Re-dismissal of an employee: clarification of changes to the Labor Code called controversial due to Supreme Court practice

The Verkhovna Rada is considering draft law No. 15091, which proposes to clarify the procedure for re-dismissing an employee at the initiative of the employer.

The draft law proposes to supplement Article 40 of the Labor Code of Ukraine with a provision according to which, in the case of repeated dismissal under paragraph 1 of the first part of this article, the employer is obliged to perform again all actions provided by labor legislation that precede the procedure of employee layoff.

At the same time, the initiative has already received remarks regarding its necessity.

The procedure is already mandatory

The Verkhovna Rada emphasized that the current Labor Code already contains exhaustive regulation of the grounds and procedure for dismissal. Currently, the procedure is universal and applies regardless of whether the dismissal is primary or repeated.

According to Article 40 of the Labor Code of Ukraine, an exhaustive list of grounds for termination of an employment contract at the initiative of the employer is defined.

According to the current wording of the norm, an employment contract concluded for an indefinite period, as well as a fixed-term employment contract until the expiration of its term, may be terminated by the employer only in cases explicitly provided by law.

Among such grounds are, in particular:

• changes in the organization of production and labor, including liquidation, reorganization, bankruptcy, or re-profiling of the enterprise, institution, or organization, as well as reduction in the number or staff of employees;
• detected mismatch of the employee to the position held or work performed due to insufficient qualifications or health condition, as well as refusal or cancellation of access to state secrets, if this is a necessary condition for performing the work;
• systematic failure by the employee to perform labor duties without valid reasons, provided that disciplinary measures have been previously applied to him;
• absenteeism (including absence from work for more than three hours during the working day) without valid reasons;
• absence from work for more than four consecutive months due to temporary incapacity (except for certain cases provided by law), while for employees who lost their ability to work due to occupational injury or occupational disease, the workplace is preserved until recovery or establishment of disability;
• reinstatement of an employee who previously performed this work;
• appearance at work under the influence of alcohol, drugs, or toxic substances;
• committing theft of the employer's property at the workplace (including petty theft), established by a court verdict that has entered into legal force, or a decision of an authorized body imposing an administrative penalty.

In addition, Article 49-2 of the Labor Code of Ukraine establishes the procedure for layoffs in cases of changes in the organization of production and labor. The norm provides that employees must be personally warned about the upcoming dismissal no later than two months in advance.

Together with the dismissal warning, the employer must offer the employee another job at the same enterprise. If such work is not available or the employee refuses the transfer, he may independently contact the employment service or look for a job on his own.

Regarding the sufficiency and effectiveness of the current regulation, the position of the Supreme Court in case No. 761/40406/23 (ruling dated July 30, 2025) is cited, according to which, in the case of reinstatement of an employee and subsequent repeated dismissal under paragraph 1 of the first part of Article 40 of the Labor Code of Ukraine, the employer is obliged to fully comply with the general procedure for layoffs, in particular to issue a new personal warning, offer available alternative work, and perform other procedures provided by law.

The Supreme Court holds that the current legal regulation is sufficient and should be applied in cases of repeated dismissal, and the requirements regarding the layoff procedure are equally mandatory regardless of whether the dismissal occurs for the first time or after the employee's reinstatement.

Thus, the current legislation of Ukraine establishes a single and mandatory procedure for layoffs in all cases of termination of an employment contract at the initiative of the employer due to changes in the organization of production and labor, including staff reduction. This procedure also applies in cases of dismissal of an employee after reinstatement by court decision.

In this regard, the provisions proposed in the draft law are considered controversial in the Verkhovna Rada, since the current labor legislation already regulates the procedure for layoffs, including in cases of changes in the organization of production and labor, regardless of whether it is a primary or repeated dismissal.

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