Dismissal is often accompanied by doubts about the legality of the employer's actions. At the same time, Ukrainian labor legislation clearly defines both the grounds for termination of employment and the procedure for dismissal. If at least one of these elements is violated, the employee has the right to appeal the dismissal and demand reinstatement. Read more below.
When is a dismissal considered unlawful?
According to the norms of the Labor Code of Ukraine, dismissal is illegal if it is carried out without proper legal grounds or in violation of the established procedure. The legality of dismissal is assessed not only by the reason for the termination of employment relations, but also by the employer's compliance with all requirements stipulated by law.
One of the most common grounds for declaring a dismissal unlawful is the lack of a legitimate reason. For example, situations where an employee is dismissed "at their own request" without their written application or under pressure from the employer are not uncommon.
A separate ground for appeal is non-compliance with the dismissal procedure. This includes, in particular, violation of the employee's notice period, ignoring the obligation to obtain the consent of the trade union body in cases where such consent is mandatory, or improper execution of personnel documents.
The legislation pays special attention to the protection of certain categories of employees. Violation of labor guarantees for pregnant women, single mothers, underage workers, and other persons who have a higher level of legal protection may also be grounds for declaring the dismissal unlawful.
An equally important aspect is the inadmissibility of discriminatory or repressive dismissal. If the termination of employment relations was the employer's reaction to an employee's complaint, notification of a violation or exercise of labor rights, such actions may have signs of a violation of the law.
Features of release during martial law
Legal regulation of labor relations under martial law has certain features that expand the employer's capabilities, but do not cancel the basic guarantees of employees.
Current legislation allows for the dismissal of an employee while on sick leave or vacation. However, this provision does not apply to leave due to pregnancy and childbirth, as well as leave to care for a child until the child reaches the age of three.
During martial law, approaches to trade union participation in the dismissal procedure also changed. In most cases, an employer can dismiss without the consent of the trade union body, except in cases involving members of elected trade union bodies.
Additional rules apply to certain categories of employees of critical enterprises. In particular, the law provides for the possibility of dismissing an employee liable for military service who has not brought his military registration documents into compliance with the requirements of the law within the specified period.
At the same time, the law retains certain restrictions for employers. For example, it is not allowed to dismiss an employee for absenteeism if the workplace is located in an active combat zone and the absence is directly related to such circumstances.
Pre-trial dispute resolution: is it possible to resume without a trial?
In case of doubts about the legality of the dismissal, the employee is not obliged to immediately go to court. The law allows for the possibility of pre-trial settlement of a labor dispute.
First of all, the employee can directly contact the employer with a request for voluntary reinstatement and elimination of violations. In a number of cases, this allows resolving the conflict without additional expenditure of time and resources.
An additional protection mechanism is to contact the territorial bodies of the State Labor Service of Ukraine. Within its powers, this body can inspect the employer and, if violations are found, issue an order to eliminate them.
If the company has a trade union, it can represent the interests of the employee during the settlement of the labor conflict. An alternative way to resolve the dispute is mediation, as a result of which the parties can record the agreements reached in writing.
Judicial reinstatement: terms, guarantees and consequences
If the pre-trial settlement is unsuccessful or the employee chooses judicial protection immediately, they have the right to file a lawsuit for reinstatement and recovery of average earnings for the period of forced absenteeism.
It is important to adhere to procedural deadlines. The law establishes that an appeal to the court in cases of illegal dismissal must take place within one month from the date of delivery to the employee of a copy of the order or directive on dismissal.
One of the procedural guarantees for employees is the exemption of plaintiffs in such cases from paying court fees. This is aimed at ensuring real access to justice in labor disputes.
If the claim is upheld, the court may decide to reinstate the employee and pay average earnings for the entire period of forced absenteeism or compensation for the difference in earnings if the employee performed lower-paid work. It is important that the court's decision to reinstate the employee is subject to immediate enforcement.
Ukrainian legislation provides for a comprehensive mechanism for protecting an employee from unlawful dismissal. However, the effectiveness of such protection largely depends on the employee's timely response, proper assessment of the legal grounds for dismissal, and the correct choice of method for protecting the violated right.
