Violation of the ban on dismissal during sick leave: is the employee always subject to reinstatement?

Dismissal of an employee during a period of temporary incapacity for work remains one of those issues where a seemingly clear legislative prohibition in practice requires a much deeper assessment. The employer may have a statutory basis for terminating the employment relationship, in particular in connection with the expiration of the contract. However, the very moment of issuing the order or determining the date of dismissal may violate the guarantees established by labor legislation. That is why in such disputes it is important to distinguish between the illegality of the dismissal and the violation of the procedure for its registration, because it depends on this whether it is a matter of reinstatement at work or only an adjustment of the date of termination of the employment relationship.

Lawyers from the Repeshko & Partners Law Firm explained how the courts apply the prohibition on dismissing an employee during sick leave, in which cases the presence of temporary incapacity for work affects only the date of dismissal, and not the very reason for terminating the employment relationship, and why for the proper protection of the employee’s rights, not only the fact of the employer’s violation of the labor guarantee, but also the chosen method of judicial protection is important.

Part three of Article 40 of the Labor Code of Ukraine establishes one of the important guarantees for the employee: dismissal at the initiative of the employer during the period of temporary incapacity for work is not allowed. The exception is the case when the employee does not appear at work for more than four months in a row due to temporary incapacity for work, not taking into account leave due to pregnancy and childbirth, unless the legislation provides for a longer period of retention of the place of work or position in case of a certain illness. For employees who have lost their ability to work due to an occupational injury or occupational disease, the law establishes an even broader guarantee: their place of work or position is retained until they are restored to working capacity or disability is established.

Despite the clarity of this norm, in practice, employers do not always apply it correctly. The reasons may be different: sometimes it is a technical error in the execution of documents, and sometimes it is an incorrect interpretation of the current legislation. The latest position of the Supreme Court of Ukraine in this category of disputes forces employers to check the dates of sick leave more carefully before issuing dismissal orders. At the same time, it demonstrates that reinstatement is not always an appropriate way to protect a violated right. Under certain circumstances, a sufficient way of protection may be to change the date of dismissal, and such a change does not necessarily entail payment of average earnings for the period of forced absenteeism.

On April 29, 2026, in case No. 380/22484/24, the panel of judges of the Cassation Administrative Court considered the dispute over the claim of a man to the Lviv Customs Service for recognition as unlawful and cancellation of the order, reinstatement at work and recovery of average earnings for the period of forced absenteeism. Substantiating his claims, the man noted that he was dismissed during the period of temporary incapacity for work, and therefore he considered such dismissal to be illegal. By the decision of the court of first instance, which the court of appeal left unchanged, the claim was refused.

In refusing to satisfy the claims, the courts proceeded from the fact that the defendant lawfully adopted the contested order, by which he terminated the plaintiff’s civil service and dismissed him from his position due to the expiration of the civil service contract. However, not agreeing with such court decisions, the man filed a cassation appeal.

According to the case materials, it was established that in 2021 the plaintiff was appointed to the position of deputy head of the customs post. Later, he was transferred to another position by concluding a contract for civil service. According to the concluded contract, its validity is terminated, in particular, upon the expiration of the term for which this contract was concluded. The term of the contract was determined from July 5, 2023 to October 4, 2023. At the same time, by an additional agreement, its validity was extended from October 5, 2023 to October 4, 2024.

By order of the defendant dated October 4, 2024, the plaintiff’s civil service was terminated, and he was dismissed from his position due to the expiration of the term for which the specified contract was concluded. At the same time, according to the extract from the medical history, the plaintiff was inpatient from September 19, 2024 to October 9, 2024.

When reviewing this case, the Supreme Court noted that the relations related to entering the civil service, its completion and termination, as well as the legal status of a civil servant are regulated by the Law of Ukraine “On Civil Service”. In accordance with Part One and Clause 2 of Part Two of Article 34 of Law No. 889-VIII, the appointment to the position of a civil servant is carried out for an indefinite period, except for cases specified in this and other laws of Ukraine.

