Adaptive quarantine has been introduced in Ukraine. Slowly, office employees begin to go to work. However, the quarantine is not over, and personnel decisions, including dismissal of employees, are made at any time. The State Labor Office explained using the specific examples what the employees and employers need to know about dismissal during quarantine.
Grounds for dismissal: any changes
Let us remind that the employment contract may be terminated if the employee and the employer have no objections (by agreement of the parties – Article 36 of the Labor Code of Ukraine, hereinafter – the Labor Code), or unilaterally at the employee's request (Article 38 of the Labor Code) on the basis of the application.
If the employment contract was concluded for a specified period or for the time of performance of certain work, then such employment may be terminated on the grounds specified in Art. 39 of the Labor Code, namely: at the request of the employee in case of the illness, disability, which interfere with the performance of work under the contract, or violation by the owner or authorized body of labor legislation on collective or employment agreement.
Irrespective of the introduction of quarantine restrictions, the employment contract may be terminated at the initiative of the employer. The employer can dismiss employees during the quarantine period without risk to be prosecuted if such dismissal is legal (Article 40 of the Labor Code). That is, in case of changes in the organization of labor, including liquidation, reorganization of the enterprise, reduction of the number or staff, the employee's incompatibility with the position due to insufficient qualifications, absenteeism or systematic failure to perform duties without good reason and other grounds.
There are additional grounds for dismissal under Art. 41 of the Labor Code. These include: gross misconduct by certain categories of employees; culpable actions of the manager (as a result of which salaries were paid late or in amounts lower than the statutory minimum salary) or the employee (if these actions give grounds for loss of employer’s confidence in employee); committing an immoral offense; violations related to the provisions of the Law “On Prevention of Corruption” or termination of officials powers.
Employee is forced to write resignation notice: is it legal
The employer may offer to write a resignation notice or letter of negotiated resignation. However, if the employee does not have such a desire, the notice should not be written. After all, these notices are not subject to appeal and it will be difficult to protect their rights.
Irrespective of quarantine and restrictive measures, forcing an employee to do so is illegal.
An important point to consider when writing an application for resignation is to receive unemployment benefits. Thus, the resignation of an employee does not entitle the latter to receive unemployment benefits in the first three months from the moment of registration at the employment center. However, it should be noted that for the period of quarantine, the status of the unemployed is granted to persons from the first day of their registration at the employment center, unemployment benefits are also assigned from the first day. You do not need to visit the employment center in person, it is enough to confirm your unemployment status with any available means of communication.
Is it possible to dismiss employee for absenteeism because of problem with transport
Absenteeism means the absence of an employee from work for more than three hours during the working day without good reason. Absence is one of the grounds for termination of the employment contract at the initiative of the employer. Absence of an employee from work for valid reasons cannot be considered absenteeism.
Labor legislation does not contain a specific list of reasons for absence from work that should be considered valid. In each case, their presence or absence is determined separately. Judicial practice recognizes good reasons, such as being late for work due to an accident or traffic jams. In this case, the court must take into account the specific circumstances and any evidence in accordance with civil procedural law.
Therefore, quarantine and the restrictive measures imposed in this regard, in particular the lack of transport links, can be considered a valid reason.
However, it should be noted that in Ukraine there is no possibility of refusing to go to work without a leave, sick leave or the establishment of remote or flexible working hours by order of the head without harm to work. Therefore, it is better to agree with the employer how the employee will perform his/her duties during the quarantine.
