Today is a very significant category of cases in courts, such as labor disputes connected with the renovation work. This applies in cases where it is illegal on the grounds laid off employee. Also, an important aspect – if the court will prove that the dismissal was unlawful, it also paid the sum of forced absence.
This payment is made by Cabinet of Ministers of Ukraine of 8 February 1995 g. N 100 “On approval of the calculation of the average wage” :. As for the calculation, refers to the calculation of the average wage, which is used in cases including forced absence under paragraphs “With” item 1 of this Order. Additionally, the article 27 of the Law of Ukraine “On Remuneration of Labor” stated: “The method of calculating the average wage worker in the cases provided by law established by the Cabinet of Ministers of Ukraine. To calculate the average salary pensions determined according to the Law of Ukraine “On pensions”.
The state provides quarterly preparation and publication of statistics on the average wage and average working hours by sector, groups of occupations and positions, and annual publication of data on labor costs. “
It is important that it drew the attention of the Supreme Court of Ukraine in its decision of 01.14.2014 №21-395a13 – postanovlyayuchy decision on reinstatement, the court must decide on the payment of average earnings, accompanied by his size to order.
A final position on the calculation of average earnings during his forced absence, was formed in the order of the Supreme Court of 23.01.2011, № 6-87tss11. Court rules given CMU from 02.08.95 g. №100 “On approval of the calculation of average wages” (hereinafter – the “Procedure”) notes the following.
The average monthly salary during his forced absence of the employee is calculated based on payments in the last two months of the calendar preceding the day of dismissal from work (para. 3 p. 2 of the Order). Employees who have worked less than two calendar months, the average wage is calculated based on payments for actually worked.
The basis for determining the total amount of income to be paid during his forced absence, is the average daily wage worker. Interest payments calculated on the average salary over the last two months of work conducted by multiplying the average daily wage for the number of working days to be paid the average earnings (p. 5 Procedure Section IV).
Average daily (hourly) wages determined by dividing the salary for two months in the number of working days (p. 8 Procedure). The average monthly number of days is calculated by dividing the total number of 2 working days prior two calendar months, according to the schedule of the company, established in compliance with the law. (Para. 3 p. 8 Procedure).
The average monthly wage defined by law as an estimated value for the calculation of benefits is calculated by multiplying the average daily wage on the average number of days in the billing period. Types of payments included in the calculation of the average wage, see the Third Order.
It is also important to note main points and the position of the Labor Code of Ukraine, which are directly related to the settlement of issues of reinstatement and grounds for the charges for forced absence.
In Article 40 of the Labor Code, these cases of termination of employment contract by the owner or the authorized body.
… employment contract concluded for an indefinite period and fixed-term employment contract before the expiry of its validity may be terminated by the owner or authorized body only if:
1) changes in production and labor, including liquidation, reorganization, bankruptcy or conversion of enterprises, institutions, organizations, downsizing or staff;
2) detected nonconformity employee position or work due to lack of training and health, which prevent the continuation of this work, as well as in the case of refusal of access to state secrets or cancellation of access to state secrets when performing its required the relationships requires access to state secrets;
3) systematic failure employee without good reason of duties imposed by the employment contract or internal labor regulations, if an employee previously applied disciplinary or civil penalties;
4) absence (including absence from work for more than three hours during the working day) without good reason;
5) failure to attend work for more than four consecutive months due to temporary disability, not counting maternity and childbirth, if the law does not set a longer period preserving jobs (positions) with a certain disease. For employees who are unable to work because of industrial injury or occupational disease, work place (position) is kept to a rehabilitation or disability;
6) reinstatement of the employee previously performed this work;
7) appearance at work drunk, the influence of drugs or toxic substances;
8) committing theft in the workplace (including small) of the property owner, established by the verdict, which came into force or decree authority authorized to impose administrative penalties or application of social influence;
10) conscription or mobilization owner – an individual during a particular period;
11) a non-employee position, which it adopted, or work during the probation period.
