Alexey Paliy,
attorney, managing partner
Primary Advisors LLC

Main article
New realities: telecommuting

Competent Thought
Nuances of reorganization, liquidation, merger, separation and spin-off of an enterprise
Arrangement of part-time employees
The world online, or peculiarities of distance work regulation

Judicial Perspective
Topical positions of the Supreme Court in labor disputes
Labor relations: recent court practice

Relevant
E-Labor
Vaccination at the enterprise – the right or obligation of employees

Labor disputes are one of the most common categories of disputes that arise in
enterprises, so it is important to understand the Supreme Court’s current approaches to
to resolve related legal issues. In this regard, I propose to
examine some of the Supreme Court’s positions from 2021.

  1. In Case No. 682/2782/18, the Supreme Court concluded regarding the right of a pregnant
    Woman’s right to employment and payment of wages upon release from the
    enterprise. This obligation is determined by Section 184 of the Labor Code
    According to which, the release of pregnant women and women who have children under the age of three
    (part six of article 179 of the Labour Code), single mothers in the case of
    If there is a child under the age of fourteen or a child with a disability from
    initiative of the owner or a body authorized by him or her is not allowed, except
    cases of complete liquidation of an enterprise, institution, organization, when
    release with compulsory employment is allowed. For the period of
    employment, they are kept their average salary, but not
    more than three months from the date of termination of the fixed-term employment contract. The court
    noted that if the employee was released, the company was required to
    Employment and pay the average wage for three
    The Court noted that if she was released, the company should have employed her and paid her her average wage within three months. Since the company failed to fulfill this obligation, the employee was subsequently
    was entitled to sue for an obligation from the employment and recovery of average earnings for three months
    (ruling of the Supreme Court of 03.02.2021 in case No. 682/2782/18).
  2. In Case No. 758/2641/17, the Supreme Court rejected the appellate court’s
    instance that the plaintiff’s temporary disability slip was
    issued in violation of the requirements of the Instruction on the procedure for issuing documents that
    The temporary disability certificate was issued in violation of the requirements of the Instruction on the procedure for
    issuing documents certifying the temporary disability of citizens, approved by the order
    of the Ministry of Health of Ukraine from 13.11.2001 No. 455
    , recognizing
    the conclusions of the trial court on the satisfaction of the claim are justified. The court
    of the first instance came out from the fact that the certificate of inability to work was not returned to the
    medical facility for proper processing, neither the defendant nor the
    Social Security from the temporary loss of earning capacity claim
    its unlawfulness, the plaintiff received from the Social Security Fund
    Social Security temporary disability assistance, which was not
    claimed from plaintiff as having been unreasonably received, therefore, the trial court
    came to the reasonable conclusion that plaintiff was on
    sick leave (decision of the Supreme Court of 10.02.2021 in case No. 758/2641/17).
  3. In Case No. 758/10554/16-z the Supreme Court rejected the arguments of the appeal
    to the Cabinet of Ministers of Ukraine that the State of Ukraine is not responsible for
    obligations of banks, including those established by the state, since
    liability of the State of Ukraine by analogy is provided by law, viz.
    Article 240-1 of the Labor Code, as the responsibility of the founder of the enterprise, which
    liquidated, to the employee. The provision of the above norm, as well as
    the formulated approaches of the ECtHR at the time of solving the issue of the liability
    of the state for the obligations of state enterprises, give grounds for
    to attract the State of Ukraine as the legal successor (Ruling of the Supreme Court of Ukraine of 24.02.2021).
    dated 24.02.2021 on case No. 758/10554/16-z
    ).
  4. In Case No. 569/9738/20, the Supreme Court considered the appellate court’s conclusions
    regarding the denial of the claim for recognition that the employment relationship had been terminated
    from the date marked by the employee were erroneous, and the decision of the court of first instance
    of the first instance to grant the claim, on the contrary, was justified. In doing so, the Supreme Court
    came out from the fact that Article 38 of the Labor Code obligates the owner to release the employee within the
    the deadline requested by the employee, also in the presence of other valid reasons
    as noted in the first part of Article 38 of the Labor Code. That is, there is no list of such reasons
    exhaustive. In determining the validity of the reasons in this case, the court
    took into account the legal position, which had previously been set out in the decision
    Supreme Court of 11.03.2020 in case No. 459/2618/17
    , according to which
    the reason for the employee’s absence from work can be considered honourable if the attendance
    work was hindered by substantial circumstances which could not be remedied by the
    employee himself. The employee’s refusal to work remotely, which the
    offered to him by the owner, the Supreme Court did not take note, given the
    the absence of a corresponding order from the owner transferring the plaintiff to
    the distant work and the issuance of logistical supplies in connection therewith. 
    Under the provisions of the Labor Code, in the event of termination of an employment contract
    out of employee’s initiative, the employer may release the employee on the day the employer can,
    however, terminate the employment contract on the employee’s initiative on the day of the employee’s submission of his or her application if the employee himself or herself decides that day the date of the dismissal and states a valid reason for the dismissal a good reason for the decision to release the employee (Ruling of the Supreme Court of On 21.04.2021 in case No. 569/9738/20).
