Legal Department
The lawyers of the NGO "Community Development"(“Rozvytok Hromady”) provide free legal assistance
Members of the Legal Department of the NGO are helping the residents to defend their legal rights.
In Lviv there is a public reception, where qualified lawyers provide legal assistance. Besides, specialists of the Legal Department provide assistance for residents over the phone. Recently, the lawyers submitted the following questions:
I was fired from a post, stating the reason as the liquidation of the company, however, was eliminated only a separate branch and not the enterprise as a whole. Was this dismissal legal? (Liliya Volodymyrivna)
In accordance with paragraph 1 of part 1 of article 40 of the Labor code of Ukraine, an employment contract concluded for an indefinite term and fixed-term employment contract before the expiry of the validity period may be terminated by the owner or its authorized body in case of changes in the organization of production and labour, including, liquidation, reorganization, bankruptcy or conversion of the enterprise, institution, organization, reduction of number or staff of workers.
From the contents of the specified norm is seen that it provides for several independent grounds for termination at the initiative of the owner of an employment contract with the employee, as liquidation; reorganization; bankruptcy; restructuring of an enterprise, institution, organization; staff reduction.
Used in this norm concepts of “liquidation” and “reorganization”, “conversion”, “bankruptcy”, “reduction of number or staff of workers” - related to enterprises, institutions, organizations as legal entities, and not their structural subdivisions.
The definition of a legal person, the concept and procedure for the liquidation or reorganization of a legal entity are contained in articles 80, 104 - 111 of the Civil Code of Ukraine, articles 62-66, 79-92 The Economic Code of Ukraine, articles 1-22 of the Law of Ukraine “On business associations”.
According to these regulations the company determines its organizational structure, sets the number of employees and staffing. An entity may consist of production or functional structural units (industries, offices, shops, offices, bureaus, services, and so on) and to establish branches, representative offices, branches and other separate units.
Branches and representative offices and other structural subdivisions of enterprises, institutions, organizations do not have the status of legal entities and shall act on the basis of these provisions, approved by the company (article 95 of the Civil Code of Ukraine, part 4 of article 64 of The Economic Code of Ukraine).
Consequently, the basis for termination of the employee's employment agreement in connection with the liquidation of enterprises, institutions and organizations in accordance with paragraph 1 of part 1 of article 40 of the Labor Code of Ukraine may be the liquidation or reorganization of the enterprise, institution or organization as a legal entity.
According to part 2 of article 104 of the Civil Code of Ukraine, legal, is such that stopped, from the date of Deposit to the single state register of record about termination.
The elimination of the structural units of a legal entity with the creating or without creating another structural unit is not a liquidation or reorganization of a legal entity, but simply an indication of change in the internal (organizational) structure of the legal entity. Unlike liquidation or reorganization of a legal entity, that fact may be the ground for dismissal of employees of the structural unit in accordance with paragraph 1 of part 1 of article 40 of the Labor Code of Ukraine only on grounds of reduction of number or staff of workers in connection with such changes subject to the owner of the requirements of part 2 of article 40, article 42, 43, 492 of Labor Code of Ukraine.
Having established that the fact that the internal reorganization of the legal entity (by implementing changes in the organizational structure of the enterprise), one should come to the correct conclusion about the illegality of dismissal of the worker of the structural division of the enterprise on the basis of paragraph 1 of part 1 of article 40 of the Labour Code of Ukraine in connection with the liquidation of the division when justified by the owner of the fact of reduction of number or staff of employees in connection with such changes in the structure of the company and compliance by the owner of the requirements of part 3, article 36, part 2, article 40, article 42, 43, 492of Labor Code of Ukraine on the dismissal of an employee.
May the employer, after the dismissal, send the labor book to the employee by post without his consent? (Liliya Volodymyrivna)
The questions connected with order of service records, their storage, manufacturing, logistics and accounting are governed by the decree of the Cabinet of Ministers of Ukraine "On employment records of employees" from April 27, 1993, the Questions regarding creation of work books, storage, manufacturing, logistics and accounting, No. 301, Instruction No. 58 and other legislative acts.
So, according to paragraph 4.1 of the Instruction No. 58, the owner or its authorized body (hereinafter the employer) must give the employee his employment history in day of dismissal with amended the entry of dismissal.
In accordance with paragraph 4.2 Instruction No. 58, if the employee is absent from work on the day of dismissal, the employer in this day informe the employee about the need to obtain a labor card.
Sending the work book by postl with delivery on the specified address is allowed only with the written consent of the employee.
