Do mobilized workers need to be paid and what job guarantees do they have after military service?

In the conditions of martial law, almost every Ukrainian company is faced with the fact that workers are being mobilized. And, in addition to the need to find someone to replace the mobilized, there are many questions about how to proceed further, what is the procedure for calculating wages for such employees, and what should be known about mobilization for those who are responsible for calculating wages and keeping personnel records. Heads of companies, public and charitable organizations (NGOs) contact us with various requests regarding mobilized workers.

In this article, we will consider the following popular questions that concern mobilized workers:

1. Does the employer have to pay wages or any other benefits to such an employee?
2. What job guarantees do employees have after demobilization?
3. What documents should be issued to return to work after discharge from military service?
4. Do they have the right to fire an employee who is in military service?

Is the employer obliged to charge wages or other payments to the mobilized employee?

The salary is not accrued to the mobilized employee, because in fact he does not perform his work duties. Previously, the average earnings were kept for such employees, the payment of which was canceled starting from July 19, 2022 in accordance with the Law of Ukraine No. 2352-IX dated July 1, 2022.

What job guarantees do employees have after demobilization?

1. For a mobilized employee, his workplace and position are preserved in accordance with Art. 119 of the Code of Labor Laws (hereinafter – Labor Code).
2. Military personnel who have participated in hostilities or are disabled as a result of war and other categories of citizens are entitled to additional paid leave. The duration of such leave is 14 calendar days per year in accordance with Art. 77.2 of the Criminal Code.
3. Hospital leave is paid at the rate of 100%, regardless of the length of insurance, on the basis of Law of Ukraine No. 3551-ХІІ of 10/22/1993.
4. In case of a reduction in the staff, former military personnel have the right to remain in the staff in accordance with Art. 42 of the Criminal Code.
5. The time spent in the military service is included in the work and insurance experience, and is also taken into account in the civil service experience in accordance with the Law of Ukraine No. 2232-ХІІ dated March 25, 1992.

What documents should be issued to return to work after discharge from military service?

An employee dismissed from military service must provide a military ID stating that he was dismissed and from what date.

After that, it is necessary to issue an order to return to work, because the employee was released for the period of military service, which must also be confirmed by a corresponding order.

Do they have the right to fire an employee who is in military service?

An employer has no legal grounds to dismiss an employee who is in military service. Even if a fixed-term employment contract was drawn up with such an employee and its validity has expired. Preservation of the workplace is one of the guarantees provided to military personnel, and it is legally enshrined in the Labor Code. This is also confirmed by judicial practice, recognizing the facts of dismissal of mobilized workers as illegal.

However, the explanations of the State Labor Service of Ukraine indicate that at the request of a mobilized employee based on his application, such an employee may be dismissed at his own will or by agreement of the parties.

A practical case

In the spring of 2023, my team received a request for consultation regarding a mobilized worker.

The employee received the summons, sent a copy of it to the employer, after which contact with the employee disappeared. However, after some time information appeared that this employee was not in military service.

We advised the client to write a request to the Military Commissariat. In the reply of the Military Committee, it was said that this employee was not mobilized and is not in military service. Therefore, the request was about what corrections should be made and documents drawn up in such a situation, because the employer intended to fire this employee.

My team and I carefully studied the situation and made the following recommendations:

• issue a memo to the head of the Personnel Department with a description of the situation and attachment of all necessary documents, namely copies of the summons and copies of the reply letter from the Military Commissariat;
• issue an order to cancel the dismissal order;
• make adjustments to the timesheet;
• issue a dismissal order and send it by registered mail to the place of residence with a description of the attachment and a notice of delivery.

I would like to draw your attention to the fact that this case does not deal with the issue of salary accrual for the period of layoff, but with the documentation of the situation that has developed.

Situations surrounding mobilization can be different, and in each of them you should rely only on the help of qualified people specialists. If you have questions about mobilized workers, we advise you to go to ours site for more detailed information.

Vita Voznenko

https://www.linkedin.com/in/vita-voznenko-912142303