How to fire an employee during quarantine?
With the introduction of quarantine restrictions in the country, a large number of businesses had to suspend their operations. Without making any profit, many of the entrepreneurs faced the need to sharply cut costs.
Some decided to send their employees on vacation at their own expense or to establish a remote work regime, if the activity allows it. However, there are also those who have faced the need to dismiss an employee during quarantine.
In such a situation, it is necessary to understand how to do it correctly, so as not to have problems with the regulatory authorities in the future.
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So, can an employee be dismissed during quarantine?
Yes. There have been no changes in labour law in terms of termination of employment due to quarantine. In addition, no special conditions for termination of an employment relationship during quarantine were previously provided for either. That is, even today, the dismissal of employees takes place according to the usual procedure, namely:
- At the employer’s initiative (Article 40 of the Labour Code);
- At the employee’s initiative (Articles 38, 39 of the Labour Code).
- Upon mutual agreement of the parties
So, having the opportunity to legally dismiss an employee, we should decide which of the three options given is better to use. Let’s take a closer look at this issue.
Upon mutual agreement of the parties
First of all, we recommend to communicate frankly with employees and describe the problem, because often the best option is to terminate the employment relationship upon mutual agreement of the parties (Part 1 of Article 36 of the Labour Code).
When an employee is dismissed under this procedure, there are no additional requirements to be met by the employer. In other words, only the following conditions shall be met:
- A resignation letter from an employee;
- The payment of wages by the employer on the day of the dismissal and the familiarization of the employee with the dismissal order and the issuance of a correctly completed employment record book.
Please note! If an employee does not wish to terminate the employment relationship, forcing him or her to write an application is illegal and may result in criminal prosecution of the employer for gross violation of the labour legislation (Article 172 of the Criminal Code of Ukraine).
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At the employer’s initiative
In the absence of an alternative, if the employee does not wish to leave the position voluntarily, the employer may initiate the procedure of dismissal on other grounds provided for in Article 40 of the Labour Code. During quarantine, the following grounds (although there are more of them) seem to be most appropriate:
- Changes in the production and labor organization (Part 1 of Article 40 of the Labor Code);
- Unauthorized absence (Part 4 of Article 40 of the Labour Code);
- Inconsistent with job (Part 11 of Article 40 of the Labour Code).
In addition, some grounds for dismissal on the employer’s initiative are provided by Article 41 of the Labour Code, in particular, the commission of a single gross violation of employment duties by the head of the enterprise, loss of trust, etc.
It should be noted that each of the abovementioned grounds for dismissal of an employee at the employer’s initiative must be duly documented. For example, let us briefly consider the main stages of dismissal of an employee for unauthorized absence. So, the employee did not come to work and did not provide any reasons for his/her absence. The employer’s actions in this case are as follows:
- Find out the reasons why an employee did not come to work by all possible means (phone, mail, etc.). Remember that only absence at work without valid reasons gives grounds to initiate the dismissal procedure.
- Fix the employee’s absence by an act.
- Try to get explanations from the employee about the reasons for absence by sending a corresponding request to all known addresses of the latter.
- If there is no answer from the employee or the reasons for his/her failure to come are not excusable, then the next stage is to obtain the consent of the trade union (if any).
- The final step is the actual termination of employment. However, it must also be properly implemented. Therefore, keep in mind the following points: the employee should be acquainted with the dismissal order (if he/she refuses to get acquainted with it, document such a refusal with the appropriate act), fully pay up the employee on the day of dismissal (Articles 116, 117 of the Labour Code) and issue a correctly filled employment record book.
Please note! The court practice is developed in such a way that it is the employer who has to prove in court the lawfulness of dismissal of an employee. Therefore, by correctly implementing the procedure described above, the employer guarantees itself a positive decision of the court in case of appeal by the employee of his/her release.
Let’s talk separately about the dismissal procedure
If you need to dismiss a director, you can use paragraph 5 of Article 41 of the Labour Code. According to this rule, it is possible to dismiss a director in case of termination of the powers of an official of the enterprise, i.e. the very fact of termination of the powers of a member of the executive body is sufficient and no additional conditions are required.
However, in view of the requirements of paragraph 1 of Article 44 of the Labour Code, this “prompt dismissal” would require payment of severance pay, namely at least the average salary for six months.
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Thus, you can dismiss an employee during quarantine in the general order, because quarantine does not affect the dismissal procedure and is not a reason for dismissal. If an employee does not agree to be dismissed upon mutual agreement of the parties, then we choose another option from those provided for by other articles of the Labour Code (unauthorized absence, inconsistency with job, etc.) and implement it necessarily with the observance of all necessary procedures. Besides, there is an option to temporarily release or transfer the relations with the employee to civil manner.
A qualified lawyer will help you understand whether it is possible to dismiss a particular employee, and on what grounds it would be better to do. If the implementation of the dismissal procedure has great risks of being recognized as unlawful in court, then lawyers will offer other options to optimize the work of employees in the framework of employment relations and help to implement them.
Non-compliance with the dismissal procedure can only bring troubles, and instead of reducing the costs of the company at the expense of the salary of the dismissed employee and single social contribution, you can pay many times more. In particular, in case of criminal prosecution, you can be charged with a fine of UAH 34K (Article 172 of the Criminal Code of Ukraine) and in case of reinstatement of an employee in office - the average salary of an employee for the entire period of forced absence (part 2 of Article 235 of the Labour Code).
Therefore, before starting the dismissal procedure, we recommend to consult with experienced lawyers, choose the best option for you to solve the situation and protect yourself from the negative consequences due to violation of the dismissal procedure.
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