Resumption of work with compensation for forced absence
As a rule, legal advice is needed clients when they have already been dismissed from work and they want to resume work with payment of forced absence, but there are also those who apply, when the negative processes from the owner or its authorized body are just beginning to occur, so depending on the time of treatment, there may be different advice and different legal positions.
Labor disputes about resumption of work: procedure for resolving
- Commissions on labor disputes (CLD);
- District, district in the city or city courts.
Such procedure for consideration of labor disputes arising between the employee and the owner or authorized body shall be applied regardless of the form of the employment contract.
According to Article 232 of the Labor Code of Ukraine, labor disputes are considered directly in the district, city or city district courts on applications:
- Employees of enterprises, institutions, organizations, where the CLD is not elected;
- Employees on resumption of work regardless of the grounds for termination of the employment contract, changing the date and wording of the reason for dismissal, payment for the time of forced absence or performing lower-paid work, except for disputes of employees specified in paragraph three of Article 221 and Article 222 of this Code.
Thus, labor disputes about reinstatement at work are considered directly in the courts, which allegedly immediately gives the right to apply for protection of the violated labor rights in court, however, the requirement of paragraph 1 of part 1 of article 231 of the Labor Code of Ukraine is alarming. But the requirement of para.1 of Article 231 of Labor Code of Ukraine, which states that the district, city or city district courts consider labor disputes on petition of an employee or owner or his authorized body, if they do not agree with the decision of the CLD of the enterprise, institution, organization (department), therefore for insurance, I advise to apply to the CLD first and get the CLD decision in between, within the terms of the reduced limitation period, all the same.
Resumption of employment by court order
You should only go to court when the owner or his authorized body has really violated the requirements of labor law. This is my position. Otherwise, why waste effort and money when there is no prospect?
A set of conditions is analyzed, which can become a pledge of a decision in favor of the client:
- Is the reason for dismissal lawful? (as a rule, the requirements of Articles 40-42 of the Labor Code of Ukraine),
- Have the dismissal procedures been followed? (as a rule, the requirements of Article 43 of the Labor Code of Ukraine in terms of obtaining prior consent of the elected body of the primary trade union organization, trade union representative),
- Have the deadlines for appealing to the court not been exhausted yet?
According to Article 233 of the Labor Code of Ukraine:
The employee may apply for the resolution of a labor dispute directly to the district, city district or city court within three months from the date when he learned or should have learned of the violation of his right, and in cases of dismissal – within one month from the date of delivery of a copy of the order for dismissal or from the date of delivery of the labor book.
In case of violation of the legislation on payment of wages, the employee has the right to apply to the court for withholding the wages due to him without limitation by any deadline.
The owner or its authorized body may apply to the court for recovery of material damage caused to the enterprise, institution, organization from the employee, a period of one year from the date of discovery of the damage caused by the employee.
According to Article 238 of the Labor Code of Ukraine:
When considering labor disputes in matters of money claims, in addition to claims for the payment of the employee’s average earnings for the period of forced absence or the difference in earnings for the period of performing lower-paid work (Article 235), the body considering the dispute has the right to rule on the payment of the amounts due to the employee without limitation by any deadline.
The question of time limits for appealing to the court is very important.
The claim for reinstatement at work and recovery of average earnings for the period of forced absence – this is usually the first step with this begins the case for reinstatement at work in case of illegal dismissal, but it is better to do this step with a lawyer of labor disputes in Kyiv.
With the cost of my legal services you can read in the section prices.
How forced absence is paid
According to the last part of Article 235 of the Labor Code of Ukraine, the decision on reinstatement of the illegally dismissed or transferred to another job employee, taken by the body considering the labor dispute, is subject to immediate execution.
Consequently, on the day the decision of the court of the first instance is made, a letter of execution may be executed immediately by a state or private enforcement officer.
According to Part 1 of Art. 239 of the Labor Code of Ukraine, in the case of cancellation of the enforced decisions to recover wages or other payments arising from labor relations, the reversal of execution is allowed only if the reversed decision was based on the false statements or false documents submitted by the plaintiff.
Consequently, if the plaintiff did not report false information or submit false documents, there will be no reversal of execution (return to the employer of the average earnings paid for the period of forced absence).
