Clarification from Ombudsman on issues related to labour disputes

Extracts for legal literacy News

In its efforts to increase legal awareness of citizens, the Ombudsman traditionally pays special attention to various forms of legal advice to citizens.

All working citizens to a greater or lesser extent need to protect their labour rights. Entering into an employment relationship, the employee and the employer are vested with certain rights and obligations. In practice, there are often cases of violation of an employee’s rights by the employer.

Protection of labour rights is allowed by all means not prohibited by law.

In accordance with Art. 221 of the Labor Code of Ukraine (as revised in the territory of the Donetsk People’s Republic), labour disputes are considered by:

  1. labour dispute committee;
  2. Regional, district and city courts.

So, the labour dispute committee (hereinafter – the LDC) is the primary (pre-trial) body for the consideration of labour disputes arising between an employee and an enterprise (organization, institution) with the exception of disputes for which the legislation establishes a different procedure for their resolution.

If there is an LDC at an enterprise (organization, institution), the employee has the right to file a complaint about a violation of labour legislation.

The LDC considers individual labour disputes arising between an employee and an employer regarding the application of laws and other legal acts on labour, a collective agreement, an employment contract (including the establishment or amendment of individual working conditions) if the employee has not resolved the disagreement through direct discussion with the employer.

Thus, in the event of a labour dispute, the consideration of which is within the competence of the LDC created at an enterprise, an employee must submit an appropriate application to the LDC, which examines it on the merits. If the employee does not agree with the decision of the LDC, he/she can appeal it in court, because according to Articles 39, 80 of the Constitution of the DPR, everyone is guaranteed judicial protection of his/her rights and freedoms. Consequently, even if a company has the LDC, employees have the right to choose whether to apply to the committee or directly to court to resolve the dispute.

In order to avoid litigation, it is better to resolve disputes through negotiation. But, unfortunately, in practice, there are frequent cases of unfair behaviour of employers in relation to employees. In this case, the employee must contact the relevant state bodies to protect their rights.

It is important to note that when applying to the court for the protection of violated labour rights in accordance with paragraph 1 of Part 2 of Art. 5 of the Law of the DPR “On Court Fees” the plaintiffs are exempted from paying the court fee – in complaints about the recovery of payment and other complaints related to labour relations.

In accordance with Article 233 of the Labor Code of Ukraine, there are the following deadlines for applying to the court.

  1. An employee may apply for a resolution of a labor dispute directly to a regional, district, city or municipal and district court within three months from the day when he/she learned or should have learned about a violation of his/her right, and for dismissal cases within a month from the day of delivery of a copy of the order of dismissal or from the date of return of the work record book.
  2. In case of violation of the legislation on the remuneration of labour, an employee has the right to apply to the court with a claim for the recovery of payment due to them without any time limit.
  3. The head of an enterprise or the body authorized by him/her may take legal action to recover material damage caused to the enterprise, institution, organization within a period of one year from the day of identifying the damage caused by the employee.
  4. The term established by part three of this article shall also apply when applying to a court of a higher authority.

According to Article 234 of the Labor Code of Ukraine, in case of absence due to valid reasons established by Article 233 of the Labor Code of Ukraine, a region, district, city or municipal and the district court may extend the term.

In addition, if there is no LDC at the enterprise (organization, institution), and if the employee’s rights were somehow violated by the employer, the employee has the right to turn to the State Inspectorate for compliance with labour legislation of the Donetsk People’s Republic (hereinafter referred to as the DPR GOSTRUD) with a written complaint, where it is necessary to indicate the violation of labour rights committed by the employer.

According to the Regulation on the DPR GOSTRUD, the purpose of the DNR GOSTRUD is to ensure compliance with labour legislation at enterprises, institutions and organizations of all forms of ownership.

DPR GOSTRUD resolves not only issues arising in the field of social and labour relations, but also develops effective interaction between the state, employers and employees. In this regard, DPR GOSTRUD ensures that employers comply with labour legislation and other legal acts dealing with labour law, labour protection, and also exercises state supervision and control.