Documentation on accounting work books is in the Book of records of the movement of labor books and inserts ", approved by order from 11.08.93, No. 180 the Ministry of Statistics of Ukraine. The book is kept by the officer responsible for recruitment and promotion in the organization. It recorded all workbooks that received from employees in employment, labor books and inserts, issued for the first time.
At dismissal, the employment record book is issued to the employee under the signature in “the Book of records of the movement of labor books and inserts”.
However, this registration form does not allow to capture the process of administration of the work book by the post with the employee's consent. In this case, the column 12 may be provided on either the date of dispatch of the work book by the post, or the date of receipt by post by the employee (according to the receipt). In column 13 are given the explanation, that the work-book is sent to the employee by post, and specifies details of the statements of the employee requesting the expulsion of the work book by the post. It is also possible the preparation of an Annex to the book of labor records in the form of a list of employees for whom employment records in accordance with the law were sent by post, and in columns 12 - 13 you can give a link to this list.
If written consent to send the work book by the post the employer has not received, one should be guided by the provisions of clause 6.2 Instruction No. 58, according to which employment records and their duplicates, not obtained by employees upon dismissal, stored for two years in the personnel Department of the organization separate from other employment records, comprising at work.
After this period, unclaimed employment records (duplicates) are stored in the archive of the company for 50 years, and by the end of this period they can be destroyed in the prescribed manner.
Will my dismissal influence on the arrangement of a disability pension? (Liliya Volodymyrivna)
Disability pension due to general disease shall be appointed with such seniority at time of disability:
Work experience (in years)
Before reaching 23 years 1
from 23 years before reaching 26 years 2
from 26 years before reaching 31 years 3
from 31 years before reaching 36 years 5
from 36 years before reaching 41 years 7
from 41 years before reaching 46, years 9
from 46 years before reaching 51 years 11
from 51 years before reaching 56 years 13
from 56 years before reaching 61 years 14
from 61 years and older 15
Disability pensions are assigned in such sizes:
If people with disabilities have work experience required for the granting of old-age pensions, including on concessional terms, then the invalidity pension is granted in the amount of the retirement pension with appropriate work experience. Pensions are calculated according to the set standards in percent of the average monthly earnings that citizens received before applying for a pension. In the presence of seniority, dismissal does not affect on the establishing of the disability group and the purpose of the relevant pension.
Who is eligible for preferential fares in transport, now? (Volodymyr Petrovych)
The law of Ukraine "On introducing the amendments and recognition, of such that are no longer in force, certain legislative acts of Ukraine" of 28.12.2014 No. 76-VII were made changes to some legislative acts of Ukraine: Law of Ukraine "On status and social protection of citizens who suffered from the Chernobyl disaster" paragraph 3 of part 1 of article 30 is deleted.
Paragraph 11 of Transitional provisions of the Law of Ukraine "On introducing amendments and recognition, of such that are no longer in force, certain legislative acts of Ukraine" dated 28.12,2014 No. 76-VIII established that the norms of this Law in respect of the withdrawal of concessionary use of public transport for certain categories of citizens come into force from 1 June 2015, in addition to regulations to ensure the reduced fare to disabled people of I and II groups, disabled children, orphans, children deprived of parental care, students from low-income families and persons who accompany them and who accompany the disabled person of I group, combatants.
According to the Final provisions of the said act, rules regarding the removal of the concessionary use of public transport is effective from 1 June 2015 except for the following categories: combatants; invalids of I and II groups; children with disabilities; persons accompanying the disabled person of group I or disabled child.
The right of preferential use of public transport remains unchanged for such categories of citizens: disabled veterans, rehabilitated persons, veterans of military service, the body of internal Affairs, state fire service, the state criminal-executive service, civil protection, the state service for special communication and information protection of Ukraine; disabled military service; parents of a soldier who was killed (died) or reported missing during military service; persons affected by the Chernobyl disaster of category I and category II - liquidators; children with disabilities because of the Chernobyl disaster; children from large families.
Please note, that city residents can get free legal aid in the public reception of the NGO "Community Development" at the address: Lviv, Shevchenko Avenue, 7, 4 floor , from Monday to Friday, from 09:00 to 18:00. Also city residents have the opportunity to obtain legal advice on the hotline (032) 235 55 03.
In Lviv there is a public reception, where qualified lawyers provide legal assistance. Besides, specialists of the Legal Department provide assistance for residents over the phone. Recently, the lawyers submitted the following questions:
I was fired from a post, stating the reason as the liquidation of the company, however, was eliminated only a separate branch and not the enterprise as a whole. Was this dismissal legal? (Liliya Volodymyrivna)
In accordance with paragraph 1 of part 1 of article 40 of the Labor code of Ukraine, an employment contract concluded for an indefinite term and fixed-term employment contract before the expiry of the validity period may be terminated by the owner or its authorized body in case of changes in the organization of production and labour, including, liquidation, reorganization, bankruptcy or conversion of the enterprise, institution, organization, reduction of number or staff of workers.
