Employee Returns from Childcare Leave: What Happens to the Employee Hired in Her Place
The employee returns to performing her job duties after the end of unpaid leave granted for childcare until the child reaches six years of age. In this regard, employers often wonder whether it is necessary to give advance notice of dismissal to the employee hired in her place under a fixed-term employment contract. The Federation of Trade Unions of Ukraine has provided the relevant clarification.
For what term is the replacement employee hired
During the primary employee’s childcare leave until the child reaches three years of age, or up to six years if confirmed by a medical certificate, the employer has the right to employ another person. In this case, a fixed-term employment contract is concluded with the new employee, which is valid until the actual return to work of the employee who was on childcare leave. This possibility is provided for by Article 23 of the Labor Code of Ukraine.
When does the fixed-term employment contract terminate
After the primary employee returns, the fixed-term employment contract with the employee who temporarily performed her duties terminates due to the expiration of its term. The basis for this is paragraph 2 of Article 36 of the Labor Code of Ukraine. The dismissal is carried out on the eve of the primary employee’s actual return to work.
At the same time, the law provides an exception. If after the expiration of the contract term the employee continues to perform their duties and neither party insists on terminating the employment relationship, such a fixed-term contract is automatically considered extended for an indefinite period.
The Federation of Trade Unions emphasizes that termination of a fixed-term employment contract upon expiration does not require the employee to submit any application or separate expression of will. By agreeing to a fixed-term employment contract upon hiring, the employee effectively agrees that the employment relationship may be terminated after the specified term expires.
Is advance notice of dismissal required
Therefore, the employer is not obliged to notify such an employee in advance about the upcoming dismissal due to the expiration of the fixed-term employment contract. The dismissal is carried out based on paragraph 2 of Article 36 of the Labor Code of Ukraine.
Can an employee be dismissed during sick leave or vacation
Moreover, dismissal on this basis is allowed even if the employee is on sick leave or vacation at the time of termination of the employment relationship. This is explained by the fact that termination of a fixed-term employment contract due to expiration of its term is not considered dismissal initiated by the employer, and therefore the restrictions established by part three of Article 40 of the Labor Code of Ukraine do not apply in this case.
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