‘Gross violation of labour legislation by the employer’: what does it meant?

This publication focuses on the following: 1) the current labour legislation of Ukraine does not define the concept of ‘gross violation of labour legislation by the employer’, instead, it lists the grounds on which the employer’s actions are considered to violate the labour rights of employees and labour legislation in general; 2) the employer is subject to disciplinary action for violations of labour legislation, material, administrative, criminal and financial liability. The following conclusions are made: 1) a ‘gross violation of labour legislation by an employer’ should be considered a significant restriction of labour rights of employees or a dismissive attitude towards them; 2) within the meaning of Part 1 of Article 172 of the Criminal Code of Ukraine, this may include unlawful imposition of financial liability on an employee, systematic violation of working hours, failure to provide leave to which the employee is entitled for a long time, failure to provide benefits and compensation provided for by law; 3) within the meaning of Part 1 of Article 173 of the Criminal Code of Ukraine, this may be an abuse of trust, deception, or coercion to perform work not provided for in the employment contract; 4) the concept of ‘gross violation’ is evaluative and in each case it should be established based on the nature of the offence, the circumstances under which it was committed, the significant consequences of the violation (damage caused), the number of victims, the duration, systematic nature of the violations, the causal link between the violation and the negative consequences resulting from such violation, personal hostile relations, etc.; 5) the grounds on which the employer’s actions are considered to violate the labour rights of employees (and therefore to violate labour legislation), and therefore to be gross violations - currently, for example, the following are considered to be gross violations: admission of an employee to work without an employment contract, registration of an employee for part-time work when the employee actually performs full-time work, payment of wages without accrual and payment of a single contribution to the obligatory state social insurance and taxes, etc; 6) the most common violations of labour law are failure to conclude an employment contract with an employee, unjustified changes to essential working conditions, dismissal in violation of labour law, refusal to dismiss at will, demand for dismissal, wage arrears, and failure to make severance payments.