2022 “On the suspension of the employment contract”), that the employment contract may be suspended in connection with military aggression against Ukraine, which excludes the possibility of providing and performing work, and the use of the conjunction “and” allows us to conclude that the occurrence of these two circumstances at the same time allows us to use the suspension of the employment contract with the employee as a temporary exceptional event;
• the obligation of the simultaneous occurrence of the circumstances of the impossibility of the employer to provide work and the impossibility of the employee to perform the work for the application of the provisions of Article 13 of the Law of Ukraine “On the Organization of Labor Relations in Martial Law” (as amended at the time of issuing the order of JSC “Naftogaz of Ukraine” No. 75 dated April 14, 2022 “On the suspension of the employment contract”) is decisive, since the possibility of continuing to fulfill the terms of the employment contract is at least one of of the parties and related legal consequences for the other party – do not create legal consequences in connection with the suspension of the employment contract, and ultimately eliminate the need/possibility of applying this rule of law;
• there is no rule of law in the Labor Code of Ukraine that in this situation would regulate the issue of payment of average earnings during the illegal suspension of the employment contract, since this is neither idle time nor dismissal of the employee. At the same time, taking into account the provisions of Article 43 of the Constitution of Ukraine, the most similar (analogous) to this situation is the application of the first and second parts of Article 235 of the Criminal Code of Ukraine;
• the restoration of the violated employee’s right to work should be carried out not only by recognizing the order on the suspension of the employment contract with the employee as illegal and renewing the employment contract, but also by the employer paying the employee the average salary for the period of forced absenteeism, applying the provisions of Article 235 of the Labor Code of Ukraine;
• the compensation of wages, guarantee and compensation payments to employees during the suspension of the employment contract is fully entrusted to the state carrying out armed aggression against Ukraine, in the event that the suspension of the employment contract is justified. If the illegal actions of the employer (illegal suspension of the employment contract) deprived the employee of the opportunity to work, then the employer is obliged to compensate the employee for the average salary for the time of his stay in forced absenteeism.

In this case, it is important that the fact of military aggression against Ukraine in itself is not an unconditional reason for the employer to suspend the employment contract. The wording of the provisions of Article 13 of the Law of Ukraine “On the Organization of Labor Relations in the Conditions of Martial Law” (in the wording valid at the time of issuing the order of JSC “NAC Naftogaz of Ukraine” No. 75 of April 14, 2022 “On the suspension of the employment contract”), that the employment contract may be suspended in connection with military aggression against Ukraine, which excludes the possibility of providing and performing work, and the use of the conjunction “and” allows us to conclude that the occurrence of these two circumstances at the same time allows us to use the suspension of the employment contract with the employee as a temporary exceptional event.

The obligation of the simultaneous occurrence of the circumstances of the impossibility of the employer to provide work and the impossibility of the employee to perform the work for the application of the provisions of Article 13 of the Law of Ukraine “On the Organization of Labor Relations in Martial Law” (as amended at the time of issuing the order of JSC “Naftogaz of Ukraine” No. 75 dated April 14, 2022 “On the suspension of the employment contract”) is decisive, since the possibility of continuing to fulfill the terms of the employment contract is at least one from the parties and the legal consequences associated with such a possibility for the other party – do not generate legal consequences in connection with the suspension of the employment contract, and ultimately eliminate the need/possibility of applying this rule of law.

It is important that there is no rule of law in the Labor Code of Ukraine that in this situation would regulate the issue of the payment of the average salary during the illegal suspension of the employment contract, since this is neither idle time nor dismissal of the employee. At the same time, taking into account the provisions of Article 43 of the Constitution of Ukraine, the most similar (analogous) to this situation is the application of the first and second parts of Article 235 of the Criminal Code of Ukraine

The restoration of the employee’s violated right to work should be carried out not only by recognizing the order on the suspension of the employment contract with the employee as illegal and renewing the employment contract, but also by the employer paying the employee the average salary for the period of forced absenteeism, applying the provisions of Article 235 of the Labor Code of Ukraine.

In this situation, you should know that the compensation of wages, guarantee and compensation payments to employees during the suspension of the employment contract is fully entrusted to the state, which is carrying out armed aggression against Ukraine, in the case of the validity of the suspension of the employment contract. If the illegal actions of the employer (illegal suspension of the employment contract) deprived the employee of the opportunity to work, then the employer is obliged to compensate the employee for the average salary during his stay in forced absenteeism.

Therefore, the suspension of the employment contract in the conditions of martial law is possible only if two circumstances occur simultaneously: the impossibility of the employer to provide work and the impossibility of the employee to perform work due to military aggression. However, the main moral of this situation is that you should never be afraid to stand up for your rights, even if the opponent is a large state corporation!