The Grand Chamber of the Supreme Court Ruled on the Implementation of the Right to Unpaid Parental Leave

The Grand Chamber of the Supreme Court formulated a conclusion regarding the correct application of the provisions of labor legislation, namely paragraph 4, part 1, Art. 40 of the Labor Code of Ukraine (dismissal of an employee for absenteeism) in conjunction with the provisions of part 1, Art. 181 of this Code (the procedure for granting parental leave), in the context of the obligation for the employee to wait for the employer's order for such leave to be able to use this social guarantee.

A person applied to court with a claim against Amalgama Lux LLC to cancel the order of dismissal from work for absenteeism and to demand reinstatement at work (case No. 487/8206/18). The plaintiff’s claim was based on the fact that, before the end of the parental leave to care for a child under three years of age, she had applied to the employer for unpaid leave for the period specified in the medical certificate, due to the child’s need for home care.

By its decision of 2 May, 2019, the Zavodskyi District Court of Mykolaiv City rejected the claim. By the resolution of the Mykolaiv Appeal Court of 10 July, 2019, the decision of the court of first instance was cancelled and the complaint was sustained.

By its ruling of 11 November, 2020, the Civil Cassation Court within the Supreme Court referred the case No. 487/8206/18 to the Grand Chamber of the Supreme Court. The panel of judges of the Civil Cassation Court within the Supreme Court considers that the provisions of part 6, Art. 179 of the Labor Code of Ukraine on granting a woman unpaid leave if a child needs home care, confirmed by a medical certificate, are imperative for the employer and constitute an obligation for him, not a right.

At the same time, a number of resolutions of the Administrative Cassation Court within the Supreme Court (in cases No. 803/1883/17, No. 1740/2481/18) set out a different legal position: it is indicated that the very fact of filing an application for parental leave without issuing a corresponding order is not a sufficient reason for being absent from work. In this case, the employee's absence from work can be regarded as absenteeism, which is the basis for his dismissal.

The Grand Chamber of the Supreme Court specified the conclusions set out in the above-mentioned resolutions of the Administrative Cassation Court within the Supreme Court, and noted that the right to parental leave without pay was considered to have been exercised as soon as the employee submitted a duly executed application with relevant supporting documents, and therefore it was illegal to dismiss for absenteeism the employee who had duly submitted such an application, that is, had informed the employer of his/her will to obtain parental leave and therefore had not gone to work on the date specified by him/her.

The Grand Chamber of the Supreme Court assumed that part 1, Article 181 of the Labour Code of Ukraine specified the procedure for granting such leave, and not the rights and obligations of the parties to the labour relationship in the process. In order to exercise the right to unpaid leave, an employee must confirm the fact of the child's illness with a medical certificate, draw up his/her will in the appropriate written application and inform the employer of his or her intention.

If this procedure is followed, the employee is considered to have exercised the state-guaranteed right to receive unpaid leave. The registration (the issuance of an employer’s order) of the submitted application for leave is not a legal fact that gives rise to a worker’s entitlement to leave.

The Grand Chamber of the Supreme Court changed the resolution of the appeal court regarding the distribution of court costs, while in the other part it upheld that decision.

The Resolution of the Grand Chamber of the Supreme Court of 8 June, 2021, in case No. 487/8206/18 (proceedings No. 14-164цс20)– https://reyestr.court.gov.ua/Review/98146718.