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Regulation of Mobilization of an Employee
By the Decree of the President of Ukraine No. 69/2022 of February 24, 2022, the general mobilization was announced, and it was decided to hold conscription on the whole territory of Ukraine. The third round of mobilization has been recently announced, during which servicemen who have graduated from military departments are subject to conscription. In this regard, the employer should know how to act in the event of mobilization of the employee, namely, how to properly arrange it and what rights and guarantees are maintained for the employee.
- Guarantees for mobilized employees
According to Art. 119 of the Labor Code of Ukraine, employees called up for military service during mobilization, for the duration of military service, shall maintain their:
– average salary at the enterprise, institution, organization, farm, agricultural production cooperative, regardless of subordination and form of ownership, as well as in case of individual entrepreneurs which they worked for at the time of conscription.
These guarantees shall also be retained by employees who:
– received injuries (other damage to health) during military service and are being treated in medical institutions;
– were taken captive or declared missing.
Guarantees shall be kept for the period until the day following the day of enlistment of such employees in district (city) territorial centers of recruitment and social support, the Central Office or regional bodies of the Security Service of Ukraine, the corresponding unit of the Foreign Intelligence Service of Ukraine after their discharge from military service in case of completion of their treatment in medical institutions, regardless of the term of treatment, return from captivity, their appearance after being declared missing or before the day of declaring them dead by the court.
- Registration of the fact of conscription of the employee
According to the explanations of the Ministry of Economy, taking into account the above guarantees, employees called up for military service during mobilization or accepted for military service under a contract shall not be subject to dismissal under paragraph 3 of Article 36 of the Labor Code of Ukraine, but shall only be released from the performance of duties provided for in the labor contract, which is executed by the relevant order (instruction) of the employer.
The basis for maintaining a workplace, position and average salary is the fact of conscription or admission to military service under a contract itself (which is confirmed by the relevant extracts from orders, summons, instruction, extracts from orders to enlist in the personnel military unit, etc., provided to the owner or their authorized body) during the special period until its termination or until the day of actual discharge.
Thus, in the case of conscription of the employee during mobilization or concluding a contract for military service, the employee shall provide the employer with the appropriate confirmation document. On the basis of this document, the employer shall issue an order dismissing the employee from duty under the labor contract, indicating the date of commencement of military service, the fact of retaining the employee’s workplace, position, and average salary.
In this case, no entries shall be made in the employee’s employment record.
- Registration of participation in territorial defense
According to part 3 of Art. 9 of the Law of Ukraine “On Fundamentals of National Resistance”, the voluntary formations of territorial communities include citizens of Ukraine who meet the requirements of the Regulations on Voluntary Formations of Territorial Communities and who passed medical, professional and psychological selection and signed a contract of a territorial defense volunteer.
According to the explanations of the Ministry of Economy, taking into account the specifics of the service in territorial defense, which may provide for not permanent but periodic involvement of the employee in the performance of their duties, the employer does not have to necessarily issue an order dismissing the employee from employment under the labor contract. In each case, the level of involvement of the employee in the territorial defense, the amount of working time spent by the employee on this activity, and the efficiency and ability to perform their duties under the labor contract shall be estimated.
At the same time, employees are guaranteed to maintain their workplaces (positions) and average salaries as they are performing their duties of territorial defense during working hours.
The document confirming participation in territorial defense is the contract of a territorial defense volunteer.