Senior HR Officer
Payroll sector of BDO LLC
A company decided to terminate the activities of the enterprise (liquidation). What to do with the mobilized employees in this case?
Formal termination of the enterprise's activities is not a reason for dismissal of a mobilized employee. The mobilized employees have a right to return to the same job and position within the company where they were employed at the time of receiving “the call-out notice”.
You can dismiss a mobilized employee:
- by agreement of the parties pursuant to Article 36, paragraph 1, part 1 of the Labor Code;
- at the employee's own request on the basis of Article 38 of the Labor Code;
- at the employer's initiative following changes in production and labor management (including liquidation) pursuant to Article 40, paragraph 1, part 1 of the Labor Code. .
Dismissal of the mobilized employee in case of complete liquidation of the enterprise is a dismissal at the employer's initiative pursuant to Article 40, paragraph 1, part 1 of the Labor Code.
The following steps must be followed to register such a dismissal:
- personal notice to the employee about the next dismissal no later than two months in advance (Article 49-2 of the Labor Code);
- notification of the State Employment Service about the planned dismissal no later than two months in advance — form No. 4-PN “Information on the planned mass dismissal of workers due to changes in production and labor management”.
If it is known in which department the employee is serving in and its location, the company may send the employee two registered letters with notice of the planned dismissal:
- registered letters with a notice of delivery (or a letter with declared value with a list of the attachments and a notice of delivery) — on the employee's name to the military unit;
- with the declared value with a list of the attachment and the mark “Hand over in person” — to the address of residence.
In the letter sent to the military unit, it is possible to determine the date of dismissal, given the time required for sending the letter, receiving correspondence by an authorized person of the military unit and handing the letter over to the employee.
Separately, it is worth noting that the date of dismissal can be postponed by the required number of days if the period between the date of receipt of the letter by the employee and the planned date of dismissal is less than two months.
However, the described method of notice requires establishing the exact date of receipt of the letter by the employee. Previously, such information can be obtained from the employee himself, if there is a communication channel with him.
In the future (after receiving the notice of delivery of the letter to the authorized person of the military unit), you should send a request to the military unit to confirm the date of delivery of the letter to the employee — with reference to the time and date of delivery of the letter of Ukrposhta message.
The letter sent to the place of residence must contain the mark "Hand over personally". In case of its absence in accordance with paragraph 99 of the Rules for the provision of postal services, approved by the Resolution of the Cabinet of Ministers of Ukraine dated 05.03.2009 No. 270, the letter can be handed over to both the addressee and an adult family member, subject to the presentation of an identity document, as well as a document certifying family ties with the addressee (birth certificate, marriage certificate, etc.).
Receipt of a notice of delivery of a letter marked “Hand over personally” to the employer will indicate not only the fact of obtaining the necessary information by the employee personally, but also the fact of his location at home, and not in the military unit (demobilization, dismissal from the location of the military unit, vacation, etc.).
Neither labor law nor legislation on military service and social protection of military personnel imposes on the employer the obligation to employ employees who performed military duty during the period and were dismissed in connection with the liquidation.
Subject to proper notification about the planned dismissal due to the liquidation of the enterprise, the employer will have the right to dismiss the mobilized employee during his military service.
Any dismissal from the enterprise, including due to the liquidation, is issued by the related decree or order (Decree of dismissal due to the liquidation of the enterprise).
After signing and registering the decree, it must be read by the mobilized employee and provide him with a copy of this decree (Article 47, part 2 of the Labor Code). The procedure for reviewing and sending a dismissal decree due to liquidation may be the same as for the employee's personal notification about the next dismissal (see above).
On the dismissal day of the mobilized employee, the company must pay him:
- monetary compensation for unused vacation
- severance pay in the amount of average monthly earnings (Article 44 of the Labor Code of Ukraine).