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Ask a Lawyer What to Do if You Are Going to Be Fired

05/ 02/ 2018
  Comment by Iryna Shliakhovska, senior associate and attorney-at-law at Legal Alliance Company, for Rabota.UA. The employer has the right to terminate the employment contract, that is to dismiss the employee on his own initiative only in the following cases described in articles 40 and 41 of the Labour Code of Ukraine: 1) changes in the organization of production and labour, including liquidation, reorganization, bankruptcy or re-profiling of the enterprise, institution or organization, reduction in the number or staff of workers; 2) incompatibility of the employee with the position or performed work due to lack of qualification or health condition, which prevents the continuation of the work. Also in case of refusal to access state secrecy or cancellation of access to state secrecy, if the performance of duties requires access to it; 3) the employee systematically, without good reason, does not fulfil his duties if he has already been subjected to disciplinary or public penalties. 4) absence from work (including the absence of more than three hours during the working day) without good reason. 5) absence from work for more than four months continuously due to temporary incapacity for work, not including maternity leave, unless a longer period of preservation of the position for a particular disease has been established. For employees who cannot work because of labour injuries or occupational diseases, the place of work (position) is preserved until the restoration of work capacity or the confirmation of disability. 6) reinstatement of the employee who previously performed this work; 7) appearance at work in a condition of narcotic, alcohol or toxic intoxication; 8) theft of property of the owner; 9) call or mobilization of the individual owner during a special period. 10) the employee did not pass the trial period. Dismissal on the grounds specified in clauses 1 and 2 and 6 of Article 40 of the Labour Code of Ukraine is allowed if it is impossible to transfer an employee with his consent to another job. It is not allowed to dismiss an employee at the employers initiative during his temporary incapacity for work (see clause 5), as well as when he is on leave, except for the case of the complete liquidation of the enterprise. Contract with some categories of employees, for example, head, chief accountant, a person performing educational functions, can be terminated for additional reasons (Article 41 of the Labour Code of Ukraine). When Is Dismissal Illegal? The list specified in the legislation is exhaustive. If you are going to be dismissed for other reasons, it is illegal. Also, the employment contract can be terminated on the grounds described in Article 36 of the Labour Code of Ukraine, including by agreement of the parties. Obviously, if the employer insists on dismissal by agreement of the parties, there are no legitimate grounds for dismissal on his initiative. Why can an employer insist on such a decision? First, in order to dismiss lawfully on the initiative of the employer it is necessary to prepare a large number of documents, and such a decision must be motivated and justified. Secondly, some employees, for example, pregnant women, women with children under the age of 3 or 6, single mothers with a child under 14 years and a disabled child cannot be dismissed on the initiative of the employer. How to Protect Oneself in Court? The employee can apply to the trade union organization (if it is in the company), the territorial body of the State Service of Ukraine for Labour or a local general court at the location of the company or place of registration (residence). It is worth noting that, with a significant increase in fines for violation of labour legislation, the employees opportunity to apply to the State Service of Ukraine for Labour is a significant leverage of influence. If you were illegally dismissed, in court you can demand to be reinstated, to change the wording of the reasons for dismissal, be paid the average earnings for the time of forced absence, the difference in earnings during the performance of the lower paid work or reimbursement of moral damage. The victim must apply to court within a month from the date of delivery of a copy of the dismissal order or from the date of issue of the work record card accordingly (part 1 of Article 233 of the Labor Code). Otherwise, it will be necessary to justify the reasons for missing this period, for example, a long illness, but there must be evidence, in this case - a sick list. It should be noted that if an employee wrote a letter of resignation by agreement of the parties, signed an additional agreement to the labor termination agreement based on the consent of the parties, signed an order of dismissal by agreement of the parties and did not indicate that he did not agree with the grounds for dismissal, it is virtually impossible to prove the illegality of dismissal. There is no special procedure for dismissal by agreement of the parties, so this is the case when it is important not to sign any documents. It will be necessary that there are witnesses who confirm that there was no agreement and that the employee was pressured, but such testimony is extremely problematic. Unfortunately, there are no other effective tools for protecting their rights when the employer seeks to fire an employee. What Can Be Done While You Are Still Working? You can try to take pre-trial settlement measures while you are still working for the company. For example, contact the immediate management of the enterprise, the company headquarters, the trade union. Written in writing to disagree with the actions of the employer: write memoranda in the name of the immediate management of the enterprise, letters to headquarters, draw up acts, record a conversation on the recorder and be cautious, putting a signature on the documents. First of all, you do not need to sign documents whose content is unclear or not entirely clear. As mentioned above, these documents are subject to termination by agreement of the parties. All this will be the evidence during the trial. Judicial practice shows that 70% of labour disputes are resolved in favour of employees. For example, at one enterprise staff redundancy took place and one employee was made redundant due to the reorganization and the need to save money. At the same time, the number of employees has not changed. The court reinstated the employee at work, since it was not proven how making one employee redundant would help save money.

