Safety or work? TOP-10 labor disputes caused by the war

This is evidenced by materials from the court register, in which plaintiffs among employees decided to fight for their labour rights because employers showed a lack of understanding of their circumstances," says Vitaly Dudin, a candidate of law and activist of the NGO "Social Movement".

In 2022, the number of appeals by citizens to the courts of first instance for the protection of labor rights has almost halved compared to the previous year — from 17,000 to 9,000. And this is not due to a decrease in the number of violations of rights, but to the fact that it has become more difficult to achieve justice due to legislative changes and restrictions on access to justice.

Expert has prepared for Socportal examples of ten court judgements about working in war conditions. In some cases, the workers won, and in some cases - the employers.

In the confrontation between the employee's right to work remotely in safe conditions and the enterprise's need to fulfil socially necessary functions, the latter often wins, says the expert.

According to him, the protective orientation of the Labour Code of Ukraine has been significantly undermined due to legislative changes designed to respond to common situations during the war promptly.

The changes made to labour legislation have almost always been to the advantage of employers. In particular, the requirement to coordinate the dismissal of a trade union member with the elected body of the trade union was temporarily abolished, the procedure for changing essential working conditions was simplified (no need to give a 2-month notice) and new grounds for dismissal were introduced (for example, failure of an employee to notify the employer of the reasons for his absence for more than 4 months). There is also a possibility to suspend an employment contract on the basis of Article 13 of the Law of Ukraine "On the Organization of Labour Relations under Martial Law" No. 2136 (Law No. 2136). Due to the lack of control by the state, many employers could not resist the temptation to use these innovations for their own benefit. Radical deregulation acts were adopted under the pretext of preventing the collapse of the economy, however, the lion's share of them remains valid even now, when the situation has largely stabilised, says Vitalii Dudin.

He emphasises that workers often appealed to the court because they saw their rights violated in the issuance of dismissal orders, deprivation of their earnings or relocation of production. And the dynamics of judicial practice show that the further one goes, the more critically the courts evaluate the plaintiffs' arguments about safety problems.

If at the beginning of the invasion the courts agreed that the very fact of declaring martial law in Ukraine could serve as a justification for absence from work, then later on the courts demanded a stronger justification of the real danger to the life and health of workers, says the expert.

According to the lawyer, the most attention should be paid to cases of dismissal for absenteeism.

The employers' opinion is clear: in conditions of financial shortage, they do not want to pay those employees who do not give enough to their work. Consequently, absence from the office was seen as a manifestation of disloyalty," says Vitaly Dudin.

He notes that although at the beginning of martial law, the Ministry of Economy recommended not to dismiss for absence from work in war conditions, market realities dictate other solutions. If workers were dismissed for absenteeism, it was difficult for them to prove the validity of the reasons for absence.

For example, in July of this year, the Darnytsia District Court of Kyiv, in case No. 753/15245/22, refused to reinstate the director of the Territorial Center for Social Services (provision of social services) of the Darnytsia district. Since the beginning of the war, the woman had been in France, where she could work remotely, but on March 21, 2022, she was fired for absenteeism. In dismissing the claim, the court considered the woman to have ceased to perform her official duties as director and left Ukraine, and she had no right to work remotely.

On March 1, 2022, she, as a director, established a remote work regime for herself, but the court considered that she did not have the authority to do so. Article 60-2 of the Labor Code provides for the possibility of issuing an order to introduce remote work only with the permission of the employer, and, as emphasized in the court decision, the relevant district state administration should be considered as such. Additionally, the plaintiff motivated her departure abroad by fear for her life; namely, she appealed to the fact that rocket fragments fell near her house in the first days of the invasion. This, in her opinion, was evidence of a valid reason for her absence from work. However, the court found this argument unconvincing, as the address of the fall of the dangerous fragment was allegedly geographically remote from the plaintiff's place of residence. The case is currently pending appeal.

At the same time, there is a court decision in favour of the workers in similar disputes.

In August 2022, in case No. 242/1050/22, the Selidivsky City Court of the Donetsk region reinstated a woman who worked as a commercial director at a local enrichment plant. The employer dismissed her on 22 April 2022 for absenteeism, but the court found that the conduct of hostilities near the plaintiff's place of residence objectively prevented her from going to work, and screenshots of reports and correspondence confirmed the fact that she was working remotely.

A similar decision was made in October 2022 by the Volyn Court of Appeal in case No. 166/282/22. According to the story, a nurse of the KNP Ratnovska Central District Hospital, who had taken a holiday and was in Poland with her children, was dismissed for absenteeism. It was recognised that the dismissal for absenteeism was groundless at the time when the employee applied for leave as a mother of two children (the employer unmotivatedly rejected the application). the woman's fears, as a resident of a district bordering the Republic of Belarus, for the life and health of her children. The plaintiff's arguments about evacuating her children from the beginning of the full-scale invasion of the district were recognised as convincing.

In June this year, the Supreme Court in case No. 577/1447/22 confirmed the legality of decisions on the resumption of work of a man who had been dismissed from the position of engineer-technologist at the Konotop Aircraft Repair Plant "Aviacom" in Sumy region. The company called him back from downtime on 20 April 2022 and dismissed him the next day due to non-appearance, although the plaintiff was in Germany. The court recognised that the employee could not arrive promptly from abroad when summoned in one day, so the dismissal for absenteeism was unlawful. The employer had improperly notified the employee of the end of the downtime and ignored his request to postpone going to work.

