The company employee was mobilized. What rights does he have? What payments should he receive from the employer?
According to sec. 2 of Art.39 of the Law of Ukraine “On Military Duty and Military Service” of 25.03.1992, № 2232-XII (hereinafter − Law № 2232) and sec. 3 of Art.119 of the Labour Code of Ukraine (hereinafter − Labour Code), for employees called up for military service, military service for mobilizing, for a special period or accepted for military service under the contract in the event of a crisis situation threatening the national security, announcement of the decision on carrying out mobilization and (or) the imposition of martial law until the end of a particular period or before the date of the actual demobilization, should be preserved the place of work, position and average salary at the company regardless of their subordination and forms of ownership, in particular, individuals - entrepreneurs for whom they were working at the time of the call-up. Consequently, the employer must preserve the employee’s work place (position) and pay the average wage till the employee to be demobilized.
Calculation of the average wage of workers is carried out in accordance with the procedure for the calculation of the average wage, approved by the Cabinet of Ministers of Ukraine dated 08.02.1995, № 100, taking into account payments during two last calendar months prior to the event, which is connected with the corresponding payment. Calculation of the average wage is carried out for working days, which should be worked out by the mobilized employee under the schedule operation of the company or individual schedule of work (a letter from the Ministry of Social Policy of Ukraine dated 11.08.2014, № 1146/13/84-14).
If the employee is not demobilized after the mobilization, and continues to serve under contract − he gets the same guarantees for a period of the concluded contract.
Guarantees are preserved for the employees, which during performance of military service:
- injured (other damage to health) and are being treated in hospitals − until the day following the day of military registration in the military commissariats after dismissal from military service in the event of termination of treatment in medical institutions regardless of the duration of treatment;
- captured − until the day of return from the captivity;
- declared missing − until the day of the appearance after declared missing or the day when the court presumed them dead.
In 2015, the payment of compensation was carried out in the framework of the average wage at the expense of the state budget. The Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine” of 24.12.2015, № 911-VII stated in a new version of sec.3 and 4 of Art.119 of the Labour Code, from which there were excluded the rate of payment of such compensation from the budget at the expense of the state budget in accordance with the procedure established by the Cabinet of Ministers of Ukraine. As a result, since 01.01.2016, the employers are divested of the possibility to obtain compensation from the state budget within the limits of the average wage to employees called up for military service in a special period.
An additional point is that since the employers do not receive compensation payments from the budget, then the exemption from taxation of payments, accrued at the range of the average wage for such employees, does not work.
Instead of this, in sec.2 of Art.265 of the Labour Code there is liability for the employers in the form of the fine of 10 minimum wages for each employee, for which the guarantees are not provided for, stipulated by sec.3 and 4 of Art.119 of the Labour Code.
In addition, the administrative responsibility is also possible. In accordance with Art.41 of the Code of Administrative Offences for violation of guarantees and benefits established by the law to employees required to perform duties under the laws of Ukraine “On Military Duty and Military Service”, “On alternative (non-military) service”, “On Mobilization Preparation and Mobilization”, it should be imposed an administrative fine from UAH 850 to UAH 1 700.
