The Supreme Court confirmed the dismissal of an employee who did not come to work for 3 months due to a blocked account

In Ukraine, according to Article 40 of the Labor Code, there is a possibility to dismiss an employee for absenteeism without valid reasons. At the same time, such grounds for dismissal are permissible only if there is proper documentary evidence of the employee's absence from work and verification of the reasons for such absence.

These provisions of labor law became key in case No. 757/50231/24-ts, which was reviewed by the Supreme Court.

Considering the case, the Civil Cassation Court as part of the Supreme Court confirmed the legality of the dismissal of an employee of a Limited Liability Company who was absent from work for almost three months and did not prove valid reasons for his absence.

Circumstances of the case

As stated in the case materials, the employee held the position of logistics manager at the LLC, and by order dated September 30, 2024, he was dismissed based on paragraph 4 of part one of Article 40 of the Labor Code of Ukraine — for absenteeism without valid reasons.

Disagreeing with the dismissal, the plaintiff appealed to the court. He claimed that he could not perform his job duties due to the employer's actions, who allegedly blocked his access to the work account. The plaintiff also insisted that the employer effectively changed essential working conditions without his consent.

In this regard, the plaintiff requested to declare the dismissal order invalid, reinstate him at work, and recover average earnings for the entire period of forced absenteeism.

The courts of first and appellate instances denied the claims. The courts established that the employee's dismissal was carried out in accordance with the requirements of the Labor Code of Ukraine, since after July 5, 2024, he did not appear at work without valid reasons. Circumstances objectively preventing his attendance at work were not established.

Position of the Supreme Court

The Supreme Court agreed with the conclusions of the courts of first and appellate instances that the contested decisions were made in compliance with substantive and procedural law, and the arguments of the cassation appeal did not refute them. The court reminded that absenteeism is considered the absence of an employee at work for more than three hours during the working day or the entire working day without valid reasons.

At the same time, the main criterion for valid reasons is the presence of objective circumstances beyond the employee's control that completely exclude his fault.

The court noted that according to Article 139 of the Labor Code of Ukraine, an employee is obliged to conscientiously perform labor duties and observe labor discipline. At the same time, paragraph 4 of part one of Article 40 of the Labor Code of Ukraine provides for the possibility of terminating the employment contract in case of absenteeism, in particular absence from work for more than three hours during the working day without valid reasons.

The court emphasized that absenteeism is the absence of an employee at work without valid reasons for more than three hours (continuously or cumulatively during the working day).

The Supreme Court stressed that to dismiss an employee for absenteeism, the employer must properly document the fact of the employee's absence from work and clarify the reasons for such absence. The act of absence is drawn up directly on the day of absenteeism indicating the date and time of absence. At the same time, only those reasons that arose due to objective and independent of the employee's will circumstances and actually made his appearance at work impossible can be considered valid.

The Supreme Court noted that in this case the employer proved the fact of the employee's absence from work for a long time, and the employee himself did not provide evidence of valid reasons for such absence.

In the cassation appeal, the applicant referred to the fact that the employer illegally changed essential working conditions, and therefore his dismissal should have been carried out under paragraph 6 of part one of Article 36 of the Labor Code of Ukraine — due to refusal to continue work under new conditions.

The court emphasized that the subject of the dispute was precisely the dismissal for absenteeism, not the legality of changing essential working conditions.

Therefore, the court only examined the presence or absence of absenteeism and valid reasons for absence from work. Having established that the employee was absent without valid reasons from July 8 to September 30, 2024, the Supreme Court found no grounds to cancel the decisions of the previous instances.

The Supreme Court left the cassation appeal without satisfaction, and the decisions of the courts of first and appellate instances unchanged.

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