The author's position on the new version of Article 118 of the Labor Code of Ukraine, in particular: “Employees dismissed because of their election to elective office at public authorities, local governments, party, trade union and public organizations, companies, shall be provided with previous work (position) upon termination of their term of office, including earlier, and in its unavailability, with other equivalent work (position) at the same or, with the employee’s consent, at another enterprise, institution, organization (Part 1). Should the equivalent work (position) be unavailable for the employment period for the employees specified in Part 1 hereof, they shall be paid for 6 months an average salary the person received in an elective office (Part 2).”
The author argued that under clause 5 of Part 1 of Article 36 of the Labor Code of Ukraine, the employee is an initiator of the dismissal, since he has to confirm in writing his will to terminate the employment contract as being elected for an elective office, namely, to write an application.
The fact that the employee was hired for a position previously held by an elected official, not by replacement, but under a fixed-term or permanent employment contract, is argued not to affect execution of the provisions of Article 118 of the Labor Code of Ukraine.
The provisions of Article 118 of the Labor Code of Ukraine are proved not to contain a term of vacancy for an employee’s reinstatement in the previous position (work).
To apply the provisions of Article 118 of the Labor Code of Ukraine, labor categories "equivalent work (position)" and "identical position" should be distinguished, because they are not the same.
All guarantees of human and civil rights are offered to divide into national (fundamental) and local. The national (fundamental) ones include social, legal (juridical), economic, political, ideological, cultural guarantees. In turn, social and legal (juridical) guarantees combine guarantees (a) for legal protection against ungrounded denial of employment and illegal dismissal, as well as help in job retention and (b) reinstatement. While guarantees of reinstatement are provided during: (a) reinstatement in case of dismissal with no legal grounds or illegal transfer to another job, (b) reinstatement of persons dismissed under clause 5 of Part 1 of Article 36 of the Labor Code of Ukraine.
The guarantees at reinstatement of the persons dismissed under clause 5 of Part 1 of Article 36 of the Labor Code of Ukraine, according to the author, are divided into (a) basic and (b) supplementary. Basic guarantees are defined in Article 118 of the Labor Code of Ukraine and cover: (a) reinstatement of previous work (position) and (b) the provision of other equivalent work (position) at the same or another enterprise, institution or organization if the previous work (position) is unavailable. Supplementary guarantees are stipulated in specific laws of Ukraine, regulating the activities of persons designated by elective office and establish, particularly, the following guarantees: (a) for average salary payment due to a person in an elective office, in case the relevant work (position) is unavailable for the employment period; (b) provision of work to special categories (women, disabled persons, etc.).
