Reinstatement at Work and Recovery of Average Earnings for Forced Absence: Supreme Court Practice

The submission by an employee of a request to reduce the two-month notice period regarding dismissal may serve as grounds for reducing this period. However, it does not release the employer from the obligation to comply with guarantees when dismissing an employee under Art. 40(1)(1) of the Labor Code of Ukraine (changes in the organization of production and labor). Specifically, from the day of the dismissal notice until the termination of the employment contract, the employer must offer the employee all available positions corresponding to their qualifications.

In the case at hand, the plaintiff worked as a senior legal advisor at a district branch of the regional employment center, which was liquidated as part of the State Employment Service’s optimization.

The employer, within the legally required two-month period, notified the plaintiff about organizational changes and the possibility of dismissal but offered only one vacancy in another region, which the plaintiff declined due to the need to relocate.

The plaintiff then submitted a request to shorten the notice period, which the employer granted without offering other vacancies, leading to the plaintiff’s dismissal. After the dismissal, the plaintiff learned about similar legal advisor positions at a newly created branch in his residential area, which the employer had not offered him.

The lower court dismissed the plaintiff’s claim, and the appellate court upheld this decision.

Upon review, the Supreme Court’s Grand Chamber reversed this decision and remanded the case for reconsideration. The Grand Chamber emphasized that the lower court erred in assuming that the employer was not obligated to rehire the plaintiff due to his request to shorten the notice period. The court also failed to assess whether the employer had fulfilled its obligation to offer available positions, as required by Art. 40(2) and 49-2(3) of the Labor Code of Ukraine.

The Grand Chamber highlighted that reducing the notice period upon the employee’s request does not exempt the employer from offering available positions before dismissal. The employer must present all available vacancies that match the employee’s qualifications, considering the preferential rights outlined in Art. 42 of the Labor Code regarding retention during workforce reductions.

The employee’s refusal of offered vacancies (if any) or the absence of relevant vacancies would justify the termination of employment under Art. 40(1)(1) of the Labor Code within the agreed notice period.