Also provided in Art. 41 of the Labor Code, additional grounds for termination of the employment contract by the owner or the authorized body for certain categories of workers under certain conditions. Namely:
1) single gross breach of work duties leader enterprises, institutions, organizations of all forms of ownership (branch, representative offices and other separate division), his deputy, chief accountant of the enterprise, institution, organization, his deputies, and officers of the revenue and fees, which conferred special ranks and officers of central executive bodies that implement public policy framework for financial control and price control;
1-1) guilty actions of the enterprise, institution, organization, resulting in wages paid on time or in amounts lower than the established statutory minimum wage;
2) guilty actions of an employee who is directly serving monetary, trade or cultural values, if these actions give rise to loss of confidence on the part of the owner or the authorized body;
3) an employee who performs educational functions, immoral misconduct, not compatible with the continuation of this work;
4) being contrary to the Law of Ukraine “On prevention of corruption” under the direct subordination of a close person;
5) termination of powers of public officials.
Separately on p. 5 of this article, it should be noted that the provision included in recently. And during deployment, causing a resonance in the circles of practitioners, advocacy and HR. This is provided primarily so that the employer, namely the owner of the company, was able to dismiss the director, on its own initiative. This is still quite easy – going quorum of votes at the general meeting of the company, which decided to terminate powers. It is accordingly recorded in the minutes. Later a decree on dismissal of the head, referring to paragraph 5 of Article 41 of the Labor Code. Installed guarantee compensation as monthly salary payments 5x, during the liberation.
Also recall that officials considered: head, chief accountant (according to Art. 65 of the Commercial Code of Ukraine), and others who may be separately indicated in the company’s charter, under the category of “official”. That is actually arbitrarily be released only higher levels of government now, not any worker endowed with organizational and regulatory or administrative funtsiyamy.
It is important to know when you dismiss cases prohibited. According to Art. 42 KZPP – preferential right to remain at work when layoffs due to changes in production and labor.
With the reduction of the number of staff or due to changes in production and labor preferential right to remain at work provided workers with higher skills and productivity.
With equal productivity and skills advantage in leaving the work provided by:
1) family – if there are two or more dependents;
2) persons in a family where no other employees with self earnings;
3) employees with long continuous service in the enterprise, institution or organization;
4) employees who are enrolled in higher and secondary specialized educational institutions on the job;
5) combatants, war invalids and persons covered by the Law of Ukraine “On the status of war veterans, guarantees of their social protection”;
6) the authors of inventions, utility models, industrial designs and innovations;
7) employees who have received this enterprise, institution, organization of industrial injury or occupational disease;
8) the number of persons deported from Ukraine for five years after the return to permanent residence in Ukraine;
9) employees from the former conscripts, military service during mobilization in times of crisis, military conscription officers and those who were in alternative (non-military) service – within two years from the date of dismissal from service.
10) employees who have less than three years until the retirement age at which a person is entitled to pension benefits.
The advantage of leaving the work may be provided and other employees, if the legislation of Ukraine.
Some similarities are circumstances release and in the fulfillment of public service, it’s also a labor relations, but with certain characteristics. However, the general provisions on adoption, dismissal, salaries, provide holidays, all governed by labor legislation.
So forth below, the following provisions of the Law of Ukraine “On civil service”.
In p. 1 of Article 87 of the Act, contains the following provisions:
“… The grounds for termination of civil service appointments subject of the initiative are:
1) reduce the number or state civil servants, elimination of a public authority, reorganization of state authority in cases where there is no possibility of another offer equivalent civil service positions, and in the absence of such a proposal – other work (civil service positions) in this state bodies;
2) a non-civil servant’s position during the probation period;
3) obtaining a civil servant two consecutive negative evaluations Evaluation of performance;
4) committing public official misconduct, which provides relief … “.
And according p. 3. 87: “The procedure for the release of public servants under paragraph. 1 p. 1 of this Article is determined by labor legislation.”
Also, p. 4 of this article, it is stated on severance pay upon dismissal – “in case of dismissal from government service under paragraph. 1 p. 1 of this article civil servant paid severance pay in the amount of average monthly salary.”.
Therefore, in practice, give bright, “fresh” examples of renovation in public service. In this case, officials of the National Police of Ukraine.
