The law guarantees preservation of average amount of income for all the period of military service and establishes responsibility for those employers that violate it. Effectiveness of the law directly depends on determination of soldiers to assert their rights. The Legal Space team helps with it. The lawyer of Kherson Regional Charity and Health Foundation Volodymyr Orlovsky told the journalist of Deutsche WelleGalyna Stadnik about experience of protection of the rights of mobilized citizens.
Fight till victory
The resident of Lviv Mykola Malanich served in ATO zone for 14 months. The man went to Luhansk region within the first wave of mobilization, in August, 2014, together with his brothers. In Lviv the man left the wife and three daughters, and the position of the first deputy of the State Inspection of Agriculture in Lviv region. "As soon as they learned that I was going to defend the country in eastern regions, I was fired. Without preservation of neither salary nor the position. Considering the fact that I personally reported about my mobilization to the management", Mykola Malanich told in the interview with DW.
Half a year of judicial proceedings and high level of publicity in mass media was needed to renew justice. However, according to the interlocutor the case is not completed yet, it is to be considered in the Supreme Administrative Court. Though the first instance completely satisfied the claim of the mobilized soldier and obliged the State Inspection of Agriculture to pay the owed salary and to reinstate him in employment, the appellate court abolished this decision.
However, the demobilized soldier is determined to win the case: "I have appealed against the decision in the highest authorities; I will prove society and the state that ATO combatants have the right to preservation of employment. I won't return back because I consider them traitors", Malanich noted.
Though there is no final decision in the case yet, the management already paid Mykola the owed salary.
You are not to write a resignation notice
“Cases of violations of the right of mobilized persons to employment are quite numerous”, Volodymyr Orlovsky commented. "I have been engaged in supporting three similar cases, besides, I provide a lot of consultations on the issue by phone. My clients are both ATO participants and employers”.
The lawyer noted that the mobilized person can count only on an official salary, it does not deal with envelope wages that is rather widespread practice in Ukraine. Finally, it is almost impossible to prove in court that you were forced to write a resignation notice after the employer’s promise to reinstate you in employment after the end of the active service.
Firing is unprofitable
Before breaking the law and firing mobilized citizens Volodymyr Orlovsky advises employers to count expenses well. "It is not favorable at all. The employer is threatened by a considerable penalty, he also must pay wages the state will never compensate, moral harm and the severance pay which will never be returned, too", Orlovsky explained. “All this is possible, of course, under a condition of persistent asserting your rights. Usually, mobilized persons have nothing to lose, and they actively file claims”, the lawyer added. If the employer is conscientious and regularly pays the mobilized person wages, he has the right to count on the state compensation".
Violation proceeds from ignorance?
According to the lawyer, the employer’s legal unawareness is the main reason for violations of the labor law of mobilized persons. "Just one norm that provides preservation of employment and average amount of income has been modified and supplemented five times since spring of last year”, Orlovsky explained. – “Also take into account legal collisions unfair employers could use to fire soldiers".
The lawyer is convinced that if to eliminate these preconditions - inconsistency of legislative modifications, shortage of explanations for employers - cases of violations would be not so many. However, if the employer does it consciously, without reacting to the complaint, the only thing that remains is to file a claim in court and the State Labor Inspection.
Source: Deutsche Welle
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