Another similar example - in August this year, the Frunzensky District Court of Kharkiv, in case No. 645/2548/23, resumed employing the Kharkiv Regional State Laboratory. The employer believed that the woman was unjustifiably absent from work on 12 May 2023, but she was on leave as an internally displaced person. The Court found that the claimant, as an IDP, was entitled to leave without pay for up to 90 days. She had applied to her employer and had not received a specific refusal. The employer insisted that it considered the certificate of IDP status invalid.

In the conditions of the war, employers were able to suspend labour relations - that is, not to dismiss an employee, but also not to pay his salary and not to pay insurance contributions for him. Some workers who left their settlements tried to appeal against such a decision.

Chernihiv Court of Appeal, in August this year, made a decision in case No. 740/1926/22 concerning the head of the director of educational work of Nizhyn general education school of I-III stages No. 1. The woman had been in Germany for more than a year and wanted to appeal against the order to suspend her labour contract because, according to her, she was able to perform her duties remotely. The court did not accept as correct the arguments that the city of Nizhyn was at risk of rocket attacks and that the plaintiff could not come to work because of the destruction of the railway and the lack of shelter at the school. However, of crucial importance was the fact that the school lacked electronic document management, which precluded the possibility of performing duties remotely.

Another similar decision was made in June this year by the Rivne City Court in case No. 569/12425/22. There, the manager of the shop of CP "Rovnekniga" first suspended her labour contract, and three months later, she was dismissed under paragraph 8-3 of Article 36 of the Labour Code (absence of an employee from work and information about the reasons for such absence for more than four consecutive months). Therefore, the woman challenged the order on suspension of the labour contract dated 14.04.2022 and the order on dismissal dated 21.07.2022. The employee with 40 years of experience at this enterprise considered that there were no conditions for suspension of the labour contract and insisted that the employer was aware of her whereabouts in the Republic of Lithuania (she was in touch) and that she was suspended for part of the 4-month period.

According to the court, the labour contract was lawfully suspended because the plaintiff was absent from February to July 2022 in Ukraine. At the same time, the court found to correct the arguments that there were no grounds for dismissal due to absence from work for more than four months: since April 2022, the labour contract with the woman was suspended, so this period of time could not be attributed to the 4-month period of absence. Moreover, the grounds for dismissal provided for in Article 36(8-3) of the CLLT were introduced only on 19.07.2022, so the 4-month period could be attributed only from that date.

In some cases, employees attempting to appeal their dismissal failed to notify their employers in a timely manner as to where they were and whether they could return to work. Or they did so incorrectly.

In July of this year, the Druzhkivsky City Court of Donetsk region, in case No. 229/511/23, refused to rehire a man who was dismissed from his position as head of department at the Bakhmut College of Transport Infrastructure. The institution was relocated to the city of Dnipro. The employee was dismissed in December 2022 based on the same Article 36, paragraph 8-3 of the LC. The employer considered that the employee had been absent for more than 11 months, of which five months were after the relevant ground of dismissal had arisen under the LC. The claimant argued that after his departure from Bakhmut and his registration as an IDP, as evidenced by a certificate dated 12.09.2022, he had informed the employer of this fact by sending a copy of the said certificate to the personnel department. However, the Court found that the plaintiff, during the period of absence, never personally notified the employer of the reasons for his absence and did not communicate. The plaintiff's certificate was provided by his wife via Viber messenger using her own telephone number.

A similar decision was made in June this year by the Kyiv District Court of Odesa in case No. 947/15490/22. He refused to reinstate a man who was dismissed for absenteeism from the position of shop manager of “Okhtyrka Combine of Bread Products” in Sumy region. The plaintiff left at the beginning of the full-scale invasion to Odesa, where his family resides. According to official reports, on 8 April 2022, the Sumy region was completely liberated from the Russian occupiers, and in May, the enterprise resumed operations. Therefore, the court noted that the claimant had not provided any substantiated explanations showing the validity of the reasons for his failure to report to work. The employer proved that it had tried through messengers to obtain the employee's explanation for the absence, but was unsuccessful.

If, in previous cases, workers were dismissed for refusing to return to Ukraine or a region with military operations, there are cases where the opposite has happened because of the refusal to leave the homeland.

In August, a very interesting decision was made by the Kropyvnitsky Court of Appeal in case No. 404/3054/22. The dismissal was contested by a former nurse of the KNP, “Kirovograd Regional Specialised Children's Home of a new type of Kirovograd Regional Council”. She refused to move to Austria, where the children of the institution were evacuated in March 2022. In April, the management informed her of the need to move abroad and that in case of refusal, she would be dismissed under paragraph 6 of Article 36 of the Labour Code.

The plaintiff's position was based on the fact that since 24 February 2022, there have been no hostilities or other circumstances that threaten or may threaten the life or normal living conditions of people on the territory of the Kirovograd region. Therefore, the employees could leave voluntarily. The court found that since the departure of all the pupils to Austria, the main activity of the institution was carried out abroad. Since the employer had the right to change the essential working conditions, and the employee refused to continue working after their change, the dismissal was considered legal.

However, such cases, when people flatly refuse to leave their homeland, are rather an exception. The more pressing problem for the country remains the question of how to bring 6 million citizens back home. And if, for a certain part of refugees, the preservation of labour relations at home was an incentive to return, recent legal trends may change this.

It is possible that some of the analyzed decisions will be changed by higher courts. But already now certain conclusions are suggested: the courts in general will not unquestionably side with the workers and treat them leniently because of the trials that have fallen to their lot. In labor disputes, as in any confrontation, the result depends not on moral correctness, but on the preparation of the parties and the rightly chosen means.