In the thesis it has established that under the employee's health mismatch it is necessary to understand the physiological condition that prevents an employee from fulfilling his labor function, which is associated not only with the presence of a certain chronic or persistent disease, namely, the inability to continue his work on a particular labor function due to detected and established contraindications.
The author proved that the grounds for termination of an employment contract under item 2, part 1, Article. 40 of the Labor Code of Ukraine are the factual data that confirm that due to the state of health (permanent deterioration of the work capacity), an employee can not properly fulfill his labor obligations, or their performance is contraindicated in the state of health, as confirmed by the conclusion of the MSEC, in accordance with which employee is recognized as disabled and recommended to him is different from what he is doing. In considering such a labor dispute, the court must, in particular, determine whether the worker suffers a confirmed illness MSEC finding that prevents the continuation of the work performed.
The conclusions of the LCC can not serve as the basis for dismissal under paragraph 2 of Part 1 of Art. 40 of the Labor Code of Ukraine, as they do not contain clauses on the incapacity to work in a specialty, they only contain information on diseases that are temporary in nature, without indicating complete or partial permanent disability. Grounds for dismissal under Clause 2 of Art. 40 of the Labor Code of Ukraine are either factual data that confirm that due to the state of health (permanent deterioration), an employee can not properly perform his labor duties, or a persistent violation of the functions of the body, the recognition of the worker with a disabled person and the presence of contraindications to prolong him work activity, confirmed by the certificate of the medical and social expert commission. Other medical documents proving that it is impossible to perform work for health without establishing a disability group due to persistent violation of the functions of the body, can not be the reason for dismissal under paragraph 2 of Art. 40 Labor Code of Ukraine
It has argued that the inconsistency between the position occupied or the work performed on the state of health may be the reason for dismissal in the presence of a full or partial permanent, rather than a temporary disability, therefore a temporary incapacity or a frequent absence of an employee at work in connection with temporary disability did not is the reason for the dismissal of an employee on the basis of paragraph 2 of Part 1 of Art. 40 Labor Code of Ukraine.
It has proved that the fact of establishing a disability can not be the reason for the dismissal of an employee under item 2, part 1, Article 40 of the Labor Code of Ukraine, since dismissal of workers for reasons of disability is prohibited by law. At the same time, the dismissal of a person with a disability is allowed in cases where, according to the MSEC opinion, his state of health impedes the performance of his professional duties or the continuation of his employment may lead to a deterioration in the health of a person with a disability.
In the case of termination of an employment contract on the initiative of the employer for the health of the employee «other work», to which the employer must offer the transfer of an employee, should be considered work, including, in other profession or specialty, provided that the employee can perform such work. That is, the worker has enough experience and knowledge to carry out such work or if such work does not require special training, as the key to resolving the issue of transferring an employee to work that is not controversial to his health is the fact that this work is not He was banned from medical examination and did not harm his health.
The position that during the termination of an employment contract on the initiative of the employer under clause 5 of Part 1 of Art.40 of the Labor Code of Ukraine, a legal assessment requires not only the fact of the employee's return to work, but the fact of staying at work as a result of which the employee actually began to perform his official duties. After all, the fact of entering the work is not evidence of interruption of the four-month period of temporary disability of the employee and the grounds for the recognition of illegal dismissal under paragraph 5 of Part 1 of Art. 40 Labor Code of Ukraine.
