An employee’s absence from the workplace during a state of emergency does not automatically constitute grounds for the employer to dismiss them for unauthorised absence. In assessing the dispute, the reasons for the absence, the conditions of remote working, the employee’s mobilisation status, and the proper documentation and substantiation of the breach are all relevant. Case law also distinguishes between being abroad and a failure to fulfil one’s employment duties.
Briefly about the main points
- A stay abroad does not, in itself, terminate the employment relationship.
- A remote worker cannot be dismissed simply because they are not in the office.
- In the event of a loss of contact, the post is retained until the reasons have been established.
- Employees who have been called up are guaranteed to retain their jobs and positions.
Staying abroad does not exempt you from your obligations
Martial law does not constitute a valid reason for any absence from work. Similarly, an employee’s departure from Ukraine does not automatically result in the termination of the employment relationship or exemption from their duties.
In disputes concerning dismissal, the court may assess the facts of the particular case. The agreements between the parties, the way in which work is organised, and whether the employment relationship was properly formalised may all be relevant.
Remote working: what the courts take into account
The physical absence from the employer’s premises does not in itself constitute grounds for treating it as unauthorised absence if the employee has been officially transferred to remote working. At the same time, they must carry out their duties, maintain contact with the employer and adhere to the agreed working arrangements.
In its ruling of 6 June 2024 in case No. 367/569/23, the Supreme Court stated that the absence from the workplace of an employee who has been transferred to a remote working arrangement cannot be classified as unauthorised absence without valid reasons merely because they are not physically present on the employer’s premises.
If contact with such an employee is lost, their job and post shall be retained until the reasons for their absence have been established, and the employment relationship shall not be terminated. However, this period is unpaid and does not count towards the length of service entitling the employee to annual leave.
Burden of proof and the obligation to demonstrate that the grounds are not valid
Mobilised employees retain their jobs and positions. In case No. 331/3589/23, the court considered a claim by the first vice-rector of Zaporizhzhia Polytechnic National University, who was relieved of his duties due to a territorial defence volunteer contract, and was subsequently dismissed for absenteeism following the disbandment of the volunteer unit.
The court quashed the dismissal order, reinstated the employee to their post and awarded them their average earnings for the period of forced absence from work. The court concluded that the employer must prove not only the fact of the absence, but also that there were no valid reasons for it.
In another case, an employee voluntarily joined the Armed Forces of Ukraine at the start of the full-scale invasion. His claim was upheld because the employer had failed to substantiate the unauthorised absence with adequate evidence, had not recorded the absence in accordance with the established procedure, and had not ascertained the reasons for it. The decisive factors in such cases are the formalisation of the employment relationship, the established circumstances and the evidence presented by the parties.
