"The work of an enterprise's human resources department, including preparation of documents regulating labor relations, should be coordinated by legal advisers", — Ekaterina Manoilenko, attorney, head of GOLAW judicial practice, recommends
— What are the current trends in resolving labor disputes?
— The current economic situation sees a rapid increase in the number of labor disputes. The most frequent are disputes on the reemployment of discharged employees and disputes related to the remuneration of labor.
It is obvious that such disputes should be resolved in compliance with balance between the interests of the employee and employer. But, when preparing for judicial examination, the employee should understand that in the majority of cases, the court takes the position of an employee as that of the more exposed one.
— What should employers do to prevent and minimize possible adverse consequences resulting from a labor dispute?
— Clients often take the decision to engage legal advisors only at the stage of judicial proceedings, when the claim has been already filed to the court and the proceedings on the case have been already opened.
The first thing we face when preparing a position in a case is improperly compiled HR records, and there are cases when HR records are not available at all. Unfortunately, it happens quite often. Such mistakes can result not only in the occurrence of the very dispute, but become the basis for delivering a judgment in favor of an employee. In order to avoid such situations, the work of the enterprise's human resources department, including preparation of documents regulating labor relations, should be coordinated by legal advisors. It should help the employer to ensure adequate application of statutory regulations taking into account current judicial practice.
— Employees often abuse their rights. What should the employer do in such cases?
— Indeed, situations when employees in every possible way try to avoid planned discharge are occurring with ever increasing frequency.
In the last year we had cases when a few days after the staff reduction, employees provided the enterprise with temporary disability leave. Many people do not know what to do in such cases, because there is an imperative provision prohibiting discharge at the initiative of the employer when an employee is on vacation or during a period when he/she is on medical leave.
If the employer has no reasonable doubts as to the validity of the provided temporary disability leaves, the change in the discharge date will be the best way out. In our practice there was a case when an employer received the original copy of the temporary disability leave in the course of the judicial proceedings. The employer changed the discharge date for the day following the last day of temporary incapacity. The court, dismissing the claim, pointed out that such grounds for going to the court, as well as discharge during the period of temporary incapacity cannot be accepted by the court as a result of the change in the date of discharge.
— What if the doubts of the employer are reasonable?
— In such situation, we recommend our clients to make a request to the health institution that issued the temporary disability leave and to the Social Insurance Fund on Temporary Disability to carry out corresponding verification. In cases when information on illegality of the issuing of the temporary disability leave is confirmed, the employer should firmly hold his/her grounds.
For example, if an enterprise has reliable data that during the temporary disability leave opening and closing the employee could not have stayed in a health institution, or was not in the territory of Ukraine, it should file an application on offence to the law-enforcement agencies. More than once employees were prosecuted for the use of consciously forged documents, as well as doctors that issued such temporary disability leaves for the forgery of documents.
A reminder that in 2014, the Verkhovna Rada of Ukraine registered a draft law providing for stepping up responsibility for falsified information on illness and aimed at putting an end to the abusive use of temporary disability leaves by employees. Unfortunately, this initiative and other similar initiatives remained draft laws. But even under the current statutory regulation there are levers for countering abuse, it is only necessary to know how to put them into practice.
— How do the courts respond when an employee tries to drag out the dispute in order to increase the amount of compensation and not to restore the infringed right?
— Judicial practice is such that the requirements on the recovery of the average wage for the failure to hand over a service record in a timely manner are subject to satisfaction only if it is the employer's fault. Correspondingly, the absence of fault is the main argument of the employer. For example, insured letter sent on the day of discharge with a list of enclosures, a copy of the discharge order and a request to come and receive the service record or to give consent for its mailing can confirm the absence of fault.
As for the cases of a dispute being dragged out, the courts rarely stop such abuses. In such cases the role of attorney is important, as he/she can draw the attention of the court in a timely manner to the dishonest behavior of the complainant party and to abuse of procedural rights.
— How can other unfair actions by employees be combatted? Perhaps certain provisions should be included in the employment agreement?
— The main thing is not to go too far: it should be borne in mind that terms and conditions of the employment agreement worsening the position of an employee in comparison with those provided for by the Ukrainian legislation should be considered null and void. Sometimes, wishing to play it safe, employers forget about this statutory regulation. Thus, cases when the employment agreement prohibits the employee getting a job at competitors during a certain time after being dismissed, are quite common.
Taking into account the requirements of the law and judicial practice, it can be assumed that in case of bringing the matter to the court, these terms and conditions may be declared invalid. Some employers, trying to protect themselves, conclude civil contracts with key employees stipulating that an employee should not get a job at competitors. Instead, the employer should pay certain compensation in case an employee meets these terms and conditions, otherwise, penalty sanctions can be applied to such an employee. Despite the freedom-of-contract doctrine secured in legislation, such statutory concepts should be treated very carefully.
It is important to remember not only that the agreement should be drawn up in compliance with statutory requirements, but about the possibility of its future execution, as in the case of commercial confidentiality. It is not enough just to provide for non-disclosure of information by an employee in an agreement, but it is also necessary to clearly define the list of such information, specify the methods of disclosure, etc.
— Can we count on any changes in resolving labor disputes in future?
— Definitely, adoption of the Labor Code, announced a long time ago now, would entail changes in the area of labor relations. Both employees and employers set their hopes on new codifying statute. One thing is for sure: the Labor Code of Ukraine, governing labor relations for over 45 years, does not correspond with the current state of development of labor relations.
In addition, labor legislation needs to be adapted to European legislation, and it seems only a matter of time. We can only hope that it will be solved in the near future, as declared by our government.