Employee Dismissed for Absence During Remote Work: Supreme Court Defined the Limits of Evidence Evaluation

If an employer dismisses an employee for absence, the court cannot recognize such dismissal as lawful by actually referring to another ground — failure or improper performance of job duties. This conclusion was reached by the Civil Cassation Court of the Supreme Court, which annulled the appellate court’s ruling in a dispute regarding the dismissal of a company’s general director.

The court also noted that remote work mode itself does not exempt an employee from the obligation to perform their job functions. At the same time, it is the employer’s responsibility to prove the existence of a lawful ground for dismissal, and the court, when considering a labor dispute, is not entitled to recognize the dismissal as lawful based on circumstances not cited by the employer in the dismissal order.

Case Circumstances

The plaintiff worked as the general director of the company since 2017. In August 2023, he was dismissed under paragraph 4 of part one of article 40 of the Labor Code of Ukraine — for absence without leave.

The employee disagreed with the dismissal and appealed to the court. He stated that in June 2022, remote work was introduced at the enterprise for the duration of martial law. According to the order, he had the right to independently determine his workplace, informed the employer of the address from which he would work, and claimed that he performed his duties remotely during this entire period. Additionally, the plaintiff indicated that the dismissal order was signed by a person who, in his opinion, did not have the appropriate authority, and that a final settlement was not made upon his dismissal.

The employer, in turn, argued that the employee was absent from the enterprise on August 23, 24, and 25, 2023. Based on inspections, absence reports were drawn up, an official investigation was conducted, after which the employment contract was terminated under paragraph 4 of part one of article 40 of the Labor Code of Ukraine.

Decisions of Lower Courts

The district court denied the claim. In particular, it questioned the order introducing remote work due to violations of its registration rules and concluded that the plaintiff did not refute the fact of absence without leave.

The appellate court amended the reasoning part of the decision. It noted that the mere fact of violation of the order registration rules does not make it inadmissible evidence, but left the denial of the claim unchanged.

The appellate court reasoned that although remote work was introduced, the plaintiff did not prove actual performance of work remotely during the disputed period. According to the court, the case materials did not contain evidence of him performing job duties remotely, and the plaintiff himself could not explain what work he performed.

Supreme Court’s Conclusions

The Civil Cassation Court disagreed with these conclusions.

The Supreme Court noted that the employer dismissed the employee precisely for absence without leave, i.e., absence from work without valid reasons. However, the appellate court, while leaving the denial of the claim unchanged, actually justified the legality of the dismissal by the fact that the plaintiff did not prove proper performance of work remotely.

According to the Civil Cassation Court of the Supreme Court, in this way the appellate court effectively substituted the grounds for dismissal.

The court emphasized that the assessment of possible failure or improper performance of job duties cannot replace the verification of the legality of dismissal for absence without leave. If the employer dismissed the employee under paragraph 4 of part one of article 40 of the Labor Code of Ukraine, the court must verify the existence of grounds specifically for such dismissal, and not justify it by other circumstances not mentioned by the employer in the dismissal order.

The Supreme Court also noted that neither the order introducing remote work nor the job description of the general director provided for the employee’s obligation to report on the work performed remotely. Moreover, the case materials do not contain evidence of the employer’s proper organization of remote work, in particular the definition of communication and interaction procedures between the parties.

Separately, the Civil Cassation Court emphasized that according to ILO Convention No. 158 and established Supreme Court practice, it is the employer’s responsibility to prove the existence of a lawful ground for dismissing an employee. At the same time, the court is not entitled to recognize the dismissal as lawful based on circumstances unrelated to the dismissal by the employer.

Supreme Court’s Ruling

In case 538/1991/23, the Supreme Court concluded that the appellate court prematurely resolved the dispute, incompletely established circumstances relevant to the correct resolution of the case, and violated procedural law norms.

As a result, the Civil Cassation Court partially satisfied the employee’s cassation appeal, annulled the decision of the Poltava appellate court, and sent the case for a new hearing to the appellate court.

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