Even in wartime, life goes on and local self-government bodies continue to exercise their powers, providing services to the public and solving ongoing issues.
One of them is changes in the legislation regarding personnel procedures: Who in the local self-government bodies can resign/be dismissed during the war and how to do it? What are the rights of employees and employers? We decided to talk about the legal grounds and the procedure for terminating employment relations in the local self-government bodies. Read the answers and comments of Dmytro Fokasiiev, Adviser on Decentralisation and Local Self-Government at the Regional Office of U-LEAD with Europe in the Kharkiv Oblast, below.
First, the general provisions.
According to Mr. Fokasiiev, the decision on the dismissal of an employee from the local self-government body can be made by the head of the local self-government body with the status of a legal entity for employees and workers; the local council for elected positions; the head of the village/town/city for non-elected positions.
What are the grounds for termination of employment in the local self-government body?
There are general and special grounds.
As for the “general grounds”, we are talking about termination of employment by the employee and termination of employment by the employer, as provided for by the Labour Code of Ukraine.
As for the “special grounds”, these are the grounds provided for by the specific laws of Ukraine (Law of Ukraine “On Local Self-Government in Ukraine”, Law of Ukraine “On Service in Local Self-Government”, Law of Ukraine “On Organisation of Labour Relations under Martial law”, other Laws of Ukraine):
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violation of oath by an official of local self-government;
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violation of the conditions for the exercise of the right to service in local self-government;
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the local self-government official reaches the maximum age of service in local self-government;
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identification/occurrence of circumstances that prevent a person from service; non-compliance with the requirements related to the service in local self-government.
What should a local self-government body as an employer and its employees remember when terminating employment?
It is important for local self-government bodies to remember that an employee who has valid grounds for dismissal is entitled to demand from the employer to dismiss him/her at a different time, and the employer must terminate the employment contract at the time requested by the employee.
As Mr. Fokasiiev emphasised, Article 38 of the Labour Code of Ukraine contains a non-exhaustive list of valid grounds that entitle the employee to resign. In this case, the employer must terminate his/her employment within the period specified in the resignation letter. Moreover, the resignation period can be less or more than two weeks.
The employee may terminate the employment contract within the period specified in his/her resignation letter in connection with the hostilities in the areas where the enterprise, institution or organisation is located and the existence of a threat to life and health (except in cases of forced involvement in community service under martial law and involvement in works on critical infrastructure facilities).
Another important point to be considered by local self-government bodies is a prerequisite for the dismissal of an official of the local self-government body for violating the oath. As was noted by the adviser, this decision should be based on violations established by a thorough official investigation (the judicial practice of the Supreme Court of Ukraine: case No. 776/6695/16-a dated 2 June 2020).
What are the recommendations for local self-government bodies regarding the employment termination procedure?
Given the personnel problems in many regions, one of the most important things is the mental state of employees: if it is the employee who is resigning, a day or two before the termination of employment, ask if he/she has changed his/her mind.
According to Mr. Fokasiiev, if it is necessary to clarify the facts and details of a disciplinary offence, municipalities must conduct an official investigation. The decision to conduct an official investigation is made by an entity that is legally empowered to appoint and dismiss the person against whom an official investigation is proposed.
As for documenting the employment termination process, the adviser noted that the employee needs to submit a resignation letter to the employer depending on the situation and upon agreement between them. This can be done in different formats: in hard copy; electronically using qualified electronic signatures and in written form (scanned or photographed) without using electronic signatures.
Conclusion:
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Depending on the position, the decision on the dismissal of an employee from the local self-government body can be made by:
the head of the local self-government body with the status of a legal entity for employees and workers; the local council for elected positions; the head of the village/town/city for non-elected positions. -
The powers of elected officials may be terminated both on general and special grounds.
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An employee who has valid grounds is entitled to resign. Moreover, the resignation period can be less or more than two weeks.
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An employee can be dismissed by the employer only on the grounds and in the manner prescribed by the effective laws.