The Kyiv office of Baker &McKenzie's Employment and Migration practice reviews the most significant courtdecisions in cases involving mobilization matters in 2014-2015 

An employer must reinstatean employee if dismissed in connection with military mobilization. ¹
An employee was dismissed under para. 3 p. 1 of Article 36 of the Labor Code inconnection with mobilization for active military service. The employer arguedin its appeal that changes to para. 3 p. 1 of Article 36 of the Labor Code(i.e., prohibition on dismissing mobilized employees) should be applicable tolegal relations after 8 June 2014 and were not retroactive, hence such changesare not applicable to the termination of employment before this date.

The court found that all employees dismissed under para. 3 p. 1 of Article 36of the Labor Code should be reinstated upon entry into force of Law of UkraineNo. 1275-VII "On Amendments to Certain Legislation of Ukraine on ImprovingDefense and Mobilization Matters during Mobilization" dated 20 May 2014(the "Changes").

Therefore, the employer must (1) reinstate the employee by cancelling the orderon his dismissal and making an appropriate entry into his labor book andpersonal file; (2) notify the employee by sending a letter with an attachedcopy of the order to his registered address (or actual place of residence); and(3) accrue the employee's average salary without withholding personal incometax and unified social tax ("UST") from the date of his dismissal.

 
Commencement of bankruptcyproceedings does not relieve an employer of the obligation to reinstate anemployee dismissed in connection with military mobilization.²

An employee was dismissed because he was ordered to report for active dutyduring mobilization. The employer refused to reinstate the employee after theeffective date of the Changes arguing that his dismissal took place on 18 March2014 and was in accordance with the Ukrainian legislation then in force.

The court ordered the employer to reinstate the employee as the Changesprovided that any employee dismissed in connection with mobilization underpara. 3 p. 1 of Article 36 of the Labor Code must be reinstated after 18 March2014. Moreover, the liquidation of the department headed by the dismissedemployee was not relevant to the case.

An employer need notwithhold personal income tax and UST from the average salary of employeesmobilized for active military service.³

An employee was mobilized for active military service in March 2014. In July2014 the employee was paid his average salary for the period of his militaryservice during mobilization. The employer withheld personal income tax and UST.

The court found that under the existing legislation, personal income tax andUST should not be withheld from the compensation payments made from publicfunds up to the amount of the average salary of the employees concerned.

The non-military servicealternative is available only to persons enlisted in military service as aresult of conscription.⁴

The applicant was ordered into active military service during mobilization. Themilitary commissariat denied the applicant demobilization or transfer tonon-military service as the existing legislation does not provide for anexemption from military service for reservists that are active members of areligious community.

The court concluded that non-military service was available only to persons whowere called up for military service as a result of conscription. As of the dateof the hearings, the applicant was a reservist who was called up to active dutyduring mobilization, which by its legal nature differs from military service asa result of conscription.

The court also noted that Letter No. 300/1/с/1186 of the Ministry of Defense"On the Realization of the Rights of Religious People to Fulfill theirDuties During Mobilization" dated 17 April 2014, under which the GeneralStaff of the Armed Forces of Ukraine supported the proposal to releasereligious people from military training and military service duringmobilization, was of an advisory nature.

A person must duly provethat military service is contrary to his religious beliefs.⁵

The accused refused to be mobilized for active military service because it wascontrary to his religious beliefs. The accused submitted to the court anappropriate certificate stating that he is a member of a church (i.e., a memberof the Evangelical Christian Church). The accused was convicted of evadingmobilization because he failed to provide the court with any evidence thatmembers of the Evangelical Christian Church can not take up arms and defend theState.

A person has the right toalternative service if he was conscripted for military service and militaryservice is contrary to his religious beliefs.⁶

The office of the public prosecutor brought charges of evading mobilizationagainst a person because he refused to be mobilized for military service onconscientious grounds. The accused claimed that he did not evade mobilizationand was ready to fulfill his civic duty in civilian service.

The court concluded that the accused has the right to alternative serviceinstead of military service as he is member of a religious organization whosedoctrine is against taking up arms. The court also emphasized that the right torefuse to undertake military service on grounds of conscience can not berestricted in the interests of national security and territorial integrity.

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[1] Order in case No.127/12449/14-ц, dated 19 August 2014, of the Court of Appeal of VinnytsyaRegion.

[2] Order in case No.585/4121/14-ц dated 5 March 2015, of the Court of Appeal of Sumy Region.
[3] Order in case No. 817/4004/14 dated 18 February 2015, of the AdministrativeCourt of Appeal of Zhytomyrskiy Region.  
[4] Order in case No. 824/3255/14-а, dated 21 January, of the AdministrativeCourt of Chernivtsi City. 
[5] Decision in case No. 556/127/15-к, dated 13 March 2015, of theVolodymyretskyi District Court of Rivne Region.
[6] Decision in case No. 183/6316/14, dated 26 February 2015, of the Court ofAppeal of Dnipropetrovsk Region.

Additional notes

ThisLEGAL ALERT is issued to inform Baker & McKenzie clients and otherinterested parties of legal developments that may affect or otherwise be ofinterest to them. The comments above do not constitute legal or other adviceand should not be regarded as a substitute for specific advice in individualcases.