Nowadays quite a relevant court cases on the abolition of the order of dismissal, reinstatement and recovery of average earnings. In such cases, plaintiffs are laid-off workers. Quite often, the courts restore the dismissed workers at work not only on the ground that the employer actually violated worker rights and illegally fired, and if the procedure (procedure) was broken uvalneniya etc.
Dismissal of workers takes place in accordance with Art. 40-41KZoT Ukraine. In practice, not enough simply to dismiss an employee, it is important as everything correctly and legally formalize the dismissal.
Take for example the dismissal provided for n. 2 Part 1 of Art. 41KZoT Ukraine. As noted by this provision, the employment contract may be terminated in case the guilty employee actions, which directly serves the financial, trade or cultural values, if these actions give rise to loss of credibility on the part of the owner or his agent. To apply this provision as grounds for dismissal, it is necessary in each case to establish the guilty actions of the employee (violation of notes and hints, orders, etc.), the employee must serve directly funds or value (as a rule, is a contract of full liability). If all of this together gives grounds owner for loss of trust in the employee, he can dismiss it (terminate the employment contract).
It should be noted that it is not a prerequisite for the dismissal of an employee on the basis of paragraph 2 of Section 41 of the Labour Code the employee responsible action, which led to negative consequences for the employer. Often the courts restore the employee to work precisely on the grounds that no negative consequences for the employer not to come, although it was a violation of the employee’s duties. The same position was expressed by the APU in order dated April 20, 2016. Legal Opinion is followed:
The employment contract on the initiative of the owner or his agent may be dissolved in the case of the guilty employee actions, which directly serves the financial, trade or cultural values, if these actions give rise to loss of credibility on the part of the owner or his authorized authority (paragraph 2 of the article 41 of the Labor Code of Ukraine).
Termination of an employment contract under paragraph 2 of Section 41 of the Labor Code of Ukraine is possible under the following conditions: 1) a direct service worker cash, trade or cultural values (reception, storage, transportation, distribution, etc.); 2) guilty action of the employee; 3) loss of confidence to the employee by the owner or his agent.
Legal analysis of the substantive law gives grounds for concluding that it is not intended to attack the employer’s negative effects caused by the presence of the employer or property damage as a prerequisite for the dismissal of an employee; dismissal from the loss of confidence can be justified if the employee directly serving monetary or commodity values (busy with their reception, storage, transport, distribution and TP), committed intentionally or negligently acts which give the owner or authorized grounds for loss of confidence in him (in particular, violation of the rules of operations with material values).
When deciding in the proceedings for reinstatement of workers dismissed on paragraph 2 of the Article 41 of the Labor Code of Ukraine, the question of the plaintiff referring to a circle of employees who directly serve financial and commodity values, the court in each case is to figure out: is performing operations related with the service of values, the substance of the plaintiff’s job duties; is the performance of such acts responsible and accountable nature of the presence of accounting, control the movement and storage of valuables.