ON THE QUESTION OF REMEDIES AVAILABLE TO THE EMPLOYEE IN CASE OF UNLAWFUL DISMISSAL

In: Bulletin of Taras Shevchenko National University of Kyiv. Legal Studies, Heft 122, S. 12-15

Abstract

The article, on the basis of scientific doctrine, legislation of Ukraine, as well as judicial practice, examines certain issues related to the protection of an employee from wrongful dismissal in Ukraine, particularly, regarding the peculiarities of the application of such a remedy as reinstatement in the Ukrainian legal order. The authors emphasize the existence of a functional connection between the right to work, enshrined in the Constitution of Ukraine, and the employee's right to apply for protection in case of a wrongful dismissal by the employer. The article indicates the means of protection that can theoretically be applied by an employee who has been dismissed in violation of the requirements of the law. It is noted that reinstatement, based on the provisions of the legislation of Ukraine, can be considered the leading remedy available to the employee in case of a wrongful dismissal. At the same time, the authors note that the Labor Code of Ukraine does not provide the employee with an opportunity to choose a remedy that would reflect the needs of the particular employee in the most sufficient way. The article also attempts to explain the legal nature of reinstatement from the point of view of legal facts theory. In addition, the authors note that the proposed approach to the analysis of reinstatement allows explaining the compensation of average earnings for the period when the employee did not work because of the wrongful dismissal. This compensation can be interpreted as a natural consequence of reinstatement. At the same time, attention is focused on certain aspects of the relationship between the reinstatement of the employee and the payment to the employee of average earnings during the period of forced absenteeism. The article also describes the attitude of certain international organizations to reinstatement in the context of assessing the level of protection of employees under certain jurisdiction.