From the contents of the specified norm is seen that it provides for several independent grounds for termination at the initiative of the owner of an employment contract with the employee, as liquidation; reorganization; bankruptcy; restructuring of an enterprise, institution, organization; staff reduction.
Used in this norm concepts of “liquidation” and “reorganization”, “conversion”, “bankruptcy”, “reduction of number or staff of workers” - related to enterprises, institutions, organizations as legal entities, and not their structural subdivisions.
The definition of a legal person, the concept and procedure for the liquidation or reorganization of a legal entity are contained in articles 80, 104 - 111 of the Civil Code of Ukraine, articles 62-66, 79-92 The Economic Code of Ukraine, articles 1-22 of the Law of Ukraine “On business associations”.
According to these regulations the company determines its organizational structure, sets the number of employees and staffing. An entity may consist of production or functional structural units (industries, offices, shops, offices, bureaus, services, and so on) and to establish branches, representative offices, branches and other separate units.
Branches and representative offices and other structural subdivisions of enterprises, institutions, organizations do not have the status of legal entities and shall act on the basis of these provisions, approved by the company (article 95 of the Civil Code of Ukraine, part 4 of article 64 of The Economic Code of Ukraine).
Consequently, the basis for termination of the employee's employment agreement in connection with the liquidation of enterprises, institutions and organizations in accordance with paragraph 1 of part 1 of article 40 of the Labor Code of Ukraine may be the liquidation or reorganization of the enterprise, institution or organization as a legal entity.
According to part 2 of article 104 of the Civil Code of Ukraine, legal, is such that stopped, from the date of Deposit to the single state register of record about termination.
The elimination of the structural units of a legal entity with the creating or without creating another structural unit is not a liquidation or reorganization of a legal entity, but simply an indication of change in the internal (organizational) structure of the legal entity. Unlike liquidation or reorganization of a legal entity, that fact may be the ground for dismissal of employees of the structural unit in accordance with paragraph 1 of part 1 of article 40 of the Labor Code of Ukraine only on grounds of reduction of number or staff of workers in connection with such changes subject to the owner of the requirements of part 2 of article 40, article 42, 43, 492 of Labor Code of Ukraine.
Having established that the fact that the internal reorganization of the legal entity (by implementing changes in the organizational structure of the enterprise), one should come to the correct conclusion about the illegality of dismissal of the worker of the structural division of the enterprise on the basis of paragraph 1 of part 1 of article 40 of the Labour Code of Ukraine in connection with the liquidation of the division when justified by the owner of the fact of reduction of number or staff of employees in connection with such changes in the structure of the company and compliance by the owner of the requirements of part 3, article 36, part 2, article 40, article 42, 43, 492of Labor Code of Ukraine on the dismissal of an employee.
May the employer, after the dismissal, send the labor book to the employee by post without his consent? (Liliya Volodymyrivna)
The questions connected with order of service records, their storage, manufacturing, logistics and accounting are governed by the decree of the Cabinet of Ministers of Ukraine "On employment records of employees" from April 27, 1993, the Questions regarding creation of work books, storage, manufacturing, logistics and accounting, No. 301, Instruction No. 58 and other legislative acts.
So, according to paragraph 4.1 of the Instruction No. 58, the owner or its authorized body (hereinafter the employer) must give the employee his employment history in day of dismissal with amended the entry of dismissal.
In accordance with paragraph 4.2 Instruction No. 58, if the employee is absent from work on the day of dismissal, the employer in this day informe the employee about the need to obtain a labor card.
Sending the work book by postl with delivery on the specified address is allowed only with the written consent of the employee.
Documentation on accounting work books is in the Book of records of the movement of labor books and inserts ", approved by order from 11.08.93, No. 180 the Ministry of Statistics of Ukraine. The book is kept by the officer responsible for recruitment and promotion in the organization. It recorded all workbooks that received from employees in employment, labor books and inserts, issued for the first time.
At dismissal, the employment record book is issued to the employee under the signature in “the Book of records of the movement of labor books and inserts”.
However, this registration form does not allow to capture the process of administration of the work book by the post with the employee's consent. In this case, the column 12 may be provided on either the date of dispatch of the work book by the post, or the date of receipt by post by the employee (according to the receipt). In column 13 are given the explanation, that the work-book is sent to the employee by post, and specifies details of the statements of the employee requesting the expulsion of the work book by the post. It is also possible the preparation of an Annex to the book of labor records in the form of a list of employees for whom employment records in accordance with the law were sent by post, and in columns 12 - 13 you can give a link to this list.
