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Beware of the Recruitment Trap

Date of publication: 10 October 2020

Valeriia Gudiy, Counsel, Attorney at Law

Source: EBA

A cautionary story for employers about how, due to an allegedly petty formality, they may have to start paying wages for a year of work which in fact was not done.

The “portfolio” of court precedents in the sphere of labor disputes was supplemented by the new case. It is about how to make an easy use of the law to one’s own advantage and avoid working responsibilities, fail to appear at work, ignore the requests employer and make him pay the money through the court. The key to success in such a case is the lack of documents on familiarization of an employee with his workplace.

An important detail

The story begins when the company issued an order according to the standard form No. P-1 (approved by the order of the State Statistics Service of Ukraine No. 489 dated 05 December 2008) on the admission of a new employee. Later the employee was sent on a business trip, which he really made for a short period of time. After returning from his trip the employee failed to proceeded with his employment duties, did not return to the company’s premises and, consequently, never signed any documents.

The company faced a situation when it was necessary to do something, and it decided to dismiss the violator on the basis of his unauthorized absence. In response, the employee filed a lawsuit substantiating his position by the fact that he thought that he was supposed to be working from home.

Neither the employment application, nor the appointment order, contained the information on the claimant’s right to work from the place of his residence or another place outside the employer’s premises. It’s strange but the judges of the Court of Appeal fell for the explanation: they reinstated the employee in his position and awarded settlement of the employee’s average earnings – almost a quarter million hryvnia – compensation for more than a year without any work.

The position of the court

The employee did not agree with the order for dismissal for his unauthorized absence, because during the employment process he was not familiarized with his rights and responsibilities, internal labor regulations: no work place was assigned to him, as well as he was not provided with any means to work. Thus, the claimant allegedly believed that he was supposed to work from the place of his residence, except for the periods of performance of his special occupational tasks, and, therefore, had never attended the place of his employer’s location. The employee took a comfortable position, motivating the claims “by the agreement between the parties about the terms of the performance by the claimant of his work duties from his place of residence”.

Considering the court decision in the case, the panel of judges of the Court of Appeal noted that the case files really lack evidence of the claimant’s familiarization with his job description, internal labor regulations and other rules in force at the company, including the proof of explanation by the employer of labor rights and responsibilities to the claimant, in particular, about the assignment of his work place. Consequently, the employer – in accordance with Article 29 of the Labor Code of Ukraine (hereinafter – the Labor Code) – failed to assign a workplace to the employee, and therefore the court did not put the blame onto the employee for his absence at his workplace, location of which was not notified to him.

Invalidating the order for the employee’s dismissal for his unauthorized absence the court also assumed that the employer failed to disprove the fact of the claimant’s performance of his work duties from his actual place of residence.

In word and deed

Based on the precedent a conclusion may be made that in the employment relationships an employee is perceived as a weaker party, rather than an employer. Therefore, the employers cannot neglect even the smallest formal responsibilities established by labor law.

Article 29 of the Labor Code of Ukraine establishes an obligation for the employer: prior to the employee’s start of his work under an employment contract:

  1. to familiarize the employee with his rights and responsibilities;
  2. to inform the employee, against signature, about his working conditions, any dangerous and harmful production factors that have not yet been removed, and the possible consequences of their impact on health, his rights to benefits and compensation for work in such conditions in accordance with current legislation and the collective agreement;
  3. to familiarize the employee with the internal labor regulations and the collective bargaining agreement;
  4. to determine the employee’s workplace, provide the employee with the necessary means to work; and
  5. to instruct the employee about safety rules, industrial sanitation, occupational health and fire protection.

Performance of all the above obligations must be approved and registered in writing.

The lack of fulfillment of the above obligations in writing – often due to human error or carelessness, as shown on the basis of the results of the lawsuit in question, – may prove to be costly. Nothing stands in the way of the opportunistic person allowing him to take advantage of human errors or inattention and create legal preconditions for obtaining additional benefits from his employer or ex-employer through the competent manipulation of the situation.

Based on its experience Ilyashev and Partners recommends the employers (as a measure of precaution) to periodically carry out due diligence of HR records to protect themselves from future financial and reputational risks. To understand if your company maintains HR records in accordance with the requirements of labor law, it is enough to ask your HR manager for the documents confirming the assignment of a workplace to the employee and his familiarization with such a workplace.

If your company does not have a document confirming the fact of assignment of a workplace to the employee and his familiarization with such a workplace, your company is at risk and may at any time receive claims from the opportunistic employee.