Reinstatement to a position that does not exist

Being fired from a position that no longer exists can seem hopeless.  However, Ukrainian legislation guarantees employees the right to return to work, even if the position they held was eliminated.

Reinstatement is the cancellation by the employer of the dismissal order and reinstatement of the employee in the previously held position.

Procedure for reinstatement:

1. Appeal to the court. An employee who considers his dismissal illegal has the right to apply to the court for reinstatement. The right to apply to the court for reinstatement is within 30 days from the day of dismissal.
2. The evidence. The plaintiff must provide the court with evidence confirming the illegality of the dismissal.
3. Consideration of the case by the court. The court considers the case according to the rules of simplified legal proceedings.
4. Judgment. If the court finds the dismissal illegal, it issues a decision on the employee's reinstatement.

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Reparation:

• If the court reinstates you, you may also be entitled to damages for wrongful dismissal.\
• The amount of damage is determined by the court taking into account all the circumstances of the case.

What to do if the position is reduced

If the position held by the employee is reduced, the employer is obliged to offer him another vacant position at the same or another enterprise owned by the employer.

Judicial practice:

• Judicial practice shows that courts, as a rule, recognize the employee's right to reinstatement, even if the position he held does not exist at the time of reinstatement (Decision of the Supreme Court as part of the panel of judges of the Cassation Administrative Court dated April 13, 2023, in case No. 540/3994/20 (administrative proceeding No. K/990/5681/22)

If the employee was not reinstated, he has the right to:

• Compensation for forced absenteeism.
• Penal sanctions against the employer for violation of labor legislation.
• Appeal to the bodies of the state labor inspection.
• Appeal to the trade union.

Alternative ways of protecting rights:

• Negotiations with the employer.
• Appeal to the mediator.
• Appeal to the ombudsman on human rights issues.

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Compensation in lieu of renewal:

• You may agree to receive compensation in lieu of reinstatement.
• The amount of compensation is determined by the agreement of the parties or by the court.

Each case of reinstatement is unique and requires careful analysis by a lawyer. Contacting a lawyer will help you draw up documents correctly, protect your rights and interests.  Remember that knowing your rights and being able to protect them will help you avoid injustice and defend your interests.

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