Due to difficult circumstances, the Verkhovna Rada of Ukraine amended the labor legislation provided by the Law of Ukraine "On the Organization of Employment Relations during Martial Law" dated 15.03.2022 No. 2136-IX, which was commented by BDO in Ukraine’s payroll and personnel experts.
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First, it should be noted that dismissal of employees at the employer's initiative on the grounds of martial law is not allowed and will be regarded as a gross violation of labor legislation.
If it happens that the employer fired the employee, such employee may file a claim to the court. If after the end of martial law the State Labor Inspectorate inspects such an entity, a fine against such employers and bringing them to justice will be inevitable.
Furthermore, the employer cannot dismiss employees in connection with their conscription into the ranks of the Armed Forces of Ukraine or the Territorial Defense. For such employees, the employer must maintain the average monthly salary, place of work and position.
Therefore, an employee can be dismissed only on a specific basis, with the consent of both parties, at the employee's own request or under the relevant articles of the Labor Code.
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In doing so, in case of dismissal under conditions of voluntary termination of employment or with the consent of the parties, the employer must dismiss the employee within the period requested.
To do this, the employee must write a notice of resignation and transfer it in a convenient way (in person or by registered mail with a description of the attachment and a delivery confirmation, or by electronic means of communication). The day of receipt of such a letter will be considered the day of submission of a leave notice by the employee.
Employees who do not show up for work as a result of hostilities cannot be fired for absenteeism; however, keeping an average salary for such an employee is unsubstantiated. In this case, we recommend tabulating the absence of such an employee with the symbol "AU" ("absence for unclear reasons") or "O" ("other reasons for absence"). After the end of martial law, when an employee returns to work, we consider it necessary to invite him to provide an explanation and determine whether the reason for absence is valid.
It should also be noted that the prohibition on dismissal of employees in connection with the reduction of staff or the number of employees is not provided by labor law. However, we recommend to wait until the stabilization of the situation in the country.
It is obvious that we are all in for another labor reform No. 2 during the war: a new bill was registered in the Verkhovna Rada on April 5, 2022. We will inform you in more detail after the adoption of the corresponding law.