Salary and bonuses to pay, moral damage to compensate: dismissed employee was defended in court by "Skliarenko, Sydorenko and partners"

What seems to be impeccably registered dismissal proved to be illegal. The court not only reinstated the employee in the position, deciding to pay the salary for forced absence from work, but also ordered to issue an estimated bonuses, as well as compensate for moral damage.

The legal position of the employee formed and represented interests in court by Tetiana Borysenko, a lawyer of Skliarenko, Sydorenko and Partners, under the guidance of a partner of the law firm Andriy Sydorenko.

They tried to get rid of the company's top manager by changing the essential working conditions at the company and transferring employee to the position of an ordinary worker that was obviously wasnt unacceptable. When employee refused from the “offer”, he was fired based on paragraph 6 of Art. 36 of the Labor Code of Ukraine.

“Such a scheme for dismissing inconvenient employees holding senior positions through reorganization in the company is quite common. After all, the implementation of the formal requirements of the Labor Code often allows an employer to legalize the desired, but essentially wrongful decision, - commented the managing partner of the law firm Oleksandr Skliarenko. - However, labor legislation still contains tools for protecting interests and restoring violated rights. And this was once again proved by our experts. ”

According to the documents of the case, changes in the organization of production and labor in the enterprise resulted a change in the essential working conditions for the employees. In this regard, the transfer of employees to positions under the new staffing table was carried out with their prior consent.

“Formally, the results of the changes even increased the staffing level of employees in the company, which the employer used as an additional argument of the correctness of the employee’s dismissal under paragraph 6 of Article 36 of the Labor Code,” explained T. Borysenko. - At the same time, we insisted that the position held by our client was eliminated, and an equivalent position of head in the new staff list was not introduced. However, an increase in the number of employees with a change in the organization of production and labor does not exclude the possibility of a simultaneous reduction of staff. ”

The court agreed that the position held by the employee before leaving the job was actually reduced and decided that the issue of termination of the employment contract between the parties should be decided under paragraph 1 of Article 40 of the Labor Code, with all guarantees, benefits and compensations provided by chapter III Code.

Therefore, the court overturned the relevant order of the employer to terminate the employment contract, ruled that the person was dismissed without legal grounds, and in accordance with Article 235 of the Labor Code of Ukraine, reinstated the employee to his previous job with the payment of average earnings during a forced absenteeism.

“The court rejected the arguments of the defendant about the impossibility of reinstatement of our client due to the absence of this position in the staffing table, because by law, reinstatement of an employee to his previous job (in case of unlawful dismissal) is impossible only if the company is liquidated,” the lawyer of Skliarenko, Sydorenko and partners said.

T. Borysenko also succeeded in convincing the court that the defendant must pay the employee a bonus, since the circumstances that the reasons for its non-payment (the plaintiff’s dismissal from work before the end of the bonus period) disappeared.

Based on the requirements of Art. 23, 1167 of the Central Committee of Ukraine, the court satisfied the requirement of the representatives of the plaintiff to recover moral damages. The court agreed that such damage was actually caused to the employee, based on the fact of unlawful dismissal, the right of dismissal, and taking into account the evidence that was provided.

“Among other things, in accordance with Art. 141 of the Civil Procedural Code of Ukraine by a court decision, employer was obliged to compensate the employee’s expenses for consideration of the case in court, - added A.Sydorenko. “This is certainly always a nice bonus for our Clients.”