The CCU, by its decision on the constitutional complaint in case No. 6-r(II)/2019 of 09/04/2019, categorically “forbade” employers to fire their employees who are on vacation or do not work due to temporary disability!
At the same time, the KSU noted that the situation absolutely cannot be influenced by the fact that the labor relations between the employee and the employer are formalized by an employment agreement (contract).
That is, no employee on vacation cannot be dismissed, since this is a violation of his constitutional rights. There is an exception to this rule, and it is strictly specified in legislation.
Dismissal of an employee which is on vacation is possible if the company is completely liquidated!
The reason for the promulgation of the decision of the Constitutional Court was the appeal of a citizen who was dismissed during her stay on vacation, who, by her situation, “put” before the court the issue of compliance with the Constitution with the provisions of part 3 of Art. 40 of the Labor Code of Ukraine.
Specifics and conclusions in the context of the incident
The citizen applied to the KSU with a request to review the compliance of the KU with the provisions of part three of Art. 40 of the Labor Code, which determines that the dismissal of an employee at the initiative of the employer is unacceptable if the employee is on vacation.
“The applicant pointed out in the complaint that the conclusion of the Supreme Court of Ukraine in her case was incorrect! He determined that the above provisions of the Labor Code do not apply to labor legal relations based on an employment contract. Thus, the Supreme Court of Ukraine violated her constitutional rights, since it “artificially worsened” her working conditions, referring her to a certain category of workers”.
CCU investigated the complaint and established the constitutionality of the provisions of part 3 of Art. 40 of the Labor Code, indicating to the courts of all instances that the solution of similar labor disputes should be carried out taking into account the following:
- Part 3 of Art. 40 of the Labor Code “guarantees” employees protection against dismissal initiated by the employer if the employee is temporarily disabled or resting on a well-deserved vacation.
- An employment contract is one of the forms of legalizing “urgent” labor relations, and its essential conditions (validity period, grounds for termination / termination, etc.) are agreed by the parties.
- The fact that the employment relationship is secured by a contract is not a legal reason for the non-application of the provisions of part 3 of Art. 40 Labor Code.
- It is obvious that the dismissal of a “contract worker”, which is on vacation violates his labor rights, as it discriminates against him, which is unacceptable, since labor guarantees are spelled out in the law for everyone.
- It follows from this that, the conditions which worsening the position of the employee in comparison with the current legislation, prescribed when drawing up the contract (employment contract) are invalid, and the dismissal is illegal.
