Failure to Inform About Vacancies Does Not Affect Termination of Fixed-Term Contract – Supreme Court
The Supreme Court in case No. 757/459/24-ts formulated an important legal position regarding the application of labor legislation provisions on fixed-term employment contracts.
The Labor and Employment Inspection of the Dnipro City Council reminded that according to part three of article 23 of the Labor Code of Ukraine, the employer is obliged to inform employees working under fixed-term employment contracts about vacancies that correspond to their qualifications and provide the possibility of concluding an indefinite employment contract.
In practice, the question arose: can the employer's failure to fulfill this obligation be grounds for recognizing the dismissal as unlawful after the expiration of the fixed-term contract?
The Supreme Court gave a clear answer: it cannot.
The Court concluded that the employer's failure to inform the employee about available vacancies:
- does not extend the duration of the fixed-term employment contract;
- does not convert the fixed-term employment contract into an indefinite one;
- does not change the legal basis for the termination of employment relations;
- does not prevent the dismissal of the employee due to the expiration of the fixed-term contract.
Thus, if the fixed-term contract has expired, the employer has the right to terminate the employment relations based on paragraph 2 of part one of article 36 of the Labor Code of Ukraine. The mere fact that the employee was not informed about vacant positions does not indicate the illegality of such dismissal.
At the same time, this legal position does not mean that the employer is released from the obligation to comply with the requirements of part three of article 23 of the Labor Code of Ukraine. The obligation to inform about vacancies remains valid and must be fulfilled. However, its violation alone does not create the employee's right to demand the extension of the fixed-term contract or reinstatement after its expiration.
The practical significance of the decision lies in distinguishing:
- the employer's obligation to inform about vacancies;
- the grounds for termination of the fixed-term employment contract.
The Supreme Court emphasized that these legal relations are not identical, and therefore the violation of the first obligation does not affect the legal consequences related to the expiration of the fixed-term employment contract.
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