Dismissal at the initiative of the employer: liquidation of the enterprise (institution, organization)

Dismissal at the initiative of the employer is a difficult topic for many employees and employers. This especially applies to the situation when the enterprise, institution or organization is liquidated. In such cases, the employer may dismiss the employee at the initiative of the employer. However, according to the regulatory framework of Ukraine, there are certain rules and restrictions regarding such exemption. This article will discuss in detail the dismissal procedure, the grounds, the procedure for appealing the dismissal decision, the cost, special cases and other important aspects.

Regulatory framework

The regulatory framework of Ukraine, which relates to dismissal at the initiative of the employer, includes the following legislative acts:

• Code of labor laws of Ukraine. This law defines the general principles and rules of work in Ukraine. In particular, Article 40 of the Labor Code of Ukraine establishes the procedure for dismissing an employee at the initiative of the employer in connection with the liquidation of an enterprise, institution or organization.
• Civil Procedural Code of Ukraine. This law establishes the rules for conducting civil proceedings in Ukraine. In particular, Article 254 of the Civil Code of Ukraine defines the procedure for appealing a decision on dismissal at the initiative of the employer.
• Law of Ukraine “On trade unions, their rights and guarantees of activity”. This law defines the rights and obligations of trade unions, as well as guarantees of their activities. In connection with the dismissal of an employee at the initiative of the employer in connection with the liquidation of an enterprise, institution or organization, trade unions have the right to protect the interests of employees and interact with the employer.

• Law of Ukraine “On the Status and Social Protection of Citizens Affected by the Chernobyl Disaster”. This law establishes rules and mechanisms for social protection of citizens who suffered as a result of the Chernobyl disaster. It also provides for certain benefits for these people, which can be important in case of dismissal at the initiative of the employer.
• Resolution of the Plenum of the Supreme Court of Ukraine “On the practice of consideration of labor disputes by courts” of November 6, 1992 No. 9. This resolution contains important recommendations regarding the consideration of labor disputes in Ukraine, including those related to dismissal at the initiative of the employer.

Grounds for dismissal

According to Article 40 of the Labor Code of Ukraine, an employer has the right to dismiss an employee at the employer’s initiative in connection with the liquidation of an enterprise, institution or organization. At the same time, the employer must notify the employee of such a decision no later than two months before the date of termination of the enterprise, institution or organization. The employer must also ensure the payment of all arrears of wages and other payments to employees by the date of termination of the enterprise, institution or organization.

At the same time, the employer cannot dismiss the employee for other reasons not provided for by law. For example, according to Article 40 of the Labor Code of Ukraine, an employer cannot dismiss an employee at the initiative of the employer in connection with changes in the organization of production, labor and employment, except for cases provided for by law.

Dismissal procedure

The procedure for dismissal at the initiative of the employer in connection with the liquidation of the enterprise
, institution or organization defined by Article 40 of the Labor Code of Ukraine. According to this article, the employer has the right to dismiss the employee, provided that:

• he informed the employee about such a decision no later than two months before the date of termination of the enterprise, institution or organization;
• ensures the payment of all arrears for wages and other payments to employees by the date of termination of the enterprise, institution or organization.

At the same time, the employer must draw up relevant documents regarding the dismissal of the employee at the initiative of the employer and hand them over to the employee no later than three days before the date of termination of the enterprise, institution or organization. If the employee does not agree with his dismissal, he has the right to apply to the trade union or to the court to protect his rights.

Procedure of appeal against dismissal decision

According to Article 254 of the Civil Code of Ukraine, the employee has the right to appeal the decision on dismissal at the initiative of the employer in connection with the liquidation of the enterprise, institution or organization in court. However, before going to court, the employee should try to settle the dispute with the employer through negotiations or other peaceful methods.

If it is not possible to resolve the dispute through negotiations, the employee can apply to the court. The court will check whether all the requirements of the law have been complied with by the employer regarding the employee’s notice of dismissal and payment of debts. In case of violation of the dismissal rules, the court may declare the dismissal invalid and reinstate the employee.

Cost

Dismissal at the initiative of the employer in connection with the liquidation of the enterprise, institution or organization should not have additional costs for the employee. The employer must ensure the payment of all arrears of wages and other payments to employees by the date of termination of the enterprise, institution or organization. Also, the employee has the right to compensation for unused vacation time and other benefits according to the law.

Since dismissal at the initiative of the employer in connection with the liquidation of the enterprise, institution or organization is unpleasant and unexpected for the employee, the legislation provides for additional benefits and compensations for the employee.

In particular, according to Article 28 of the Law of Ukraine “On the Status and Social Protection of Citizens Affected by the Chernobyl Disaster”, employees affected by the Chernobyl disaster and disabled in the first, second or third category are entitled to additional payments upon dismissal at the initiative of the employer in connection with the liquidation of an enterprise, institution or organization.

In addition, employees who have unused vacation time are entitled to compensation for that time. According to Article 123 of the Labor Code of Ukraine, an employee has the right to paid leave that he did not use before the date of dismissal at the initiative of the employer.

Special cases

The legislation provides for some special cases of dismissal at the initiative of the employer in connection with the liquidation of an enterprise, institution or organization. For example, according to Article 46 of the Labor Code of Ukraine, if the liquidation of an enterprise, institution or organization is a consequence of economic instability or other circumstances beyond the control of the employer, the employer is obliged to pay the employees wages for the last month of work, as well as reimburse expenses related to the termination of the employment contract.

To avoid such situations, employees have the right to demand timely payment of wages and other benefits from employers. In addition, workers have the right to protect their rights and interests through trade unions and the court system.

Four funny judicial examples from the lives of clients

Life can prepare us for unforeseen situations, including at work. Below are some funny examples of court cases related to dismissal at the initiative of the employer:

1. The seller asked the customer to take off his clothes to check the size of the product. The client refused and the seller was fired from his job for violating business ethics.
2. The employer fired the employee because he tried to perform his duties on a remote island where he was on vacation.
3. The employer fired the employee because he refused to open a window at the workplace because he was next to a noisy construction site.
4. The employer fired the employee because he used the word “redundant” too often in his work e-mail.

These examples may seem funny, but they show that the reasons for dismissal at the initiative of the employer can be very diverse. A serious violation of labor discipline or professional duties is not necessarily required to dismiss an employee at the initiative of the employer.

According to the Labor Code of Ukraine, an employer has the right to dismiss an employee at the employer’s initiative in cases provided for by law. However, such dismissal must be justified and comply with the requirements of the law.

In the example of the use of the word “redundant” in a work email, the employer must have considered such use to be unacceptable or inappropriate in a professional environment. However, in order for the dismissal to be legal, it is necessary to justify such a decision accordingly and follow the dismissal procedure provided for by law.

In any case, employees have the right to protect their rights and interests in the judicial system if they believe that their dismissal was illegal. In addition, trade unions can provide support and protection to employees in cases of dismissal at the initiative of the employer.