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ADER HABER successfully protected the interests of the leader of the national confectionery market before Supreme Court in a labor dispute

10/ 01/ 2019
  ADER HABER successfully protected the interests of the leader of the national confectionery market, which is among the three largest confectionery companies in Ukraine by the volume of production and among the top-100 world companies, in a labor dispute concerning the reinstatement of former Chief Accountant. Chief Accountant was dismissed for gross misconduct on the basis of Clause 3 of Article 40 of the Labour Code of Ukraine. Gross misconduct consisted in violation of the Chief Accountant`s functional duties, entrusted to her by the labor contract and detailed by the job description, regarding the lawful payment of wages to employees. Illegal behavior of the Chief Accountant also consisted in non-execution of the order of the direct line manager, the General Director, regarding the transfer of the 1C: Accounting software database into the cloud IT resource, which is a violation of labor discipline. A former employee appealed to court against disciplinary dismissal, demanded the recognition as illegal and cancellation of employer’s Resolutions on bringing to disciplinary responsibility and dismissal, reinstatement at her position. As a result of ADER HABER employment team work, the dispute was successfully resolved in the court of first instance and the appellate court, and the cassation appeal was dismissed. Reasoning her claims, the Plaintiff noted, among other things, that the Reprimand Resolution for violating the payment of wages to employees was illegal, since the General Director was responsible for payment of wages, whose guilt had allegedly been proved by the State Labor Service protocol on administrative offense under Article 41 CUoAO of Ukraine (payment of wages not in full volume), instead, according to the results of the inspection conducted by the State Labor Service no protocol has been drawn up in relation to the Plaintiff, as a Chief Accountant. It is worth noting that the Plaintiff herself initiated the inspection of the State Labor Service regarding alleged violation of the labor legislation by the General Director. At the same time, the courts supported ADER HABER position that bringing the General Director to administrative liability for violation of labor law requirements cannot be a circumstance that deprives the employer of the possibility of bringing Chief Accountant to disciplinary liability for the same violations of labor legislation, since it is the Chief Accountant responsibility, in accordance with the job description, to ensure the legality, timeliness and correctness of the payment of wages. Another argument of the Plaintiff was that the employer for the violation of labor discipline had simultaneously applied two penalties: declared a reprimand and dismissed from position, which means she was actually prosecuted for the same offence in violation of Article 147 of the Labour Code of Ukraine and Article 61 of the Constitution of Ukraine. By countering these arguments, the ADER HABER attorneys proved consistency of labor discipline violations by the Chief Accountant that were found in amount of three, and also that the chosen form of disciplinary punishment in the form of dismissal for the third disciplinary offense is appropriate, taking into account the misconduct itself. The team working on the project included Senior associate Tetiana Havryliuk, lawyers assistant Anastasiia Pohorila. The team was headed by Tetyana Ivanovych, Counsellor, Head of Labor and Employment practice.

ADER HABER successfully protected the interests of the leader of the national confectionery market, which is among the three largest confectionery companies in Ukraine by the volume of production and among the top-100 world companies, in a labor dispute concerning the reinstatement of former Chief Accountant.

Chief Accountant was dismissed for gross misconduct on the basis of Clause 3 of Article 40 of the Labour Code of Ukraine. Gross misconduct consisted in violation of the Chief Accountant`s functional duties, entrusted to her by the labor contract and detailed by the job description, regarding the lawful payment of wages to employees. Illegal behavior of the Chief Accountant also consisted in non-execution of the order of the direct line manager, the General Director, regarding the transfer of the “1C: Accounting software” database into the cloud IT resource, which is a violation of labor discipline.

A former employee appealed to court against disciplinary dismissal, demanded the recognition as illegal and cancellation of employer’s Resolutions on bringing to disciplinary responsibility and dismissal, reinstatement at her position.

As a result of ADER HABER employment team work, the dispute was successfully resolved in the court of first instance and the appellate court, and the cassation appeal was dismissed.

Reasoning her claims, the Plaintiff noted, among other things, that the Reprimand Resolution for violating the payment of wages to employees was illegal, since the General Director was responsible for payment of wages, whose guilt had allegedly been proved by the State Labor Service protocol on administrative offense under Article 41 CUoAO of Ukraine (payment of wages not in full volume), instead, according to the results of the inspection conducted by the State Labor Service no protocol has been drawn up in relation to the Plaintiff, as a Chief Accountant. It is worth noting that the Plaintiff herself initiated the inspection of the State Labor Service regarding alleged violation of the labor legislation by the General Director.

At the same time, the courts supported ADER HABER position that bringing the General Director to administrative liability for violation of labor law requirements cannot be a circumstance that deprives the employer of the possibility of bringing Chief Accountant to disciplinary liability for the same violations of labor legislation, since it is the Chief Accountant responsibility, in accordance with the job description, to ensure the legality, timeliness and correctness of the payment of wages.

Another argument of the Plaintiff was that the employer for the violation of labor discipline had simultaneously applied two penalties: declared a reprimand and dismissed from position, which means she was actually prosecuted for the same offence in violation of Article 147 of the Labour Code of Ukraine and Article 61 of the Constitution of Ukraine.

By countering these arguments, the ADER HABER attorneys proved consistency of labor discipline violations by the Chief Accountant that were found in amount of three, and also that the chosen form of disciplinary punishment in the form of dismissal for the third disciplinary offense is appropriate, taking into account the misconduct itself.

The team working on the project included Senior associate Tetiana Havryliuk, lawyer’s assistant Anastasiia Pohorila. The team was headed by Tetyana Ivanovych, Counsellor, Head of Labor and Employment practice.

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