CURRENT ISSUES OF EMPLOYER’S RESPONSIBILITY FOR ILLEGAL DISMISSAL OF AN EMPLOYEE IN THE CONDITIONS OF THE CORONAVIRUS SARS-COV-2 PANDEMIC

Abstract

The purpose of the article is to study the problematic aspects of the employer’s liability for illegal dismissal, in particular, regarding the acceleration of the procedure for compensation for harm to an unlawfully dismissed employee, improving the mechanism of employer’s administrative liability for illegal dismissal, strengthening workers’ guarantees in case of mass dismissal, and amending criminal legislation regarding gross violations of labor legislation committed in the context of the SARS-CoV-2 coronavirus pandemic. To achieve the goal of this scientific article, a complex of general scientific and special methods was applied. In particular, thanks to the dialectical method of cognition, a basic approach to the study of problems arising when deciding the issue of the employer’s responsibility for the illegal dismissal of employees has been established; hermeneutic – the interpretation of legislative acts in this area has been carried out. Also, the article widely uses general scientific methods such as induction, deduction, analysis, synthesis, generalization. Specially, scientific methods, in particular, formal-legal (dogmatic) were used in the development of proposals for amendments to the current legislation of Ukraine. The scientific article formulates the main reasons for the violation of labor legislation by employers. Based on the results of the analysis of the current legislative norms, it was established that at present there are no norms that would prohibit, justify, or give employers the right to fire workers in connection with the introduction of quarantine measures in the country. Given this, employers are trying to hide the true circumstances and grounds for release under legal grounds provided for by the Labor Code of Ukraine, the number of illegal dismissals during the quarantine period is constantly growing, as evidenced by statistics provided by the State Employment Service. Taking this into account, the author proposed a number of changes to the current legislation of Ukraine, in particular: 1) in Art. 235 of the Labor Code on the payment of monetary compensation to an employee in connection with his illegal dismissal at the expense of the state budget of Ukraine in the event of the actual liquidation of the enterprise before the court decides to recover average earnings from the employer during the forced absence; 2) in the Code of Labor Laws – with the aim of introducing the positive experience of France in terms of drawing up social plans at enterprises to mitigate the negative consequences of mass layoffs for economic reasons; 3) addition to Art. 41 of the Code of Ukraine on Administrative Offenses by the provision on the responsibility of the employer for illegal dismissal or refusal to hire in cases excluding his criminal liability. Also, the author supported the scientific position on the need to amend Art. 172 of the Criminal Code of Ukraine regarding the exclusion of the concept of “gross violation of labor legislation” and the transformation of the corpus delicti provided for by this article into a material one.