REGARDING THE PROCEDURE FOR REINSTATEMENT OF AN EMPLOYEE

Abstract

This publication is devoted to covering the following issues, namely: how an employee is reinstated in the presence (absence) of a court decision and what compensation payments a reinstated employee can expect. The author emphasizes that the current Labor Code of Ukraine does not contain the concept of “reinstatement”, and the Labor Code does not establish the procedure for the enforcement of the relevant decision. Part of the conditions under which a court decision on reinstatement is considered enforceable are set out in Article 63 of the Law of Ukraine “On Enforcement Proceedings”. Labor disputes on reinstatement of an employee, regardless of the grounds for dismissal, are considered directly in court [1, clause 2, part 1, Article 232]. An employee has the right to file an application for resolution of a labor dispute in cases of dismissal with the court within one month from the date of delivery of a copy of the order (instruction) on dismissal [1, part 1, Article 233]. The following conclusions have been drawn: 1) reinstatement in the previous job takes place not from the date of the court’s decision on reinstatement, but from the date of the employee’s dismissal, which, according to this decision, is recognized as invalid (if the employer reinstates the employee in the previous position without a court decision, the reinstatement also takes place from the date of the employee’s dismissal); 2) the execution of the court decision is considered completed from the moment the employee is actually allowed to perform his/her previous duties on the basis of the relevant act of the body that made the illegal decision to dismiss the employee; 3) the issuance and cancellation of orders is exclusively within the competence of the employer, and the court is authorized to verify their legality; 4) when paying the average salary for the period of forced absenteeism, the person is reinstated at work from the date of dismissal, i.e., he/she is considered to have been in an employment relationship all this time; 5) in cases of reinstatement and recovery of the average salary for the period of forced absenteeism, plaintiffs are exempt from paying court fees; 6) the average earnings during the period of forced absenteeism [1, part 2, Article 235] and the average earnings in case of delay in execution of a court decision on reinstatement [1, Article 236] have different legal nature.