An employee submitted a resignation letter and did not come to work — the Supreme Court explained the consequences

In the case concerning the dismissal of the head of the CNAP department, the Supreme Court concluded that after the employer's refusal to satisfy the resignation request under part 3 of article 38 of the Labor Code of Ukraine (LCU), the employee is not released from the obligation to comply with labor discipline and to come to work. Absence from the workplace without valid reasons under such circumstances may be grounds for dismissal due to absenteeism.

This conclusion was reached by the Supreme Court in the composition of the panel of judges of the Cassation Administrative Court.

Case circumstances

The dispute arose between the head of the department ensuring the activities of the Administrative Services Center in Khmilnyk and the local self-government body.

The official was reinstated twice by court decisions after previous orders for her dismissal were declared illegal. After the latest reinstatement, she submitted a resignation letter based on part 3 of article 38 of the LCU, citing violations of labor legislation by the employer, confirmed by court rulings on her reinstatement.

The mayor refused to satisfy the resignation request under part 3 of article 38 of the LCU. At the same time, the employer complied with the court decision on the employee's reinstatement, created a workplace for her, and informed her of the need to start performing her duties. However, the employee did not come to work. Later, she was dismissed under point 4 of part 1 of article 40 of the LCU — for absenteeism without valid reasons.

Disagreeing with this decision, she appealed to the court. The plaintiff insisted that after submitting the resignation letter due to the employer's violation of labor law, she was not obliged to come to work, and therefore there were no grounds for dismissal due to absenteeism.

What the courts decided

The court of first instance and the appellate court denied the claim.

The courts concluded that the employer lawfully dismissed the employee for absenteeism, as her absence from work without valid reasons was confirmed by the case materials.

Supreme Court's position

When reviewing the case, the Supreme Court referred to its established practice regarding the application of part 3 of article 38 of the LCU.

The court recalled that an employee has the right to demand dismissal within a specified period if the employer does not comply with labor legislation. The Supreme Court confirmed the previously formed approach that for dismissal under part 3 of article 38 of the LCU, the mere fact of the employer's non-compliance with labor legislation is sufficient. At the same time, the materiality of such violation, its consequences, or subsequent remedy do not have decisive significance for the application of this provision.

At the same time, the panel of judges noted that the subject of the dispute in this case was not actually the employee's right to dismissal under part 3 of article 38 of the LCU, but the lawfulness of her subsequent dismissal for absenteeism.

The Supreme Court established that the employee was aware of her reinstatement, knew about the creation of a workplace for her, and was informed of the need to start performing her duties. In addition, the employer separately notified her of the refusal to satisfy the resignation request.

According to the Court, during the consideration of the resignation request by the employer and after notification of refusal, the labor relations between the parties did not terminate. Accordingly, the employee remained obliged to comply with labor discipline and perform her labor duties.

Since the plaintiff did not appear at work from April 4 to April 7, 2023, and did not provide confirmed valid reasons for her absence, new legal relations arose between the parties, related no longer to the resignation request but to violation of labor discipline. Under such circumstances, the employer had the right to apply point 4 of part 1 of article 40 of the LCU and dismiss the employee for absenteeism.

Supreme Court's conclusion

The Supreme Court in case No. 120/6314/23 dismissed the cassation appeal and agreed with the conclusions of the lower courts regarding the legality of the employee's dismissal for absenteeism.

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