Cancellation of Dismissal Order: Procedure
Article 43 of the Constitution of Ukraine establishes that everyone has the right to work, which includes the opportunity to earn a living through work that they freely choose or agree to. Citizens are guaranteed protection against unlawful dismissal. One of the guarantees ensuring citizens’ right to work is the legal protection against unlawful dismissal, as provided in Article 5-1 of the Labor Code of Ukraine.
However, cases of unlawful dismissal do occur. How can an employee protect their rights? Where should they turn? What is the procedure? Let us consider the general aspects in this article.
Of course, the method of protection depends on the specific circumstances of the case and the content of the dismissal order being challenged. In any case, to challenge a dismissal order, the employee must properly document the employer’s unlawful actions. Specifically, if the employee disagrees with certain documents, they should sign them with reservations or additional explanations and clearly record the dismissal procedure, including reviewing the dismissal order, documents justifying the dismissal, and settlement details.
In cases of unlawful dismissal, an employee can choose either a pre-trial or judicial method to protect their rights.
Pre-Trial Appeal Process
The pre-trial method involves the employee directly addressing the employer with a justification of their position regarding the unlawful dismissal or contacting various authorities and organizations to resolve the dispute.
Thus, if an employee believes their dismissal was unlawful, the first step they can take is to request their former employer to reinstate them voluntarily. It is preferable to submit this request in writing through a lawyer, including warnings to the employer about the consequences of unlawful dismissal. A well-structured written appeal with professional legal reasoning may deter the employer from risking their reputation, potential sanctions for violations, and legal expenses, leading them to reinstate the employee.
At the same time, one should not rely too heavily on this step, and it is advisable to apply other methods of influence, such as filing a complaint with law enforcement authorities (police, prosecutor’s office) or the State Labor Service.
In case of unlawful dismissal, an employee may contact the National Police to initiate criminal proceedings under Article 172 of the Criminal Code of Ukraine for gross violations of labor legislation.
Judicial Appeal Process
One of the most important constitutional guarantees for ensuring and protecting individual rights and freedoms is the right to judicial protection. The Constitution of Ukraine guarantees everyone judicial protection of their rights.
If an employee believes they have been unlawfully dismissed, they have the right to file a lawsuit to defend their interests.
It is essential to understand where to file the lawsuit.
As a general rule, cases of unlawful dismissal are considered under civil procedure rules. They are reviewed by local courts of general jurisdiction (district, district in the city, or city courts). The lawsuit is filed either at the employer’s location or at the employee’s place of residence.
If the employee was a public servant (held an administrative position in executive authorities or local government, worked in the civil service, etc.), the case is considered under administrative court procedures, following the Code of Administrative Procedure of Ukraine.
As a general rule, the right to file a lawsuit for unlawful dismissal is limited to one month from the date of receiving a copy of the dismissal order (Part 1, Article 233 of the Labor Code).
If this deadline is missed, the court may reinstate it if there are valid reasons, such as martial law (Article 234 of the Labor Code).
Key Aspects of Unlawful Dismissal
Dismissal at the employer’s initiative is allowed only on the following grounds:
- Under Article 36 of the Labor Code (agreement of the parties, expiration of the contract, conscription or enlistment of the employee or employer – natural person – into military service, assignment to alternative (non-military) service, etc.).
- Under Article 40 of the Labor Code (changes in production and labor organization, including liquidation, reorganization, bankruptcy, or restructuring of the enterprise, institution, or organization; reduction of staff or personnel; incompetence of the employee due to insufficient qualifications or health conditions that prevent them from continuing this work; refusal to obtain or cancellation of access to state secrets if such access is required for their duties; systematic failure to perform job duties without valid reasons despite previous disciplinary actions; absenteeism, etc.).
- Under Article 41 of the Labor Code (a single gross violation of job duties by the head of an enterprise, institution, or organization of any form of ownership (branch, representative office, department, or other separate unit), their deputies, or the chief accountant; wrongful actions of an employee directly handling cash, goods, or cultural values, which justify loss of trust from the employer; immoral conduct by an employee performing educational functions, incompatible with continued employment, etc.).
In cases of mass layoffs, according to Article 48 of the Law of Ukraine “On Employment,” the employer must notify the State Employment Service at least two months before the planned dismissal date (Article 49-2 of the Labor Code).
During peacetime, an employer is prohibited from dismissing an employee during their temporary incapacity or leave (including childcare leave).
Dismissals must comply with settlement deadlines stipulated in Article 116 of the Labor Code.
Restrictions on Labor Rights During Martial Law
It is important to consider that martial law imposes certain restrictions on labor rights and grants employers new dismissal powers, including:
- Employers can dismiss employees during sick leave or vacation, except for maternity or childcare leave.
- In cases provided for in Article 43 of the Labor Code, employers can dismiss employees without trade union approval, except for trade union officials.
- Employers are not required to notify employees in advance about significant changes in working conditions or obtain their consent to transfer to another job not stipulated in the employment contract.
Employer Liability for Unlawful Dismissal
Current legislation provides for the following criminal liability for employers in cases of unlawful dismissal.
If an employer unlawfully dismisses an employee during martial law, they may face a fine ranging from UAH 34,000 to UAH 51,000, disqualification from holding certain positions or engaging in specific activities for up to three years, or correctional labor for up to two years.
If labor law violations are repeated or committed against a minor, pregnant woman, single father, mother, or guardian raising a child under 14 years old or a child with disabilities, the penalties increase to a fine of UAH 51,000 to UAH 85,000, disqualification from holding certain positions for up to five years, correctional labor for up to two years, or imprisonment for up to six months.
For legal consultation on reinstatement, either through pre-trial dispute resolution or litigation, contact the legal firm “First Legal” by filling out an application form on our website or calling us at: +38 (044) 35-35-164; +38 (067) 306-89-89; +38 (063) 45-85-448; +38 (099) 367-89-89