On what grounds is severance pay provided for when an employee is dismissed at the initiative of the employer during wartime?
The law does not specify any specifics regarding the payment of severance pay to employees during the period of martial law.
Therefore, it is, as always, paid in the cases specified in Art. 44 of the Code, some of which are relevant today:
- if the employment contract (TD) is terminated due to the fact that the employee refuses to transfer to work in another area together with the employer or the employee refuses to continue working due to a change in the essential working conditions (Clause 6 of Article 36 of the Code) – he receives severance pay not less than the average salaries for the month;
- if the TD is terminated at the initiative of the employer due to changes in the production and labor company (for example, it is liquidated, reorganized, bankrupt/repurposed, there is a reduction in employees (clause 1 of article 40 of the Code) – not less than the average monthly salary;
- if the TD is terminated at the initiative of the employer due to the fact that the employee does not correspond to the position/work held due to insufficient qualifications or health, as well as due to the refusal to grant the employee access to state secrets/its cancellation (if the position requires it) (clause 2 of Article 40 of the Code) – not less than the average monthly salary;
- if the TD is terminated at the initiative of the employer due to the reinstatement of the employee who previously performed it (clause 6 of article 40 of the Code) – not less than the average salary for the month;
- if TD is terminated due to conscription/entry into military service, referral to alternative (non-military) service (clause 3 of Article 36 of the Code) – 2 minimum salaries;
- if the employment contract is terminated at the initiative of the employee due to the fact that the employer violated the labor legislation, the collective/employment agreement (Articles 38 and 39 of the Code) – in the amount provided for in the collective agreement, but not less than 3 months’ average salary;
- if the employment contract is terminated at the initiative of the employer with officials due to the termination of their powers (clause 5, part 1, article 41 of the Code) – not less than 6 months’ average salary.
Collective agreements may also provide for other cases of payment of severance pay or its larger amounts than those specified in Art. 44 of the Code.
What responsibility will the employer bear in case of illegal dismissal of employees during the war?
The legislation of Ukraine provides for several types of liability of the employer and its officials for illegal dismissal of employees.
Criminal liability extends to the employer’s officials for the illegal dismissal of an employee for personal reasons or if he reported that he exposed a corruption offense committed by another person. According to Art. 172 of the Criminal Code, for this a fine of UAH 34,000 to UAH 51,000 is provided, or the violator may be deprived of the right to work in certain positions/engage in a certain type of activity for a period of up to 3 years, and corrective works for a period of up to 2 years are also possible.
For the fact that the employer has violated the procedure for dismissing an employee, he may be held administratively liable (Part 1, Article 41 of the Labor Code). For example, for the fact that he: did not fulfill the obligation to provide the employee with another job, did not conduct a settlement with the employee within the terms specified in Art. 116 of the Code, terminated the TD without the prior consent of the elected body of the primary trade union organization of which the employee is a member, etc.
Along with this, it is also possible to bring the employer to financial responsibility, provided for in Art. 265 of the Code, by imposing a fine in the amount of the minimum wage.
The peculiarity of this type of responsibility is that it is imposed on the enterprise itself, while the above-mentioned types of responsibility are imposed on its officials.
To do this, it is necessary to file an appropriate complaint with the State Labor Office, which, based on the results of the inspection, can issue a resolution imposing a fine for violating the requirements of labor legislation. However, currently, during martial law, State Labor authorities do not conduct inspections and, accordingly, do not fine employers. At the same time, the situation may change after the adoption of the Law, which, among other things, provides for the implementation of unscheduled inspections by the State Labor Department on the issues of identifying unregistered labor relations and terminating TDs.
And, of course, in order to protect his violated rights, an illegally dismissed employee can apply to the court for his reinstatement. At the same time, in accordance with the provisions of Art. 235 of the Code, the court, at the same time when making such a decision, makes a decision to pay him the average salary for the period of forced absenteeism, which was caused by illegal dismissal, which may significantly exceed the amount of fines that can be applied to employers and their officials within the scope of criminal, administrative and financial responsibility