The procedure for dismissal of employees in liquidation of the enterprise. Mandatory employment of a certain category of workers.

Dismissal of employees in case of liquidation of the enterprise is provided for in clause 1 of Article 40 of the Labor Code of Ukraine (hereinafter - the Labor Code). In accordance with the specified article, an employment contract concluded for an indefinite period, as well as a fixed-term employment contract before the expiration of its validity period, may be terminated by the employer in cases, in particular , of changes in the organization of production and work, including liquidation , reorganization, bankruptcy or repurposing of the enterprise. institutions, organizations, reducing the number or staff of employees

The procedure for such dismissal is regulated by Article 49-2 of the Labor Code . According to the specified article , employees are personally warned about the next release no later than two months in advance. When releasing employees in cases of changes in the organization of production and work, the overriding right to stay at work provided for by legislation is taken into account. Simultaneously with the notice of dismissal in connection with changes in the organization of production and work, the owner or a body authorized by him, an individual who uses hired labor, offers the employee another job at the same enterprise, institution, organization, with an individual. In the absence of work in the relevant profession or specialty, as well as in the case of the employee's refusal to transfer to another job at the same enterprise, institution, organization, or individual, the employee, at his own discretion, applies for help to the state employment service or finds employment on his own. If the dismissal is mass in accordance with Article 48 of the Law of Ukraine "On Population Employment" , the owner or a body authorized by him, a natural person who uses hired labor, informs the state employment service about the planned dismissal of employees. The notification must contain information about the planned mass release of employees, defined by the second part of Article 49-4 of this Code , and consultations with the elected body of the primary trade union organization (trade union representative). The notification must be submitted to the elected body of the primary trade union organization (trade union representative). If there are several primary trade union organizations, the notification is sent to the joint representative body formed by them on the basis of proportional representation, and in the absence of such a body - to the elected body of the primary trade union organization (trade union representative), which unites the majority of employees of this enterprise (institution, organization).

Therefore, in the case of liquidation of an enterprise, institution, or organization, it is mandatory to warn employees about dismissal no later than two months in advance. And also, in accordance with paragraph 3, paragraph 4, part 3, article 50 of the Law "On Employment of the Population" , the employer is obliged to submit to the territorial bodies of the central body of executive power, which implements state policy in the field of population employment and labor migration, information on planned mass release of employees in connection with the liquidation no later than two months before the release .

Severance payments in connection with liquidation.

According to Art. 44 of the Labor Code, upon termination of the employment contract on the grounds specified in Clause 1 of Art. 40 KZpP the employee is paid severance pay in the amount of not less than the average monthly earnings. Some categories (for example) of persons who suffered as a result of the Chernobyl disaster, severance pay is paid in a larger amount.   Monetary compensation for unused vacation days is also provided for (Article 83 of the Labor Code). Calculation upon dismissal is carried out in accordance with Art. 116 KZpP .

Employment

In the case of liquidation of the enterprise, there are categories of employees whom the employer is obliged to employ : pregnant women and women who have children aged three (up to six years - part 6 of Article 179 of the Labor Code ) years, single mothers with a child under 14 years of age or a disabled child, single parents, guardians (custodians) and named parents under similar circumstances ( Article 184 of the Code of Criminal Procedure and Article 186-1 of the Code of Criminal Procedure ) and employees younger than 18 years old ( Article 198 of the Labor Code ).

In addition, mandatory employment is provided for persons who suffered as a result of the Chernobyl disaster and are classified in categories 1 and 2, as well as for participants in the liquidation of the consequences of the accident at the Chernobyl nuclear power plant, who belong to category 3 ( clause 7, part 1, article 20 , clause 1 part 1 of article 21, clause 1 part 1 of article 22 of the Law "On the status and social protection of citizens who suffered as a result of the Chernobyl disaster").

Also, these categories are paid assistance in the amount of three times the average monthly salary.

The legal mechanism for the employer's implementation of the obligation to employ certain categories of employees and the terms of employment in case of liquidation is not defined by legislation . At the same time, there are opinions that the wording "dismissal with mandatory employment" means that a gap in time between dismissal and employment is not allowed. At the same time, some specialists reduce such a mechanism to the possibility of applying to the employment service. However, in the opinion of most experts, this will not be the fulfillment of the duty regarding employment. In addition, it is not clear how to "regulate" such employment later, how to show that exactly such actions of the employer were the result of the employee's employment through the employment service.

