In the period of war, the legal regulation of labor relations acquires special importance, because many workers are faced with new challenges – mobilization, transfer to remote work, suspension of the activities of enterprises or reduction of jobs. At this time, it is important to understand how to protect your employment rights and obligations to your employer, especially when it comes to involuntary layoffs or dismissals due to military action. In such conditions, the qualified comments of lawyers become necessary in order to understand the complex issues arising in labor relations during the war.
Lawyers of the “Repeshko and Partners” Bar Association continue to comment on the peculiarities of labor relations in wartime, which were discussed in our previous material.
How to legally terminate an employment contract in the event of a long-term absence of an employee from the workplace for unknown reasons
In such a case, termination of the contract in the absence of information about the reasons for the employee’s absence will take place in accordance with Part 1 of Art. 36 of the Labor Code of Ukraine (Labor Code) (absence of an employee from work and information about the reasons for such absence for more than four months in a row). At the same time, an important point is the date from which the counting of the same four months will begin – it must be confirmed by a document: a report note, an explanatory note, an act of absence from the workplace, etc. It is important to take measures to find out the real reasons for the employee’s absence.
If it turns out that the absence of an employee at the workplace is connected with his death, recognition by the court of his missing or declaration of death, then the basis for termination of the employment contract is Clause 8-2, Part 1, Art. 36 of the Labor Code of Ukraine.
Dismissal of an internally displaced person
This question is the most painful considering modern realities. There are cases when there is an understanding between the employee and the employer in this difficult situation. The first step in this matter can be a compromise, because the law allows it.
During the period of martial law, the employer, at the request of an employee who has left the territory of Ukraine or has acquired the status of an internally displaced person, obligatorily grants him leave without pay for the duration specified in the application, but no more than 90 calendar days, without enrollment time spent on vacation before the length of service, which gives the right to the annual basic vacation provided for point 4 part one of Article 9 of the Law of Ukraine “On Vacations”.
Therefore, the immediate dismissal of the employee is not mandatory, but in order for the employee to use this right, it is necessary to notify the employer with a written application with copies of the relevant documents (certificates of IDPs, copies of foreign passports with a note about crossing the border, a certificate from the Job Center on registration, etc. ). Within the country, it is better to send such documents by Ukrposhta by registered letter with a description and return notification of delivery. For those who are abroad, a photo of the application and documents sent by e-mail or messengers (Telegram, Viber) may be the way out. In the case of sending documents via messengers, we advise you to immediately take screenshots, which would show the exact number and what was sent, as well as the response to the sent documents.
In the event that the described opportunity has already been exhausted, or the employee wishes to resign, the internally displaced person who did not have the opportunity to terminate the employment contract in accordance with Clause 1 of Art. 36, Art. Art. 38, 39 of the Labor Code in connection with the impossibility of continuing work under such an employment contract at the previous place of residence in order to obtain the status of unemployed and receive unemployment benefits and social services under the mandatory state social insurance in case of unemployment, has the right to terminate such an employment contract unilaterally, by submitting a relevant application in the name of the employer to the employment center at the place of residence of the internally displaced person. The date of termination of the employment contract is the day following the day of submission of such application. The employment center notifies the employer, the territorial body of the Pension Fund of Ukraine and the territorial body of the State Tax Service.
However, upon mutual agreement, during the period of martial law, the employer may, at the request of the employee, grant him leave without salary without the limitation of the period established by part one Article 26 of the Law of Ukraine “On Vacations” (30 calendar days), without counting the time spent on such a vacation to the length of service, which gives the right to the annual basic vacation provided for point 4 part one of Article 9 of the Law of Ukraine “On Vacations”.
Payment of wages during martial law
The Law of Ukraine “On the Organization of Labor Relations in Martial Law” stipulates that the employer must take all possible measures to ensure the realization of the right of employees to timely receipt of wages. The employer is released from responsibility for the violation of the obligation regarding the terms of payment of labor, if it proves that this violation occurred as a result of the conduct of hostilities or the action of other circumstances of force majeure.
Exemption of the employer from responsibility for late payment of labor does not exempt him from the obligation to pay wages.
In case of impossibility of timely payment of wages as a result of hostilities, the term of payment of wages may be postponed until the time of resumption of the enterprise’s activities.
Voluntary dismissal and two weeks’ work
As a general rule, the norms of the law have not undergone changes in this part. However, the effect of martial law is still taken into account, and therefore the employee has the right to terminate the employment contract on his own initiative within the period specified in his application, without serving the two-week period, if hostilities are taking place in the locality where the enterprise, institution, organization is located, and there is a threat to his life and health. Exceptions are the cases of forced involvement of an employee in socially useful works in conditions of martial law, involvement in the performance of work at critical infrastructure facilities.
The specified rule on dismissal without working for two weeks also applies to other employees in the event that the application for voluntary dismissal is due to the impossibility of continuing work due to the cases listed in part 1 of Article 38 of the Labor Code (moving to a new place of residence; transfer of a husband or wife to work in another area; inability to live in a given area; care for a child under the age of fourteen; care for a sick family member according to a medical opinion Group I; retirement; hiring by competition, as well as for other valid reasons).