If written consent to send the work book by the post the employer has not received, one should be guided by the provisions of clause 6.2 Instruction No. 58, according to which employment records and their duplicates, not obtained by employees upon dismissal, stored for two years in the personnel Department of the organization separate from other employment records, comprising at work.
After this period, unclaimed employment records (duplicates) are stored in the archive of the company for 50 years, and by the end of this period they can be destroyed in the prescribed manner.
Will my dismissal influence on the arrangement of a disability pension? (Liliya Volodymyrivna)
Disability pension due to general disease shall be appointed with such seniority at time of disability:
Work experience (in years)
Before reaching 23 years 1
from 23 years before reaching 26 years 2
from 26 years before reaching 31 years 3
from 31 years before reaching 36 years 5
from 36 years before reaching 41 years 7
from 41 years before reaching 46, years 9
from 46 years before reaching 51 years 11
from 51 years before reaching 56 years 13
from 56 years before reaching 61 years 14
from 61 years and older 15
Disability pensions are assigned in such sizes:
- to invalids of I group - 70 percents;
- to invalids of II group - 60 percents;
- to invalids of III group - 40 percent of earnings (article 64).
If people with disabilities have work experience required for the granting of old-age pensions, including on concessional terms, then the invalidity pension is granted in the amount of the retirement pension with appropriate work experience. Pensions are calculated according to the set standards in percent of the average monthly earnings that citizens received before applying for a pension. In the presence of seniority, dismissal does not affect on the establishing of the disability group and the purpose of the relevant pension.
Who is eligible for preferential fares in transport, now? (Volodymyr Petrovych)
The law of Ukraine "On introducing the amendments and recognition, of such that are no longer in force, certain legislative acts of Ukraine" of 28.12.2014 No. 76-VII were made changes to some legislative acts of Ukraine: Law of Ukraine "On status and social protection of citizens who suffered from the Chernobyl disaster" paragraph 3 of part 1 of article 30 is deleted.
- In the Law of Ukraine "On status of war veterans, guarantees of their social protection" paragraph 7 of parts and of articles 14 and 15, paragraph 16 of part 1 of article 16 are deleted.
- In the Law of Ukraine "On basic principles of social protection of labour veterans and other elderly citizens in Ukraine" paragraph 12 of article 7 and paragraph 16 of article 9 are deleted.
- In the Law of Ukraine "On victims of Nazi persecution" paragraph 7 of part and articles 61, 62, 63, 64 is deleted.
- In the Law of Ukraine "On social protection of children of war" paragraph 6 of article 5 is deleted.
- In article 50 of the law of Ukraine "On Prosecutor's office" part fourteenth amended in such form: "For pensioners and members of their families remain benefits and guarantees of social protection stipulated by this Law and other laws, in addition to the benefits set out in paragraph one of part three of article 49 of this Law. Pensioners and members of their families living together with them, are also entitled to medical care in medical institutions in which they were registered prior to the retirement of the Prosecutor.
Paragraph 11 of Transitional provisions of the Law of Ukraine "On introducing amendments and recognition, of such that are no longer in force, certain legislative acts of Ukraine" dated 28.12,2014 No. 76-VIII established that the norms of this Law in respect of the withdrawal of concessionary use of public transport for certain categories of citizens come into force from 1 June 2015, in addition to regulations to ensure the reduced fare to disabled people of I and II groups, disabled children, orphans, children deprived of parental care, students from low-income families and persons who accompany them and who accompany the disabled person of I group, combatants.
According to the Final provisions of the said act, rules regarding the removal of the concessionary use of public transport is effective from 1 June 2015 except for the following categories: combatants; invalids of I and II groups; children with disabilities; persons accompanying the disabled person of group I or disabled child.
The right of preferential use of public transport remains unchanged for such categories of citizens: disabled veterans, rehabilitated persons, veterans of military service, the body of internal Affairs, state fire service, the state criminal-executive service, civil protection, the state service for special communication and information protection of Ukraine; disabled military service; parents of a soldier who was killed (died) or reported missing during military service; persons affected by the Chernobyl disaster of category I and category II - liquidators; children with disabilities because of the Chernobyl disaster; children from large families.
Please note, that city residents can get free legal aid in the public reception of the NGO "Community Development" at the address: Lviv, Shevchenko Avenue, 7, 4 floor , from Monday to Friday, from 09:00 to 18:00. Also city residents have the opportunity to obtain legal advice on the hotline (032) 235 55 03.