Employer must offer all vacant positions to employee who requested reduction of two-month notice period for impending dismissal - SC GC

Submission by an employee of a request to reduce the two-month notice period for the impending dismissal may be the basis for reducing this period, but it does not relieve the employer of the obligation to comply with the guarantees for dismissing an employee under clause 1 of part 1 of Article 40 of the Labour Code of Ukraine (changes in the organisation of production and work), in particular - from the date of the notice of dismissal to the date of termination of the employment contract, to offer such an employee all vacant positions that meet his qualifications.

This conclusion was reached by the Grand Chamber of the Supreme Court in a case concerning a claim for reinstatement and recovery of average earnings for the period of forced absence.

The plaintiff in the case worked as a senior legal adviser at the district branch of the Regional Employment Centre, which was liquidated as part of the optimisation of the State Employment Service system.

The employer notified the plaintiff within the statutory two-month period of the changes in the organisation of work and his possible subsequent dismissal, but only made an offer to take up a vacant post at another location, which the plaintiff rejected on the grounds of the need to change his place of residence.

The plaintiff requested a shorter notice period and the employer, without offering any other vacancy, granted the request and dismissed the plaintiff within the period specified in the request. After the dismissal, the plaintiff learned that similar positions of legal advisor were available at a newly established branch of the Regional Employment Centre (in his place of residence), which the employer did not offer him.

The court of first instance dismissed the claim. The court of appeal upheld this decision.

In upholding the plaintiff's appeal to cassation and remanding the case to the court of first instance, the Grand Chamber of the Supreme Court found that the court of first instance had erroneously assumed that the defendant employer was not obliged to employ the plaintiff in connection with the plaintiff's request to reduce the notice period and had failed to prove that the defendant had fulfilled the obligation to employ the employee under part 2 of Article 40, part 3 of Article 49-2 of the Labour Code of Ukraine.

As noted by the Grand Chamber of the Supreme Court, upon the employee's request, the employer may reduce the notice period for his impending dismissal (two months) and such an employee may be dismissed in accordance with clause 1, part 1, Article 40 of the Labour Code of Ukraine. At the same time, shortening the notice period does not affect the employee's guarantees of dismissal due to the change in work organisation and does not release the employer from the obligation to employ the employee.

Therefore, the employer is obliged to offer such an employee all available vacant positions corresponding to his or her qualifications that existed from the moment the employee was notified of the impending dismissal until the day the employment agreement was terminated, subject to the provisions of Article 42 of the Labour Code of Ukraine on the preferential right to remain in employment when employees are dismissed due to changes in the organisation of production and work.

An employee's refusal to accept the vacancies offered (if any) or the absence of suitable vacancies indicates the objective impossibility of continuing the employment relationship and is a prerequisite for dismissing such an employee within the specified period in accordance with clause 1, part 1, Article 40 of the Labour Code of Ukraine.

Resolution of the Grand Chamber of the Supreme Court of 28 August 2024 in case No. 641/1334/23 (proceedings No. 14-54цс24) - https://reyestr.court.gov.ua/Review/121571345.

This and other legal opinions of the Supreme Court are available in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.