The Supreme Court explained when an employee can be lawfully dismissed for refusing to work in another city

The Civil Cassation Court of the Supreme Court concluded that the employee who refused to continue working after the change of workplace from Kyiv to Odesa was lawfully dismissed. The court noted that under the circumstances of this case, the determination of a new place of work was a lawful change of essential working conditions, and the unjustified refusal of the trade union to approve the dismissal did not prevent the termination of the employment contract.

Case circumstances

The Director of the Internal Audit Department of the State Enterprise "Administration of Sea Ports of Ukraine" filed a lawsuit seeking reinstatement and recovery of average earnings for the period of forced absence, challenging his dismissal.

At the end of 2022, the enterprise decided to change the workplace of some management staff from Kyiv to Odesa. The employer justified this decision by organizational changes aimed at improving the efficiency of managing the activities of sea ports. The employee was notified in writing about the change of essential working conditions but refused to continue working in Odesa. Subsequently, the employment contract was terminated based on paragraph 6 of part one of article 36 of the Labor Code of Ukraine.

The plaintiff argued that the employer effectively transferred him to another location rather than changing essential working conditions. He also claimed that since the enterprise continued to operate remotely, there was no basis for changing the workplace, and noted that as deputy head of the trade union committee, he was dismissed without proper union consent.

The court of first instance reinstated the employee and awarded him over UAH 347,000 in average earnings for the period of forced absence. After a repeated appellate review, this decision was upheld.

What the Supreme Court decided

The Civil Cassation Court overturned the decisions of the lower courts regarding the granted claims and denied reinstatement and recovery of average earnings.

The Supreme Court noted that during martial law, the employer, according to the Law of Ukraine "On the Organization of Labor Relations under Martial Law," must notify the employee about changes in essential working conditions no later than the moment of their introduction. In this case, the employer complied with this procedure.

The court emphasized that the employer set the new place of work in Odesa, justifying it by the need for proper organization of the enterprise’s work. The State Enterprise "Administration of Sea Ports of Ukraine" conducts its main activities through sea ports and their branches located in southern regions of Ukraine, while Kyiv mainly provides representative functions. Under these circumstances, determining the workplace in Odesa was within the employer’s discretionary powers.

The Civil Cassation Court concluded that under the circumstances of this case, determining the new place of work in Odesa was a change of essential working conditions, about which the employee was duly notified. The employee’s refusal to continue working after the change of workplace gave the employer grounds to terminate the employment contract under paragraph 6 of part one of article 36 of the Labor Code of Ukraine.

At the same time, the Supreme Court emphasized that in this case, the remote work regime did not affect the assessment of the lawfulness of changing the employee’s workplace. Therefore, the conclusions of the lower courts that the remote work regime excluded the possibility of such a change were recognized as erroneous.

Separately, the Supreme Court assessed the issue of trade union approval of the dismissal. The court stressed that the law requires a well-founded decision of the trade union body to refuse consent to dismissal. If such a decision lacks proper justification, it does not prevent the employee’s dismissal.

In case 752/2048/23, the trade union refused to approve the dismissal mainly because the employer submitted the relevant request after the employee was already dismissed. The Supreme Court noted that the trade union did not provide proper justification for the unlawfulness of dismissal under paragraph 6 of part one of article 36 of the Labor Code of Ukraine and did not indicate which substantive law provisions were violated by the employer. Under these circumstances, the trade union’s decision cannot be considered sufficiently justified.

In conclusion, the Supreme Court found that under the circumstances of this case, the employer lawfully changed the place of work, complied with the established procedure for notifying about changes in essential working conditions, and the employee’s refusal to continue working after the change of workplace was sufficient grounds for terminating the employment contract. The decisions of the courts of first and appellate instances regarding reinstatement and recovery of average earnings were overturned, and these claims were finally denied.

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