Managers and deputies can be dismissed for personal use of official property — Supreme Court's position

The Supreme Court, in the composition of the panel of judges of the Second Judicial Chamber of the Cassation Civil Court, reviewing case No. 761/347/22-c, confirmed the legality of dismissing the deputy general director of a state enterprise who used the enterprise's official car for personal interests. The Court concluded that such actions constitute a gross violation of labor duties and can be grounds for termination of the employment contract.

Case circumstances

From the case materials, it is known that the plaintiff worked at the state enterprise since May 2020. Initially, he was the director of a department, and from July 2020 he was appointed deputy general director. In November 2021, the enterprise initiated an official investigation due to the use of the official Renault Sandero car. The investigation was related to questions about whether the official car was used for work or personal needs.

The results of the official investigation showed that the car was used for the official's personal purposes. Accordingly, on December 8, 2021, the employee was dismissed for a one-time gross violation of labor duties and the employment contract was terminated.

However, the plaintiff disagreed with the dismissal and appealed to the court. He requested to cancel the order, reinstate him in the position, and pay compensation for the forced absence period.

Additionally, the case materials indicate that on November 19, 2021, the enterprise driver, at the request of the deputy general director, twice drove him to addresses unrelated to work. In his explanations, the driver stated that after the end of the working day, the official ordered to leave the official car with the keys and documents.

Also, the enterprise commission established that the car was used for personal purposes. The documents (travel sheet) did not contain data about official trips or tasks that would justify this. During the investigation, the employee was offered to explain the situation but refused to answer questions and did not clarify the purpose of using the car.

In conclusion, the commission found that the official violated the internal rules of the enterprise, which allow the use of property (including official cars) only for work purposes.

Position of previous courts

The Pechersky District Court of Kyiv city denied the claim. The court recognized the fact of using the official car for personal purposes as proven and concluded that such actions constitute a one-time gross violation of labor duties. These conclusions were agreed upon by the Kyiv Court of Appeal, which noted that the employee was lawfully dismissed because he used the state enterprise's vehicle not for official needs.

In the cassation appeal, the plaintiff argued that the courts incorrectly applied the law, did not consider the Supreme Court's conclusions in other cases, and improperly examined the evidence. He also insisted that there were no grounds for applying the harshest disciplinary sanction against him.

Supreme Court's decision

The Supreme Court noted that according to Article 139 of the Labor Code of Ukraine, employees are obliged to work honestly and conscientiously, timely and accurately execute orders of the owner or authorized body, observe labor and technological discipline, comply with occupational safety regulations, and treat the owner's property, with whom the employment contract is concluded, with care.

Article 147 of the Labor Code of Ukraine provides that for violation of labor discipline, only one of the following disciplinary measures may be applied to an employee: reprimand or dismissal.

The Supreme Court also reminded that according to paragraph 1 of part one of Article 41 of the Labor Code of Ukraine, an employment contract may be terminated in case of a one-time gross violation of labor duties by the head of the enterprise or his deputy.

The Court emphasized that when assessing the severity of the violation, it is necessary to consider the nature of the offense, the circumstances of its commission, possible consequences, and the employee's guilt.

The Supreme Court drew attention to the fact that the plaintiff, as deputy general director, was entrusted with responsibilities to ensure the effective use of the enterprise's property and control over the use of official cars. Moreover, he was responsible for controlling the execution of the order regarding the use of official transport.

There was also a separate order at the enterprise that provided for the use of official cars exclusively for trips related to official necessity and subject to prior approval of such trips by management.

Under these circumstances, the Supreme Court agreed with the conclusions of the previous courts that the actions of the deputy general director constituted a one-time gross violation of labor duties, and therefore the employer had legal grounds to apply disciplinary action in the form of dismissal.

The use by the deputy general director of the state enterprise's official car for private interests contrary to official duties, the collective agreement, and internal enterprise orders can be regarded as a one-time gross violation of labor duties and be sufficient grounds for dismissal under paragraph 1 of part one of Article 41 of the Labor Code of Ukraine.

Accordingly, the Supreme Court dismissed the cassation appeal and left the decisions of the previous courts unchanged.

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