Comment by Iryna Shliakhovska, senior associate and attorney-at-law at Legal Alliance Company, for Rabota.UA.

The employer has the right to terminate the employment contract, that is to dismiss the employee on his own initiative only in the following cases described in articles 40 and 41 of the Labour Code of Ukraine:

1) changes in the organization of production and labour, including liquidation, reorganization, bankruptcy or re-profiling of the enterprise, institution or organization, reduction in the number or staff of workers;

2) incompatibility of the employee with the position or performed work due to lack of qualification or health condition, which prevents the continuation of the work. Also in case of refusal to access state secrecy or cancellation of access to state secrecy, if the performance of duties requires access to it;

3) the employee systematically, without good reason, does not fulfil his duties if he has already been subjected to disciplinary or public penalties.

4) absence from work (including the absence of more than three hours during the working day) without good reason.

5) absence from work for more than four months continuously due to temporary incapacity for work, not including maternity leave, unless a longer period of preservation of the position for a particular disease has been established. For employees who cannot work because of labour injuries or occupational diseases, the place of work (position) is preserved until the restoration of work capacity or the confirmation of disability.

6) reinstatement of the employee who previously performed this work;

7) appearance at work in a condition of narcotic, alcohol or toxic intoxication;

8) theft of property of the owner;

9) call or mobilization of the individual owner during a special period.

10) the employee did not pass the trial period.

Dismissal on the grounds specified in clauses 1 and 2 and 6 of Article 40 of the Labour Code of Ukraine is allowed if it is impossible to transfer an employee with his consent to another job.

It is not allowed to dismiss an employee at the employer’s initiative during his temporary incapacity for work (see clause 5), as well as when he is on leave, except for the case of the complete liquidation of the enterprise.

Contract with some categories of employees, for example, head, chief accountant, a person performing educational functions, can be terminated for additional reasons (Article 41 of the Labour Code of Ukraine).

When Is Dismissal Illegal?

The list specified in the legislation is exhaustive. If you are going to be dismissed for other reasons, it is illegal.

Also, the employment contract can be terminated on the grounds described in Article 36 of the Labour Code of Ukraine, including by agreement of the parties. Obviously, if the employer insists on dismissal by agreement of the parties, there are no legitimate grounds for dismissal on his initiative.

Why can an employer insist on such a decision? First, in order to dismiss lawfully on the initiative of the employer it is necessary to prepare a large number of documents, and such a decision must be motivated and justified. Secondly, some employees, for example, pregnant women, women with children under the age of 3 or 6, single mothers with a child under 14 years and a disabled child cannot be dismissed on the initiative of the employer.

How to Protect Oneself in Court?

The employee can apply to the trade union organization (if it is in the company), the territorial body of the State Service of Ukraine for Labour or a local general court at the location of the company or place of registration (residence). It is worth noting that, with a significant increase in fines for violation of labour legislation, the employee’s opportunity to apply to the State Service of Ukraine for Labour is a significant leverage of influence.

If you were illegally dismissed, in court you can demand to be reinstated, to change the wording of the reasons for dismissal, be paid the average earnings for the time of forced absence, the difference in earnings during the performance of the lower paid work or reimbursement of moral damage.

The victim must apply to court within a month from the date of delivery of a copy of the dismissal order or from the date of issue of the work record card accordingly (part 1 of Article 233 of the Labor Code). Otherwise, it will be necessary to justify the reasons for missing this period, for example, a long illness, but there must be evidence, in this case – a sick list.

It should be noted that if an employee wrote a letter of resignation by agreement of the parties, signed an additional agreement to the labor termination agreement based on the consent of the parties, signed an order of dismissal by agreement of the parties and did not indicate that he did not agree with the grounds for dismissal, it is virtually impossible to prove the illegality of dismissal.

There is no special procedure for dismissal by agreement of the parties, so this is the case when it is important not to sign any documents. It will be necessary that there are witnesses who confirm that there was no agreement and that the employee was pressured, but such testimony is extremely problematic.

Unfortunately, there are no other effective tools for protecting their rights when the employer seeks to fire an employee.

What Can Be Done While You Are Still Working?

You can try to take pre-trial settlement measures while you are still working for the company. For example, contact the immediate management of the enterprise, the company headquarters, the trade union. Written in writing to disagree with the actions of the employer: write memoranda in the name of the immediate management of the enterprise, letters to headquarters, draw up acts, record a conversation on the recorder and be cautious, putting a signature on the documents.

First of all, you do not need to sign documents whose content is unclear or not entirely clear. As mentioned above, these documents are subject to termination by agreement of the parties. All this will be the evidence during the trial.

Judicial practice shows that 70% of labour disputes are resolved in favour of employees. For example, at one enterprise staff redundancy took place and one employee was made redundant due to the reorganization and the need to save money. At the same time, the number of employees has not changed. The court reinstated the employee at work, since it was not proven how making one employee redundant would help save money.

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