– recognition and wrongful cancellation of the decision (conclusion) Attestation Commission; abolition of the order of the Main Directorate of the National Police in the Dnipropetrovsk region in the release of the Claimant (C-528264) as deputy under attestation letter;
– renovation person serving in the police as a Deputy;
– recovery of the Main Directorate of the National Police in the Dnipropetrovsk region Claimant average earnings in the amount of 79 800,00 grivnas. during his forced absence;
assumptions immediate enforcement of the judgment in the renovation of the plaintiff as a Deputy – Chief of Criminal Police Dnieper Police Department of the Main Directorate of the National Police in the Dnipropetrovsk region.
The main arguments in justification requirements were: Plaintiff generally not subject to certification in connection with what was in office less than a year, and not subject to certification; in the process of certification commission illegally does not include that the claimant temporarily acting in another position; Claimant person assessed not objective, namely, does not include the positive characteristics, performance, reward, encouragement.
Resolution of 2 June 2017 in the administrative case number 804/1565/17 Dnepropetrovsk District Administrative Court granted the claim in part, namely only in terms of the amount left to recover for absenteeism was reduced.
The text of the decision can be found at the following link: http://www.reyestr.court.gov.ua/Review/66907508
– recognize the illegal and annul the decision Main police office in Lviv region Claimant inclusion in the list of police officers who are subject to attestation, on the grounds stipulated by the Law of Ukraine “On the national police”;
– recognize the illegal and annul the results of attestation in the form of a decision (opinion) Attestation Commission Main police office in Lviv region, made withdrawal protocol and Certification Commission;
– recognize the illegal and cancel the order of the Main Directorate of the National Police in the Lviv region in terms of separation from service police officer through discrepancy claim. 5 h. 1 tbsp. 77 Law of Ukraine “On the national police” Claimant;
– renew the Claimant as police Galician Police Department of the Main Directorate of the National Police in the Lviv region, a forced absence zarahuvavshy to seniority;
– oblige Main police office in Lviv oblast charge and pay all kinds of financial support during his forced absence, by day release.
The main arguments in justification requirements were: the decision certifying commission of the Main Directorate of the National Police in Lviv region, issued a protocol mismatch plaintiff’s position and firing from service in the police officer through unwarranted disparity is taken without any facts and reflects only the personal opinion of the committee members, as plaintiff assigned duties properly performed without disorders characterized by positive, corresponding to his post. Also – no reason to carry out such certification, and the attestation procedure, according to the plaintiff, conducted with disabilities.
Decision of the Lviv Regional Administrative Court on March 9, 2017 in the administrative case 813/596/17 claim granted in part.
The text of the decision can be found at the following link: http://www.reyestr.court.gov.ua/Review/65249320
Therefore, we see the main reason why the update in positions is non elementary rules and norms of procedure dismissal for reasons -violation procedure of certification or exemption not take into account important circumstances during the appraisal, subjective or biased Certification Commission related to the person.
Also note tezisno on certain imperfections Law of Ukraine “Cleaning the government.”
In the ECHR is several dozen statements about lustration grumbles former officials who expect appropriate consideration.
The main reason for applying these persons is a partial mismatch of law provisions of Article 38 of the Constitution of Ukraine and Article 25 of the International Covenant on Political and Civil Rights of 1996, by which stipulates that every citizen without any discrimination should have access to public service in general conditions.
In practice, the persons using some gaps in the law on cleaning power that were created artificially for a certain period, a committee of Parliament. It was a period for former officials Yanukovyp.
We hope that more effective law, it will be improvements to avoid the practice of various reinstatement is not exactly honest people. Recent changes to the law were commissioning 21.12.2016 year.
So back to the main position of the Labor Code, which regulates the renovation work not related to the delegation and the public function.
According to Art. 235 of the Labor Code – in the case of dismissal without legal grounds or unlawful transfer to another job, including at reports of violations of the Law of Ukraine “On Prevention of Corruption” by another person, the employee must be renewed on previous work by the body that considers labor dispute.
When deciding on the reinstatement body that examines the labor dispute at the same time decides on employee benefits average earnings during his forced absence, but not more than one year. If the application for reinstatement has been more than one year, through no fault of the employee, the body considering the labor dispute, shall decide on the payment of average earnings for the whole period of forced absence.
