The Supreme Court has determined the conditions under which an employer may dismiss an employee due to the inability to provide him/her with work as a result of hostilities

An employer may dismiss an employee on his own initiative if he is unable to provide him with work which is directly related to the complete destruction of production, organisational and technical conditions, means of production or his property as a result of hostilities. Such destruction or lack of conditions must be a direct result of hostilities. This conclusion was reached by the Civil Cassation Court of the Supreme Court in its judgment of 27 September 2023.

In the case reviewed by the Supreme Court, the plaintiff was dismissed from her job at a children's camp in Odesa on the basis of paragraph 6, part 1, Article 41 of the Labour Code of Ukraine. The court of first instance, whose decision was upheld by the court of appeal, granted the claim for her reinstatement.

The Supreme Court upheld the decisions of the lower courts and reached the following legal conclusions.

An employment agreement may be terminated at the employer's initiative if it is impossible to provide the employee with the work specified in the employment agreement due to the destruction (absence) of production, organisational and technical conditions, means of production or the employer's property as a result of hostilities. In accordance with paragraphs 4 and 6 of part 1 of Article 41 of the Labour Code of Ukraine, an agreement may be terminated if it is impossible to transfer an employee to another job with his or her consent (part 4 of Article 41 of this Code). The procedure for dismissal of an employee, in accordance with paragraph 6 of part 1 of Article 41 of the Labour Code of Ukraine, is set out in part 7 of Article 49-2 of this Code.

In its defence, the defendant cited the impossibility of carrying out activities due to martial law and the temporary presence of military personnel on the coast.

The Supreme Court stated that the imposition of martial law does not automatically mean the destruction (absence) of production, organisational and technical conditions, means of production or property of the employer as a result of hostilities. At the same time, the Court noted that paragraph 6 of part 1 of Article 41 of the Labour Code of Ukraine does not contain conditions under which an employment agreement may be terminated at the initiative of the employer due to unprofitability as a result of the institution's actual non-operation or the employer's inability to ensure the safety of employees, etc.

Since the children's camp is located in a territory where no hostilities are taking place (Odesa), the inability to provide the plaintiff with the work specified in the employment agreement was not due to the lack of production, organisational and technical conditions, means of production or property of the employer as a result of hostilities. The mere imposition of martial law in the country and the circumstances related to the fact that the children's camp is not actually operating are not grounds for termination of an employment agreement at the initiative of the employer in accordance with paragraph 6 of part 1 of Article 41 of the Labour Code of Ukraine.

The Resolution of the Supreme Court of 27 September 2023 in case No. 523/11673/22 (proceedings No. 61-5654св23) - https://reyestr.court.gov.ua/Review/113893643.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.