Besides   The Ministry of Economy in the letter dated May 4, 2021 No. 4712-06/26166-07 notes that, in his opinion, in the case of liquidation of the enterprise, a pregnant woman can be dismissed in accordance with Clause 1 of the first part of Article 40 KZpP with subsequent employment. And he adds that according to Clause 9 of the resolution of the Plenum of the Supreme Court of Ukraine "On the Practice of Consideration of Labor Disputes by Courts" dated November 6, 1992 No. 9 , it cannot be recognized that the employer has fulfilled the obligation regarding employment, if the employee was not provided on for the same reason or at another company, another job or offered job, which she refused for valid reasons (for example, due to health).

That is, if an employee refuses to be employed at another enterprise and there is a written statement about this, indicating the reasons for such refusal (except for good reasons), then it can be assumed that the employer has fulfilled his obligation regarding mandatory employment.

Most experts, nevertheless, come to the conclusion that it is ideal if the employee, in respect of whom the law allows dismissal in case of complete liquidation of the organization with mandatory employment, is dismissed in order of transfer to another organization ( clause 5 of article 36 of the Labor Code ). Only in this case will the letter of the law be fully observed. Or it is allowed to apply the exemption by agreement of the parties ( clause 1 of article 36 of the Code of Criminal Procedure).

AT THE SAME TIME ! There is a legal opinion of the Grand Chamber of the Supreme Court ( decision dated April 24, 2018 in case No. 911/3259/16 ), which states that the obligation to employ workers released as a result of the complete liquidation of the employer , including women who have children up to three years, assigned specifically to the state employment service , and not to the employer, which is liquidated without a legal successor. Since it is the state employment service, in Part 4 of Art. 49-2 of the Labor Code , takes actions to employ a dismissed employee, there are no grounds for imposing responsibility on the defendant in this case.

If we are guided by this practice of the Supreme Court, then the employer's duty in employment comes down to timely and correct notification of the employment service.

Liability for unemployment of certain categories of workers

According to Articles 105, part five of Article 111 of the CCU , the powers to manage the affairs of a legal entity, including the dismissal of employees of a terminated legal entity, are transferred to the liquidation commission (liquidator) from the moment of appointment.

What are the consequences of not fulfilling the mandatory employment requirement?

A review of judicial practice showed that by challenging an illegal dismissal in court, a person can be reinstated at work, and the organization is obliged to pay him the average salary for the period of forced absenteeism (taking into account the severance pay received) if, at the time of the court's decision, the liquidation process organization is not complete.

In the event that an employee is dismissed without a legal basis or in violation of the established procedure, but his reinstatement at his previous job is impossible due to the liquidation of the organization, the body that considers the labor dispute obligates the liquidation commission or the owner (the body authorized to manage the property of the liquidated organization, and in appropriate cases, the legal successor, to pay the employee wages for the entire period of forced absenteeism. At the same time, the body that examines the labor dispute recognizes the employee as one who was dismissed according to paragraph 1 of Article 40 of the Labor Code ( Article 240-1 of the Labor Code ).

The legislation provides for criminal liability for gross violation of labor legislation ( Article 172 of the Criminal Code of Ukraine ) in the form of a fine of two thousand to five thousand non-taxable minimum incomes of citizens (from UAH 34,000 to UAH 85,000) ; deprivation of the right to hold certain positions or engage in certain activities for a period of up to three (five) years; corrective works for a period of up to two years; arrest for up to six months.

Also, the law provides for administrative liability. According to Art. 41 of the Labor Code , violation of the requirements of legislative and other normative acts on labor protection - entails the imposition of a fine on employees from four to ten tax-free minimum incomes of citizens (68 to 170 hryvnias) and on officials of enterprises, institutions, organizations, regardless of the forms of ownership and citizens - subjects of entrepreneurial activity - from twenty to forty tax-free minimum incomes of citizens (340 - 680 hryvnias)

At the same time, there is also material responsibility for failure to submit or violation by the employer of the established procedure for submitting data provided for by the third paragraph of point 4 of part three of Article 50 of the Labor Code "On Employment of the Population" , that is, data on the planned mass release of employees in connection with changes in the organization of production and work , including liquidation. Thus, in accordance with Article 53, Part 6 of the Law on Employment of the Population, in this case, a fine in the amount of four times the minimum wage , established at the time of discovery of the violation, is levied.

In this article, we can offer a template of the Order on dismissal in connection with the liquidation of the enterprise , which you can create yourself in the Instaco designer by following the link . To create, you only need to enter the necessary data in the designer.

A sample Order on dismissal in connection with the liquidation of the enterprise was prepared by attorney Natalya Krasnokutska (Instagram @advocate_knn , Facebook instaADVOCATE ).

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