Constitutional guarantees for protection of employees from illegal dismissal

Abstract

Background. The entire system of guarantees is established by legislation for proper implementation of human rights to work in Ukraine. However,most of existing guarantees have lost their relevance, are declarative and cannot effectively promote the protection of the employee from illegal dismissal in connection with intensive socio-economic transformations in our state. Therefore, the search of new approaches to solving problems concerning protection against illegal dismissal of workers, which is confirmed by the preparation of the new Labour Code of Ukraine, is relevant.
Analysis of recent research and publications. The study of this issue is reflected in the works of famous domestic scientists. However, certain issues of ensuring the right to work remained unnoticed by scholars and need to be resolved in view of the large number of violations during dismissal, the preparation of the Labour Code of Ukraine and the requirements of the European Union regarding the harmonization of domestic legislation with modern European standards.
The aim of the article is research and improvement of legal regulation of protection against illegal dismissal as an important constitutional guarantee of the implementation of the right to work in Ukraine.
Materials and methods. A set of philosophical, general scientific and special approaches, principles and methods of scientific knowledge are methodological basis of scientific research. The main provisions and conclusions of the article are based on empirical research, personal observations, the study of scientific publications, analysis of legal literature and legislative acts.
The results of the research. Relevant issues of legal regulation of protection against illegal dismissal as an important constitutional guarantee of the right to work implementation are studied. The views of scholars and the current legislation on guarantees of protection against illegal dismissal is analysed, also, ways of solving these problem issues in case of the occurrence of conflict of interests between the employee and the employer are offered. Changes to the current legislation of Ukraine and to the draft Labour Code of Ukraine such as to clearly disclose all grounds for termination of an employment contract on the initiative of the owner of the enterprise, institution, organization or authorized body are offered.
Conclusion. All grounds for termination of an employment contract on the initiative of the employer, referred to in Article 43 of the Labour Code of Ukraine, can be divided into two groups: dismissal on grounds that have employee’sfaults (paragraphs 3, 4, 7, 8), and dismissal on grounds that are not dependent on the will (guilt) of the employee (paragraphs 1, 2, 5, 6, 10, 11). Each of the grounds for terminating an employment contract has its own procedures and guarantees, without abidance of which the dismissal cannot be considered legal.
It is proposed to delete words «Also, in connection with the expiration of the termof the employment contract» from part 3 of Article 108 of the draft Labour Code of Ukraine and to put it in such wording: «In cases of workers dismissal specified in parts 1and 2 of this article, in case of liquidation of a legal entity – the employer, the termination by the individual of the implementation of functions of the employer, the redundancy payment shall be paid to them in the amount of at least three months’average wage».