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Analytics in the Context of Dismissal of Workers for Absenteeism During Quarantine
As of 01.10.2020, transport communications in Kyiv are working normally, and the city is in the yellow zone. There are no reasons for employees not to go to work and not complete work tasks.
According to Decree of July 22, 2020 No. 641 “On the Establishment of Quarantine and Introduction of Enhanced Anti-Epidemic Measures in the Territory with a Wide Spread of the Acute Respiratory Disease COVID-19 Caused by the SARS-CoV-2 Coronavirus” https://www.kmu.gov.ua/npas / pro-vstanovlennya-karantinu-ta-zapr-641, yellow zone restrictions include:
implementation of regular and irregular transportation of passengers by road transport, including transportation of passengers on city bus routes in the route taxi mode, by electric (tram, trolleybus), railway transport, in urban, suburban, intercity, intraregional and interregional traffic, in a larger quantity than the number of seating positions provided for in the vehicle specification as defined in the vehicle registration documents.
That is, an employee cannot refer to the impossibility of getting to work until the red zone level is introduced (under this condition, underground and ground transport no longer operate).
Analysis of Judicial Practice on Dismissal for Absenteeism
General information about dismissal for absenteeism. Thus, based on the example of the Decision of the Supreme Court in Case No. 459/2618/17, a list of significant reasons for absence from work has been established (http://reyestr.court.gov.ua/Review/88187525).
The determining factor for resolving the issue of the legality of the plaintiff’s dismissal from work under Paragraph 4 of Article 40 of the Labor Code of Ukraine (Absenteeism) is to clarify the validity of the reasons for their absence from work.
An exhaustive list of valid reasons for absence from work in the labor legislation of Ukraine does not yet exist; therefore, in each individual case, the assessment of the validity of the reason for absence from work is given based on specific circumstances.
According to the established judicial practice, the reason for the absence of an employee from work can be considered valid if the attendance to work was impeded by significant circumstances that cannot be eliminated by the employee themselves, in particular: fire, flood (other natural disasters); accidents or downtime in transport; fulfillment of a civic duty (rendering assistance to persons affected by an accident, saving public or private property in case of a fire, natural disaster); taking care of an unexpectedly sick family member; absence from work with the permission of the immediate supervisor; absence for health reasons. Since today we have no problems with transport communications, an employee does not have grounds to refer to quarantine measures as a significant reason.
Recommendations of the Cabinet of Ministers
Currently, Resolution of the Cabinet of Ministers of Ukraine dated March 25, 2020 No. 256 “Some Issues of Ensuring Labor Rights of Civil Servants, Employees of State Bodies, Enterprises, Institutions and Organizations during the Establishment of Quarantine in Connection with the Exacerbation of the Situation Associated with the Spread of Cases of Acute Respiratory Disease COVID-19 Caused by the SARS-CoV-2 Coronavirus” is in force.
This Resolution provided a recommendation to enterprises, institutions and organizations, regardless of the form of ownership, not to dismiss employees who perform work at home specified in the employment contract, as well as employees who are on unpaid leave for the quarantine period, on the grounds established by Paragraphs 3, 4 and 5 of the first part of Article 40 of the Labor Code of Ukraine (including truancy).
However, this recommendation is not mandatory either.
There are currently no changes introduced to the Labor Code concerning our issue.
Yaroslav Tyrsin, Lawyer of the “Prime” Law Firm