According to the rules of Part One of Article 31-1 of Law No. 889-VIII, a civil service contract is not exclusively a technical document on appointment to a position, but a separate legal basis that determines the term of service and the conditions for its termination. Such a contract may be concluded with a person appointed to a civil service position in accordance with paragraph 3 of part two of Article 34 of this Law. At the same time, the procedure for its conclusion is approved by the Cabinet of Ministers of Ukraine upon submission by the body that forms and implements state policy in the field of civil service.

It should be noted that the law establishes that a civil service contract is concluded for a period of up to three years. If a civil servant properly fulfills its terms, the parties may extend the contract for the same or a longer period, but again not for more than three years. Such an extension is not formalized by oral agreement and not automatically, but by signing the relevant amendments to the contract.

It is the fixed-term nature of such a contract that became key in this case. Part 12 of Article 31-1 of Law No. 889-VIII provides that the validity of a civil service contract is terminated, in particular, upon the expiration of the term for which it was concluded. The law also allows for termination of the contract at the initiative of a civil servant or by agreement of the parties, at the initiative of the appointing entity or the head of the civil service in the event of non-fulfillment or improper fulfillment by the civil servant of the terms of the contract, as well as in the event of termination of civil service on the grounds specified in part one of article 83 of this Law.

Separately, paragraph 2 of part one of article 83 of Law No. 889-VIII provides that civil service is terminated upon the expiration of the term of appointment to a civil service position. This provision is related to article 85 of Law No. 889-VIII, according to paragraph two of part one of which a civil servant appointed to a position with the conclusion of a civil service contract is dismissed from his position on the last day of the contract term.

Therefore, the subject of the dispute in this case was not whether there was a general basis for termination of civil service, but whether the Lviv Customs could dismiss the man on October 4, 2024, when he was on sick leave. By the contested order of October 4, 2024, his civil service was terminated, and the plaintiff himself was dismissed from his position in accordance with paragraph two of part one of Article 85 of Law No. 889-VIII in connection with the expiration of the contract for civil service.

The Supreme Court agreed with the conclusions of the courts of previous instances in that after the expiration of the contract, in the absence of grounds for its extension, the appointing entity or the head of the civil service is obliged to issue an order to dismiss a civil servant who was appointed to a position under a contract. However, this circumstance does not relieve the employer of the obligation to comply with labor guarantees, since in the case it was established that the plaintiff was dismissed by order precisely during the period of his temporary incapacity for work.

In this regard, the cassation court turned to Part 3 of Article 40 of the Labor Code of Ukraine, which prohibits the dismissal of an employee at the initiative of the owner or a body authorized by him during the period of temporary incapacity for work, except in the case of dismissal under paragraph 5 of this article, as well as during the period of the employee’s vacation.

The position of the Constitutional Court of Ukraine, set out in the decision of September 4, 2019 No. 6-р (II)/2019, was also of great importance for this case. By this decision, the provisions of Part 3 of Article 40 of the Labor Code of Ukraine were recognized as complying with the Constitution of Ukraine. The Constitutional Court of Ukraine emphasized that there cannot be discrimination in the exercise of labor rights by employees, and violation of equality in labor rights and guarantees is unacceptable. It also noted that any restriction of labor rights must have an objective and reasonable justification and be carried out in compliance with the Constitution of Ukraine and international legal acts.

It is important that Part 3 of Article 40 of the Labor Code of Ukraine establishes a special guarantee of protection of an employee against unlawful dismissal, which the employer must take into account when applying labor legislation. One of such guarantees is the prohibition of dismissing an employee who is temporarily incapacitated or on vacation at the time of dismissal. That is why the non-extension of this guarantee to labor relations under a contract would mean a violation of the protection of employees against unlawful dismissal and would put them in an unequal position compared to other employees. That is, a fixed-term contract does not deprive an employee of basic labor guarantees, even if the term of such a contract has already expired.

The Constitutional Court of Ukraine, assessing the guarantee provided for in Part 3 of Article 40 of the Labor Code of Ukraine, proceeded from the fact that the protection of an employee against dismissal during temporary incapacity for work cannot depend on the form of labor relations. That is why the Court concluded that this norm applies to all labor relations and does not contradict the Constitution of Ukraine.