  5. According to the Supreme Court ruling of 14.06.2021 in case No. 235/3191/19 the Supreme Court in a unified chamber of the Court of Civil Cassation the Supreme Court, as a member of the Joint Chamber of the Cassation Civil Court, concluded that there are grounds for imposing the employer’s the Supreme Court, as the mother of the deceased in a car accident, held that there were grounds for the employer’s obligation to compensate the claimant workplace accident (traffic accident) of the defendant’s employee, of the inflicted moral damages on the grounds specified in Article 1167 of the Civil Code of Ukraine. Accordingly to part 2 c. 1167 of the Civil Code of Ukraine the moral damage shall be compensated irrespective of fault of state authority, authority of the Autonomous Republic of Crimea local self-government body, a natural or legal person, which caused it: if the harm was caused by an injury, other health damage or the death of a natural person as a result of a source of increased danger. The decision the Supreme Court’s decision takes into account the fact that the employee’s death followed the Supreme Court’s decision takes into account the fact that the employee’s death occurred during the performance of his employment due to the employer’s failure to provide. The decision of the Supreme Court took into account the fact that the death of the employee had occurred in the course of his employment due to the employer’s failure to provide safe working conditions, which had led to the industrial accident and the subsequent death of the plaintiff’s son. At the same time, as the court noted Court, the deceased’s culpable actions could not be the basis for denying the enjoyment his mother’s claim for compensation for the moral injury caused by the death of a person from an accident that occurred at work, because such actions of the deceased shall be taken into account during the determination of the amount of moral damages (decision of the Supreme Court of 14.06.2021 in case No. 235/3191/19).
  6. In considering Case No. 127/26268/18, the Supreme Court found that the decision of the Court of First Instance, the claim of the employer (a U.S. company) against the employee rather. The monetary compensation was pulled in favor of the employer. The trial court’s decision was motivated by the fact that the employee had worked for the decision of the court of first instance was motivated by the fact that the employee had worked for a period of less than one year from the date of employment, and therefore, in accordance with dubparagraph 1 of Paragraph 13 of the employment contract is required to pay for the benefit of thr company monetary compensation. The appellate court’s ruling complaint was left without satisfaction, the absentee decision of the court of first instance – without without change. In accordance with the terms of the employment contract concluded by the parties have agreed that all rights and obligations under this contract shall be governed by the laws of the State of Illinois. The parties agree that any disputes that arise out of or in connection with the contract shall be solely in the Circuit Court of Cook County, Illinois. Pursuant to Order of the Circuit Court of Cook County, Illinois, the court decided: “the petition Defendant to grant in its entirety, the complaint affirmed by affidavit accepted without preserving plaintiff’s right to sue for the same cause of action for the reasons noted in the record. The case is declared to be closed But void”. In view of the foregoing, the Supreme Court considered reasonable conclusion of the appellate court that the dispute should be referred to the courts of The Supreme Court considered reasonable the conclusion of the appellate court that the dispute should be examined by the courts of first instance in Ukraine, since the agreement concluded by the parties on the transfer of the The agreement concluded by the parties to refer the dispute to a court of another State could not be implemented. At the same time assessing the circumstances of the case according to the substantive law norms that To be applied, the Supreme Court noted that the monetary compensation indicated compensation is not a fine within the meaning of Article 549 of the Civil Code of Ukraine, but damages which the employer suffered in connection with early termination of employment contract, with reference to Article 22 of the Civil Code of Ukraine. It is worth remembering in the event that The approach to resolving the issue of worker’s compensation has usually formed on the basis of the principles laid down in the Resolution of the Plenum of Supreme Court of Ukraine of 29.12.92, № 14 “On judicial practice in cases of On Judicial Practice in Cases of Compensation for Damage Caused to Enterprises, Institutions, Organizations their employees”, according to which the court in each case must take measures prescribed by law for a comprehensive, complete and objective Clarification of the circumstances on which, pursuant to articles 130, 135-3 and 137 of the Labour Code The court in each case must take the measures prescribed by law to clarify fully and objectively the circumstances on which, pursuant to articles 130, 135-3, 137 of the Labour Code, the issue of liability depends and on the amount of harm to be compensated. In particular, in the ruling of the SupremeCourt of 15.09.2021 in case No. 205/8516/18 on compensation for damages caused to the enterprise, the Supreme Court applied the following norms of substantive law The Supreme Court applied the following norms of material law and the conclusions of the Plenum of the Supreme Court of Ukraine: art. 1, 9 of the Civil Code of Ukraine, articles. 3, 4, 130, 134, 135-1, 138 of the Labour Code, paragraph 3 of the Resolution of the Plenum of the Supreme Court of Ukraine of paragraph 3 of the Plenum of the Supreme Court of Ukraine in 29.12.92, № 14 “on judicial practice in cases of compensation for damages caused to enterprises, institutions and organizations by their employees”. From the review of the above, the possibility of the practical application of the conclusion of the Supreme.
    From the review of the mentioned above, the practical application of the conclusion of the Supreme Court in case № 127/26268/18 is debatable.

© LLC “Information-analytical center “LIGA”, 2021
© “LIGA LAW” LLC, 2021

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