Can a mobilized employee be dismissed — a lawyer's clarification

Mobilization cannot constitute grounds for dismissing an employee at the employer’s initiative—this guarantee remains in effect throughout the entire period of military service, regardless of its duration. Labor law attorney Yana Syrotenko of LLC "LAW FIRM ‘LOGIC’  told UNN in a comment.

According to her, pursuant to Part Three of Article 119 of the Labor Code of Ukraine, mobilized employees retain their jobs and positions at the enterprise, regardless of its form of ownership or subordination.

Military service cannot constitute grounds for terminating employment relations

The attorney noted that the current version of Article 119 of the Labor Code provides specifically for the retention of the employee’s job and position, whereas the guarantee of retaining average earnings for most mobilized employees was abolished by legislative amendments.

At the same time, according to the attorney, the law provides for a limited list of cases in which an employment contract with a mobilized employee may be terminated—in particular, the liquidation of the enterprise, the employee’s death, or the expiration of a fixed-term employment contract.

In practice, Syrotenko noted, some employers attempt to avoid fulfilling this obligation by formally transferring the employee, removing the position from the staffing table, or changing the organizational structure of the enterprise. However, according to her, such actions do not release the employer from its obligations.

Even in the event of the reorganization of the enterprise or a change in its structure, the employer must ensure that the employee can return to performing their work duties after completing military service

She also pointed out that the length of an employee’s military service cannot constitute grounds for their dismissal.

Attempts by an employer to dismiss an employee because of a prolonged absence from work due to military service constitute a violation of the guarantees established by law and may be challenged in court

The attorney separately warned of risks for the employer after the mobilized employee returns from service.

Preventing an employee from returning to work after completing military service or refusing to restore their employment rights constitutes a violation of statutory guarantees and may be grounds for applying to court with claims for reinstatement, recovery of average earnings for the period of involuntary absence, and protection of other violated rights

She also explained that if another person was temporarily hired to replace a mobilized employee under a fixed-term employment contract, then after the primary employee returns, that fixed-term contract is subject to termination due to the expiration of its term.