The significance of this conclusion is that the prohibition of dismissing an employee during the period of temporary incapacity for work is an independent labor guarantee. Even if the employer has legal grounds for dismissal, for example, the employee’s violation of the terms of the employment contract, the expiration of the employment contract, or another reason provided for by law, he still cannot determine the date of dismissal as the day when the employee is on sick leave. In such a situation, the violation concerns the guarantee provided for in Part Three of Article 40 of the Labor Code of Ukraine, and does not necessarily mean the absence of legal grounds for the dismissal itself.

A similar approach was already formulated by the Grand Chamber of the Supreme Court in its resolution of September 15, 2020 in case No. 205/4196/18. In this ruling, the Grand Chamber noted that in the event of a violation of the guarantee established by Part Three of Article 40 of the Labor Code of Ukraine, the negative consequences should be eliminated by changing the date of dismissal of the employee. The date of termination of employment in such a case should be determined as the first day after the end of the period of temporary incapacity for work or vacation. Given the existence of legal grounds for the dismissal of the plaintiff, but at the same time his dismissal during the period of temporary incapacity for work, the Supreme Court concluded that the violated right in this case can be protected by changing the date of dismissal. That is, the date of termination of employment should not have been the day when the plaintiff was still on sick leave, but the first day after the end of the period of incapacity for work – October 10, 2024.

At the same time, the court considered the issue of payment of average earnings for the period of forced absenteeism separately, since such a requirement is directly related to the consequences of illegal dismissal or illegal transfer. According to Part 2 of Article 235 of the Labor Code of Ukraine, when making a decision to reinstate an employee, the body considering the labor dispute simultaneously decides on the issue of payment of average earnings for the period of forced absenteeism 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 is considered for more than one year through no fault of the employee, such body makes a decision on payment of average earnings for the entire period of forced absenteeism.

It follows from the content of Part 1 of Article 235 of the Labor Code of Ukraine that payment for forced absenteeism is applied when the employee was dismissed without legal grounds or illegally transferred to another job. In other words, forced absenteeism occurs when it is the employer’s illegal actions or inaction that deprived the employee of the opportunity to perform labor duties and receive wages for it.

It should be noted that in labor law, forced absenteeism is considered as a period during which the employee, due to the fault of the employer, was deprived of the opportunity to work, that is, to perform the labor functions specified in the contract. It is with such actions of the employer that the legislator associates the payment of average earnings for the entire period of forced absenteeism, because their consequence is the inability of the employee to properly exercise his right to work.

The Supreme Court drew attention to the fact that an exhaustive list of grounds for paying an employee average earnings for the entire period of forced absenteeism is determined by Articles 235 and 236 of the Labor Code of Ukraine, and therefore these grounds cannot be interpreted broadly. Changing the date of dismissal in itself is not forced absenteeism, for which the employee is paid the average earnings calculated in accordance with the Procedure for Calculating the Average Wage, approved by the Resolution of the Cabinet of Ministers of Ukraine dated February 8, 1995 No. 100.

In the event that the court changes only the date of dismissal, the average earnings for the entire period of forced absenteeism are not paid. For the period of temporary incapacity for work, the employee may receive temporary incapacity benefits in accordance with the Law of Ukraine “On Compulsory State Social Insurance” – upon his application or upon a lawsuit to the court.

Taking into account the above, the Supreme Court adopted a new decision, which partially satisfied the man’s claim. The court changed the date of his dismissal from his position from October 4, 2024 to October 10, 2024, and rejected the rest of the claims.

Therefore, we advise employers not to consider the end of the contract or agreement as a basis for automatic dismissal without checking the circumstances that may affect the date of termination of employment. Before issuing an order, it is necessary to find out whether the employee is on sick leave or on vacation, since even if there is a legitimate reason for dismissal, an incorrectly determined date may be the subject of a legal appeal. Employees, in turn, should evaluate not only the fact of dismissal during incapacity for work, but also what method of protection would be appropriate in a specific situation: reinstatement, change of the date of dismissal or a claim for payments for the period of temporary incapacity for work.