In the realities of wartime, employers are increasingly faced with legal issues related to mobilized employees. The situation is especially difficult when a conscript is officially recognized as missing. In such cases, a logical question arises: is the employer obliged to continue to maintain their place of work and position? What are the legal grounds for terminating employment relations? The legal nuances of terminating an employment contract under such circumstances are discussed below.
Rights of mobilized workers
In accordance with Article 119 of the Labor Code of Ukraine (hereinafter – the Labor Code), employees sent to perform basic military service, called up for military service by conscription of officers, military service by conscription during mobilization, for a special period, military service by conscription of reservists during a special period, or accepted for military service under a contract, including by concluding a new contract for military service, during the special period for a period until its expiration or until the day of actual dismissal, retain their place of work and position at the enterprise, institution, organization, farm, agricultural production cooperative, regardless of subordination and form of ownership, and with individual entrepreneurs for whom they worked at the time of conscription.
Such employees are paid cash benefits from the State Budget of Ukraine in accordance with the Law of Ukraine "On Social and Legal Protection of Military Personnel and Members of Their Families."
Guarantees and exceptions
The guarantees specified in part three of this article shall be maintained for employees who, during military service, were injured (other health injuries) and are undergoing treatment in medical institutions, as well as were captured or declared missing, for a period of up to the day following the day of their registration for military registration in district (city) territorial recruitment and social support centers, the Central Directorate or regional bodies of the Security Service of Ukraine, relevant units of intelligence agencies of Ukraine after their discharge from military service in the event of their completion of treatment in medical institutions, regardless of the period of treatment, return from captivity, their appearance after being declared missing or until the day of their declaration by a court of their death.
The guarantees specified in part three of this article do not apply to ordinary and commanding personnel of the civil defense service, and in terms of maintaining their place of work and position, also to persons who held elected positions in local government bodies and whose term of office has expired.
The guarantees provided for in parts two and three of this article shall not apply to persons who have been found guilty of committing criminal offenses against the established procedure for military service (military criminal offenses) during a special period and whose sentence has entered into legal force.
Employer's obligations
Thus, in accordance with Part 3 of Article 119 of the Labor Code, the employer must maintain the place of work and position of the mobilized person until their return (demobilization).
Termination of the employment relationship in the event of the death of the employee, their recognition by the court as missing or declared deceased (if documentary evidence of one of these events is provided) is carried out by the employer on the basis of item 82, Part 1, Article 36 of the Labor Code.
