Challenging Unlawful Dismissal

Challenging Unlawful Dismissal

Not every dismissal that an employee disagrees with is automatically unlawful. It is necessary to review the specific ground stated in the dismissal order, the actual circumstances, and the documents used by the employer to justify the decision. Grounds for challenging a dismissal may arise if:

• the dismissal was carried out without a lawful basis;
• the employer violated the required procedure;
• the employee was forced to submit a resignation letter “of their own free will”;
• the statutory requirements for redundancy were not followed;
• a disciplinary dismissal is not supported by sufficient evidence;
• the employee was not provided with guarantees required by law;
• the ground stated in the dismissal order does not correspond to the actual circumstances;
• the dismissal was based on discriminatory or other unlawful motives;
• HR documents were prepared incorrectly;
• other violations of labor law occurred.

Benefits of Working with Prikhodko & Partners

We help:

• review the dismissal order;
• analyze the legal basis for termination of employment;
• assess whether the employer complied with the required procedure;
• collect and preserve evidence;
• prepare a statement of claim;
• calculate possible payments;
• prepare claims for reinstatement;
• seek correction of the wording of the dismissal;
• represent the employee in court;
• support enforcement of the court decision.

Which Documents Are Needed to Review a Dismissal

The following may be required first:

• the dismissal order or instruction;
• the employment agreement;
• the job description;
• HR orders;
• employee applications or statements;
• employer notices;
• timesheets;
• acts and internal memoranda;
• disciplinary documents;
• pay statements;
• correspondence with the employer;
• redundancy-related documents;
• other materials relating to the specific ground for dismissal.

If some documents remain with the employer, this does not mean that the employee cannot protect their rights. It is necessary to determine which evidence is already available and which documents can be requested during preparation or consideration of the case.

Time Limit for Challenging an Unlawful Dismissal

Under the current Article 233 of the Labor Code of Ukraine, in a dismissal case an employee has the right to apply to court within one month from the date the employee receives a copy of the dismissal order or instruction. Therefore, after receiving the dismissal order, it is not advisable to spend too much time on internal negotiations with the employer. If the deadline was missed for valid reasons, the law provides the possibility of asking the court to restore it. However, this issue is assessed separately and must be properly justified.

In employment disputes involving dismissal, it is especially important not to delay the review of documents. Even a strong legal position may become more difficult if the special deadline for applying to court is missed.

What to Do Immediately After Dismissal

After dismissal, it is advisable to:

1. Obtain a copy of the dismissal order.
2. Preserve HR documents already available to the employee.
3. Download or save work correspondence and other available evidence.
4. Check the wording of the ground for dismissal.
5. Record the date on which the dismissal order was received.
6. Check the final settlement.
7. Obtain documents concerning accrued salary and other payments.
8. Provide the materials to a lawyer for legal analysis.

If the employer offers additional documents for signature after dismissal, their contents should also be reviewed before signing.

Claim to Declare a Dismissal Unlawful

The claim describes:

• the employment relationship between the parties;
• the employee’s position;
• the circumstances of the dismissal;
• the ground stated by the employer;
• procedural violations;
• evidence supporting the unlawfulness of the decision;
• the consequences of the dismissal;
• the employee’s specific claims;
• calculation of payments where necessary.

Using a universal claim template for unlawful dismissal without adapting it to the case is risky. A claim involving redundancy, disciplinary dismissal, or coercion to resign “of one’s own free will” is based on different circumstances and evidence.

Which Claims May Be Brought Before the Court

Possible claims include:

• declare the dismissal unlawful;
• cancel the dismissal order;
• reinstate the employee in the previous position;
• change the wording of the reason for dismissal;
• change the dismissal date;
• recover average earnings for the period of forced absence from work;
• recover other payments due;
• correct information in employment records;
• bring other claims depending on the circumstances of the case.

The Labor Code provides for reinstatement of an employee in the previous position if the dismissal was made without lawful grounds, as well as resolution of the issue of average earnings for the period of forced absence.

Average Earnings for the Period of Forced Absence

Under Article 235 of the Labor Code, when ordering reinstatement, the court simultaneously decides the issue of payment of average earnings for the period of forced absence. The law also provides a special rule for cases in which proceedings last more than one year through no fault of the employee. The following may be relevant for the calculation:

• the amount of salary before dismissal;
• the calculation period;
• bonuses and other payments;
• the dismissal date;
• the date of actual reinstatement;
• the duration of the proceedings;
• other data affecting average earnings.

The exact calculation should be prepared on the basis of payroll documents.

Dismissal During Sick Leave, Vacation, or Martial Law

Not every dismissal during temporary incapacity for work, vacation, or martial law is automatically unlawful. Therefore, the assertion that any dismissal during sick leave, vacation, or because of wartime circumstances is automatically unlawful may be incorrect. It is necessary to assess:

• the specific ground for dismissal;
• the date of termination of employment;
• the category of employee;
• the type of leave or period of temporary incapacity;
• special provisions of labor law;
• rules applicable during martial law;
• whether the employer complied with the required procedure.

For example, since 2025 the law separately prohibits dismissal for absenteeism under paragraph 4 of part one of Article 40 of the Labor Code where the employee’s workplace is located in an area of active hostilities and the employee is absent from work.

Special Guarantees for Certain Employees

For example, labor legislation establishes special guarantees for pregnant employees, employees with children in cases defined by law, and other categories. However, whether a specific guarantee applies depends on:

• the employee’s category;
• the ground for dismissal;
• the type of employment relationship;
• documents confirming the relevant status;
• the specific circumstances of the dismissal;
• the applicable special provisions of law.

Therefore, membership in a certain category must be supported by documents and assessed together with the specific ground for termination of the employment agreement.

Which Evidence Should Be Preserved

This may include:

• email correspondence;
• messages in corporate messengers;
• orders and notices;
• internal memoranda;
• documents confirming performance of work;
• timesheets and schedules;
• documents concerning work results;
• records of conversations where they may lawfully be used as evidence;
• payment information;
• witness contact details;
• other materials relating to the circumstances of dismissal.

They should be collected as early as possible because after access to corporate email or internal systems is terminated, some information may become unavailable to the employee.

Legal Assistance with Unlawful Dismissal

Legal assistance may include:

• analysis of the ground for dismissal;
• review of the dismissal order and HR documents;
• assessment of compliance with procedural deadlines;
• development of the evidence base;
• preparation of attorney requests;
• preparation of the statement of claim;
• calculation of average earnings and other payments;
• representation in court;
• preparation of procedural documents;
• support with enforcement of the court decision.

Cost of Legal Assistance

The cost is affected by:

• the ground for dismissal;
• the volume of HR documents;
• the need to obtain additional evidence;
• whether the deadline for applying to court has been missed;
• the need to calculate average earnings;
• the number of claims;
• the complexity of the employment dispute;
• the number of court hearings;
• the need for appellate or cassation proceedings;
• the scope of further legal support.

In one case, analysis of the dismissal order and preparation of the claim may be sufficient. In another, the employment dispute may require collection of a substantial amount of evidence and representation before several court instances.

Common Situations When Challenging a Dismissal

Conclusion

Challenging an unlawful dismissal requires a prompt review of the legal basis for termination of employment, HR documents, and the employer’s compliance with the required procedure. A special time limit applies to such cases, so after receiving the dismissal order it is important to collect evidence promptly, determine the appropriate claims, and prepare the legal position.

Do you believe you were dismissed unlawfully? Submit a request on the Prikhodko & Partners Law Firm website. A lawyer will review the dismissal order and HR documents, assess the applicable deadlines, and prepare a strategy for reinstatement or recovery of the payments due to you.