Reduction of wages without the employee’s consent
Salary is an essential condition of work. During wartime, the employer can change the essential working conditions without warning the employees for 2 months, and this also applies to wages. A reduction, for example, may occur in connection with a reduction in working hours or a change in the work schedule. The order must necessarily be justified by specific changes in the organization of production and work. In this case, the employer warns the employee no later than admission to work under new conditions.
In the event that the salary reduction occurs, for example, by reducing the salaries themselves, tariff rates, etc., then in accordance with Article 103 of the Labor Code, the employer is obliged to notify the employee about new or a change in the current terms of payment towards the deterioration no later than 2 months before their introduction or change.
It is important to remember that if an employee does not agree to a change in essential working conditions, he can be dismissed according to paragraph 6 of Article 36 of the Labor Code with the payment of severance pay in the amount of at least one average salary.
In turn, the Labor Code of Ukraine was supplemented by Article 21-1. According to it, a new form of employment contract was introduced – an employment contract with unfixed working hours. This is a special type of employment contract, the terms of which do not establish a specific time of work performance, the employee’s obligation to perform which arises only in the event that the employer provides the work provided for in this employment contract without guaranteeing that such work will be provided permanently, but with compliance with the terms of payment, provided for in this article.
The employer independently determines the necessity and time of the employee’s involvement in work, the scope of work and, within the period stipulated by the employment contract, agrees with the employee on the mode of work and the duration of the working hours necessary to perform the relevant work. At the same time, the requirements of the legislation regarding the duration of working hours and rest time must be observed.
The number of employment contracts with unfixed working hours at one employer may not exceed 10 percent of the total number of employment contracts to which this employer is a party.
An employer (employer – a natural person) who uses the labor of less than 10 employees may enter into no more than one employment contract with unfixed working hours.
Wages are paid to an employee who performs work on the basis of an employment contract with non-fixed working hours, for the time actually worked.
The minimum working time of an employee who performs work on the basis of an employment contract with non-fixed working hours during a calendar month is 32 hours. If an employee worked less than 32 hours during a calendar month, he must be paid a salary for at least 32 hours of working time in accordance with the terms of payment specified in the employment contract.
Holidays during martial law
During the period of martial law, the employer may deny the employee any type of leave if the employee works at a critical infrastructure facility, except for:
- leave due to pregnancy and childbirth;
- parental leave until the child reaches the age of three.
Restrictions affected the term of annual basic leave: no more than 24 calendar days can be granted in wartime, the rest – only after the end of martial law.
In other cases, the issue of granting annual vacations is decided by the general procedure, as before the war, and therefore the employee has the right to go on vacation according to the schedule of vacations, and some categories of employees – at a convenient time for them according to their wishes (Article 10 of the Law “On Vacations “).
Protection of violated rights in labor relations
There can be many violations of labor rights – from illegal dismissal to non-payment of wages. Depending on which rights were violated by the employer, it is necessary to choose the most effective way to protect them.
Let’s start with the fact that in the Criminal Code of Ukraine there is article 172 “Gross violation of labor legislation”, which provides for the following:
- Illegal dismissal of an employee from work for personal reasons or in connection with his notification as a whistleblower about the commission of a corruption or corruption-related offense or other violations by another person Law of Ukraine“On Prevention of Corruption”, as well as other gross violations of labor legislation – are punishable by a fine of two thousand to three thousand non-taxable minimum incomes of citizens or deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years, or corrective works for a period of up to two years, or probation supervision for the same term.
- The same actions, if they are committed repeatedly, or against a minor, a pregnant woman, a single father, a mother or a person who replaces them and brings up a child under the age of 14 or a child with a disability, are punishable by a fine of three thousand to five thousand non-taxable minimum incomes of citizens or deprivation of the right to hold certain positions or engage in certain activities for a period of up to five years, or correctional works for a period of up to two years, or probation supervision for a period of up to three years”.
A statement on this fact should be submitted to the police department on the territory of which the offending enterprise is located.
Also, the territorial body of the State Labor Service at the location of the enterprise has a significant influence on the regulation of labor relations. Although currently unscheduled inspections are not carried out, State Labor Service may contact the employer and request information and explanations regarding the complaint. However, no one has canceled scheduled inspections, and therefore, it is possible that the enterprise is in the plan or will be included in it if there are mass complaints. In any case, communication with the regulatory body is always painful for the employer.
Going to court is the most effective means of restoring the violated right when it comes to illegal dismissal or delay in the payment of wages. According to Part 1 of Article 233 KZpP of Ukraine it is stipulated that the employee can apply for the resolution of the labor dispute directly to the court within three months from the day when he learned or should have learned about the violation of his right, and in cases of dismissal – within a month from the date of delivery of a copy of the dismissal order or from the date of issue of the employment book. However, if the reason for missing such a period is valid, it can be renewed upon the appropriate application of the employee.
As for the violation of the labor legislation, the employee has the right to apply to the court with a claim for the collection of wages due to him without any time limit.