Also, under certain provisions of the given article, it is important to provide the following important details:
Let procedural disputes related to dismissal from work. The specific dispute within the meaning of jurisdictions between the cases considered in courts of general and administrative jurisdictions.
This is primarily dependent on the subjective part of legal disputes.
In some cases, it disputes over the decision of citizens to public service, its passage, dismissal from public service under paragraphs 2. p. 2, Art. 217 “The jurisdiction of administrative courts to resolve administrative cases.” That is, in this case, decided by public law dispute.
What is public service? Let’s take a closer look at this issue and it will give an idea of the difference between – normal labor relations, with those with signs of delegating state functions.
Thus, according to Art. 1 of the Law of Ukraine “On civil service”, the civil service – a public, professional, politically impartial activities with practical tasks and functions of the state.
So under Article 232 of the Labor Code – labor disputes, subject to immediate review in the district, borough, town or city district court. Local courts of general jurisdiction for labor disputes are considered statements:
1) employees of enterprises, institutions and organizations that commission on labor disputes are not elected;
2) employees reinstatement regardless of the grounds termination, modification date and the wording of the reasons for dismissal, pay during his forced absence, or perform lower paid job, except for employees of disputes referred to in p. 3. 221 and Art. 222 of the Code;
Procedural specifics of civil proceedings (labor disputes) and Administrative Affairs (reinstatement in the public service) and the similarity of issues under Part during the trial.
As to the procedural aspects of the Code of Administrative Procedure of Ukraine (hereinafter – CSSA) in cases related to the passage of controversial issues, dismissal and reinstatement in the public service.
According to p. 1, Art. CAS 122, “Things to adopt citizens to public service, its passage, the release of the public service are considered and resolved within a reasonable time, but not more than twenty days after the opening of the proceedings.”
It should pay attention to the aspect that the court decision. According PM 2, 3 p. 1 of Article 256 CSSA – “..Nehayno executed court decisions on:
2) the award of wages, salaries other public relations services – in the amount of penalty for each month;
3) reinstatement in the relationship of public service … “.
As to the procedural aspects of the Civil Procedural Code of Ukraine, in cases relating to reinstatement and payment of funds by the forced absence.
Accordingly, p. 1 of Article 110 of the CPC of Ukraine “claims arising from the employment relationship may also be filed by registered residence or stay of the claimant.”.
Accordingly, p. 2 of Article 120 of the CPC of Ukraine, submitting a copy of the claim and the documents attached to it: “… The rules of this article for the submission of copies does not apply to claims arising from the employment relationship …”.
Additionally, according to claim. 1 h. 1 tbsp. 5 of the Law of Ukraine “On Court Fee”:
from paying court fees in the proceedings in all courts dismissed – the plaintiffs for the recovery of wages and reinstatement.
As for the timing of consideration in Article 157 of the Civil Procedure Code of Ukraine, stated that the court considers the case within a reasonable time but not more than two months after opening proceedings and proceedings for reinstatement – one month.
Also to be immediately enforceable decision, order n. 1 and 4 hours. 1 Article 367 of the Civil Procedure Code of Ukraine – Court allows immediate implementation of decisions on reinstatement of illegally dismissed or transferred to another job worker.
So we see that the legislature has provided adequate procedural evaluation and the importance of respect, in particular, accelerated proceedings related to renovation work or public service, as well as the promptness of execution.
Regarding the implementation of the decision of the court in practice, won after the trial.
Therefore, you must submit an application for the issuance of the writ, get it in court and go to the state executive service or private artist. Also, when filing the writ for execution should pay the down payment, in accordance with Article 26 of the Law of Ukraine “On Enforcement Proceedings”. Receipt submitted in accordance with the application for the enforcement proceedings.
Please note that, since the decision on reinstatement (and also – for the payment of wages during his forced absence) to be executed immediately at the employer no prospects delaying the case on appeal. Therefore, the writ may be brought to fulfillment in the day a decision on reinstatement. State Executive is obliged to institute enforcement proceedings no later than the day after receipt.
Business owners should not delay the execution of the judgment, as may be provided for fines and penalties according to the Law “On Enforcement Proceedings”, also criminal liability in cases determined by law.
That is, if you believe that your rights and interests infringed upon release – we will be happy to provide adequate legal services to the professional level, to violate your rights.