The Supreme Court clarified when a trade union can demand the dismissal of a manager: new interpretation of Article 45 of the Labor Code
The Grand Chamber of the Supreme Court, in the ruling on case No. 359/8573/20, formed an important legal position regarding the application of Article 45 of the Labor Code of Ukraine.
The Inspection on Labor and Employment Issues of the Dnipro City Council provides the Supreme Court's key conclusions:
Each primary trade union organization has the right to independently demand the dismissal of the enterprise manager, even if it:
— is not part of a joint representative body;
— did not participate in concluding the collective agreement.
All trade unions are equal in their rights according to the Constitution of Ukraine.
A trade union, making such a demand, protects not only its members but also the collective interests of all employees of the enterprise, regardless of union membership.
The demand for dismissal of a manager is an exclusive legal mechanism applied only in cases of the manager's violation of:
- labor legislation;
- legislation on collective agreements;
- the Law of Ukraine "On Trade Unions, Their Rights and Guarantees of Activity".
The trade union's demand must be thoroughly justified and contain specific facts of violations confirmed by evidence.
The Supreme Court emphasized: a formal or minor violation cannot be sufficient grounds for dismissing a manager.
The trade union cannot use Article 45 of the Labor Code as a tool to pressure the employer or as a mechanism of so-called "social blackmail."
The trade union itself must prove the presence of legal grounds for dismissal, just as the employer proves the legality of dismissing an employee.
The trade union's decision is not final — the manager or owner has the right to appeal it in court, and the execution of the demand is suspended until the court's decision is made.
Practical conclusion:
Article 45 of the Labor Code does not give the trade union an unconditional right to dismiss a manager. The court will verify the legality, validity, significance of the violation, and the balance of interests between employees, the owner, and the enterprise manager.
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