The Code of Labor Laws of Ukraine does not give us the characteristics of illegal dismissal, but in his life every time heard such a concept, and some had to know it for themselves. Dismissal without grounds or violation of the employee’s labor rights may be considered illegal. If it occurs, the injured worker would like to protect his rights. Such desires are justified, and in legal practice there are many examples of solutions to the problem of illegal dismissal in favor of employees.
Is it illegal to fire?
Any termination of the employer-employee employment relationship is considered dismissal. Accordingly, it is illegal in the event of a violation of the legal procedure, in the absence of grounds or in violation of the procedure established by labor law.
The legislation establishes an exhaustive list of grounds for termination of employment contract, and, accordingly, for dismissal. It is also stipulated that the labor contract can be terminated on other grounds, but only on the grounds provided by the Code of Labor Laws of Ukraine.
Dismissal is illegal if the employment contract is terminated on a basis not provided for in the law. However, there is little formal evidence. The grounds for dismissal must exist in reality. For example, that absenteeism really was. If a legal dispute arises, the employer must prove the existence of this fact.
Otherwise, the court considers the dismissal illegal. In addition, the grounds must be substantial, i.e. those in which the employee’s continued performance of his or her work becomes impossible.
Dismissal by law
You can fire an employee in accordance with the law on the following grounds:
- The employee’s own desire to end the employment relationship;
- reductions in staff, provided that the employee does not fall into categories that cannot be dismissed;
- Multiple non-performance of work in the presence of a disciplinary violation;
- inconsistency of the position at the end of the evaluation;
- gross violation of employment duties.
These are the most common grounds for dismissal. Keep in mind that this list is incomplete. It is also necessary to know that the employer does not have the right to invent a reason for dismissal, explaining it by the company’s charter. The grounds for dismissal are clearly enshrined in law and cannot be supplemented on the initiative of business leaders.
Violations in dismissal
There can be many violations during dismissal. In particular, violations are considered to be:
- dismissal on grounds not included in the Ukrainian Labour Code;
- The use of false (not truthful) grounds;
- dismissal “in hindsight” while a staff member is on leave (any), travel or absence from illness, during a period of incapacity;
- violation of the termination of the employment contract;
- dismissal of persons with whom it is forbidden to terminate an employment contract at the initiative of the employer;
- non-payment or incomplete payment of compensation and severance pay;
- other violations of the rights and guarantees provided to employees.
Disputes about unfair dismissals between employees and employers have a peculiarity – employers, unlike employees, can fabricate documentary evidence of the employee’s bad faith. These can be acts of lateness, absence from the workplace, appearance to work in a state of alcoholic intoxication, etc. AGTL Kharkiv, Kyiv, Odessa specialists are ready to act as a reliable defender of your labor rights.
Dismissal of special categories of citizens
Often the reason for dismissal of the employee is a disciplinary misconduct. For example, it is any one-time gross violation of the employee’s work duties – truancy, the appearance of an employee at work in a state of alcoholic, narcotic or toxic intoxication, etc. the Court may recognize that the penalty of dismissal is illegal because it is disproportionate to the severity of the misconduct.
Special categories include pregnant or on-leave. It is forbidden by law to fire them. The only exceptions are cases of liquidation of the enterprise. No other organizational transformation entitles the manager to the right to dismiss employees of these categories.
Should I challenge the illegal dismissal?
If a person is faced with injustice at work, he must fight for his rights. Very often, employees simply lack knowledge of legal norms, as a result of which they decide not to “contact”. In such situations, the best solution would be to consult an experienced labor lawyer, get a competent and adequate assessment of the situation from him and determine his chances of winning. It is possible that the appeal will lead to the fact that you will be restored to their rights and will receive compensation for the damage caused to you.
There are cases when even a legal, at first glance, dismissal, has a shaky basis, which can be used if you have good knowledge of legal knowledge. For example, an employee was dismissed as a result of a systematic failure to perform his duties in the presence of a valid disciplinary penalty. A number of procedures must be followed by the employer and the failure to perform official duties must be proved. If this is not done, we can count on the restoration of one’s rights.
Therefore, if the employee has doubts that his dismissal is in accordance with the law, it is necessary to consult a specialist.
How to challenge illegal dismissal
Labour disputes are among the most complex. It is important to keep in mind the timing. Any delay significantly reduces the chances of success. It is possible to challenge the dismissal of an illegal one within 1 month of receiving the order and/or the work book. If the specified deadline is missed and the former employee is unable to confirm the existence of valid reasons that prevented him from exercising his right to appeal to the court within the specified time frame, the former employee will be denied a dispute in connection with the absence of a claim period, regardless of whether he or she is entitled to the right.
Only knowledge of the specifics of the processes associated with illegal dismissals, the ability to defend rights during court proceedings, the correct tactics and the correct strategy of actions of lawyers can give the expected positive result.
AGTL Kharkiv, Kyiv, Odessa specialists have a lot of practical experience and relevant qualifications in this area, which allows them to provide a high percentage of positive court decisions in favor of the defendant.
Often, even before dismissal, the employee finds himself in a situation where, the employer, forcing him to terminate the employment contract “of his own will”, creates intolerable working conditions. He unjustifiably prosecutes for minor violations of labor discipline.
Or before the dismissal of the employee are informed about the imminent reduction. In this situation, it is desirable to start collecting evidence, which can then be presented as proof of their rightness to the competent authorities, namely the labour inspectorate, the prosecutor’s office or the court.
If the pre-trial settlement of an employment dispute on dismissal for you is impractical or has not had the desired effect, in this situation you should go to court. To get a fair decision in court, you need to know all the nuances of labor law and the conduct of the trial.
It is correct to collect, to record evidence of illegal dismissal, to competently draw up a statement and to apply in due time to the competent authorities will help the labor lawyer AGTL.
What can be judged if the dismissal is considered illegal?
If the fact of illegal dismissal is proved, the employee will be reinstated at work, and he will receive a salary for the duration of the proceedings, compensation of moral and material harm. In the event that the employee does not express a desire to continue working within the enterprise, he will be dismissed on other grounds and on another number.
The court for illegal dismissal of the employer is charged with material responsibility in the form of obligation to pay:
- Compensation for moral harm;
- Salary for the entire period of illegal dismissal;
- legal costs.
- The employer may also be held administratively responsible.
With the support of a competent lawyer, the court is likely to take such requirements into account and recognize them as legitimate and to be satisfied.
Our experience and professionalism is a guarantee of the protection of your rights and interests.
If you need advice or direct assistance in the situation with illegal dismissal, contact AGTL Kharkiv, Kyiv, Odessa to a lawyer for employment, disputes and issues. We are sure to help you in any, the most difficult and confusing situations.
Call! +38 (050) 676-34-45, +38 (098) 028-08-51.