The reasons for the inability to continue to work under the conditions of the quarantine were assessed by the Supreme Court

In the event of termination of the employment contract, Article 38 of the Labor Code provides for the employer to dismiss the employee within the time period he asks for, if such a desire is due to the inability to continue working. But what are the reasons to consider as valid?

The Civil Court of Cassation of the Supreme Court, in its ruling of 04/21/2021 in case No. 569/9738/20, recalled that the list of valid reasons for the impossibility to continue working as defined in the code is not exhaustive. Their assessment should be carried out on a case-by-case basis.

The employee filed an application for dismissal of his own free will from May 5, 2020 due to health conditions on the basis of Part 1 of Art. 38 Labor Code. The employer insisted that he worked for two weeks, since he did not provide evidence confirming the validity of the reasons for dismissal from the date he had set. Since agreement on this issue could not be reached, on July 31, the employee was fired for absenteeism in accordance with paragraph 4 of Art. 40 Labor Code.

The man filed a lawsuit in court for the recognition of labor relations terminated from May 5, 2020 on the basis of Part 1 of Art. 38 Labor Code. After weighing the circumstances of the case, the court satisfied these requirements, taking into account the fact that the letter of resignation was due to the inability to continue working (at that time quarantine was declared and restrictive measures were introduced in this regard).

But the appellate court overturned the decision of the first instance court on the grounds that the plaintiff did not provide documents confirming the impossibility of performing labor duties. At the same time, the plaintiff was offered to work remotely, but he refused.

When reviewing the case on the cassation appeal, the Supreme Court assessed the validity of the reasons differently.

Thus, the high judges took into account the certificates of incapacity for work, which testified that the plaintiff was repeatedly ill before applying for a letter of resignation. In a memo, he drew attention to the lack of heating in the office, the low temperature, which negatively affected his health, and asked to provide heating of the workplace.

The man also explained his absence from work by the cessation of transport links between his place of residence and work due to the introduction of quarantine. And although he asked to provide transportation to his place of work and home, this request was ignored.

With regard to the refusal of the offer to work remotely, the Supreme Court indicated that the Court of Appeal ignored the fact that there was no order to transfer the plaintiff to remote work and to issue material and technical assets in connection with this.

The totality of these circumstances, according to the Supreme Court, testified to the validity of the reasons for dismissal under Part 1 of Art. 38 of the Labor Code of Ukraine at the time requested by the employee.

Recall, according to Art. 38 of the Labor Code, an employee has the right to terminate an employment contract concluded for an indefinite period, notifying the owner or an authorized body about this in writing two weeks in advance. In the case when an employee's application for dismissal from work of his own free will is due to the inability to continue work (moving to a new place of residence; transfer of a husband or wife to work in another region; admission to an educational institution; impossibility of living in a given region, confirmed by a medical certificate; pregnancy , caring for a child until he reaches the age of fourteen or a child with a disability, caring for a sick family member in accordance with a medical report or a person with a group I disability; retirement; hiring by competition, as well as for other valid reasons), owner or the body authorized by him must terminate the employment contract within the time period requested by the employee.