Employment and migration Kyiv Court practice on mobilization matters The Kyiv office of Baker & McKenzie's Employment and Migration practice reviews the most significant court decisions in cases involving mobilization matters in 2014- 2015 An employer must reinstate an 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 in connection with mobilization for active military service. The employer argued in 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 to legal relations after 8 June 2014 and were not retroactive, hence such changes are not applicable to the termination of employment before this date. The court found that all employees dismissed under para. 3 p. 1 of Article 36 of the Labor Code should be reinstated upon entry into force of Law of Ukraine No. 1275-VII "On Amendments to Certain Legislation of Ukraine on Improving Defense and Mobilization Matters during Mobilization" dated 20 May 2014 (the "Changes"). Therefore, the employer must (1) reinstate the employee by cancelling the order on his dismissal and making an appropriate entry into his labor book and personal file; (2) notify the employee by sending a letter with an attached copy of the order to his registered address (or actual place of residence); and (3) accrue the employee's average salary without withholding personal income tax and unified social tax ("UST") from the date of his dismissal. 1 Order in case No. 127/12449/14-ц, dated 19 August 2014, of the Court of Appeal of Vinnytsya Region. www.bakermckenzie.com For more information, please contact: Lina Nemchenko, Partner +380 44 590 0101 firstname.lastname@example.org m Mariana Marchuk, Counsel +380 44 590 0101 mariana.marchuk@bakermckenzie. com Baker & McKenzie Renaissance Business Center 24 Vorovskoho St. Kyiv 01054, Ukraine Commencement of bankruptcy proceedings does not relieve an employer of the obligation to reinstate an employee dismissed in connection with military mobilization. 2 An employee was dismissed because he was ordered to report for active duty during mobilization. The employer refused to reinstate the employee after the effective date of the Changes arguing that his dismissal took place on 18 March 2014 and was in accordance with the Ukrainian legislation then in force. The court ordered the employer to reinstate the employee as the Changes provided that any employee dismissed in connection with mobilization under para. 3 p. 1 of Article 36 of the Labor Code must be reinstated after 18 March 2014. Moreover, the liquidation of the department headed by the dismissed employee was not relevant to the case. An employer need not withhold personal income tax and UST from the average salary of employees mobilized for active military service. 3 An employee was mobilized for active military service in March 2014. In July 2014 the employee was paid his average salary for the period of his military service during mobilization. The employer withheld personal income tax and UST. The court found that under the existing legislation, personal income tax and UST should not be withheld from the compensation payments made from public funds up to the amount of the average salary of the employees concerned. The non-military service alternative is available only to persons enlisted in military service as a result of conscription. 4 The applicant was ordered into active military service during mobilization. The military commissariat denied the applicant demobilization or transfer to nonmilitary service as the existing legislation does not provide for an exemption from military service for reservists that are active members of a religious community. The court concluded that non-military service was available only to persons who were called up for military service as a result of conscription. As of the date of the hearings, the applicant was a reservist who was called up to active duty during mobilization, which by its legal nature differs from military service as a result of conscription. 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 Administrative Court of Appeal of Zhytomyrskiy Region. 4 Order in case No. 824/3255/14-а, dated 21 January, of the Administrative Court of Chernivtsi City. 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 their Duties During Mobilization" dated 17 April 2014, under which the General Staff of the Armed Forces of Ukraine supported the proposal to release religious people from military training and military service during mobilization, was of an advisory nature. A person must duly prove that military service is contrary to his religious beliefs. 5 The accused refused to be mobilized for active military service because it was contrary to his religious beliefs. The accused submitted to the court an appropriate certificate stating that he is a member of a church (i.e., a member of the Evangelical Christian Church). The accused was convicted of evading mobilization because he failed to provide the court with any evidence that members of the Evangelical Christian Church can not take up arms and defend the State. A person has the right to alternative service if he was conscripted for military service and military service is contrary to his religious beliefs. 6 The office of the public prosecutor brought charges of evading mobilization against a person because he refused to be mobilized for military service on conscientious grounds. The accused claimed that he did not evade mobilization and was ready to fulfill his civic duty in civilian service. The court concluded that the accused has the right to alternative service instead of military service as he is member of a religious organization whose doctrine is against taking up arms. The court also emphasized that the right to refuse to undertake military service on grounds of conscience can not be restricted in the interests of national security and territorial integrity. Additional notes This LEGAL ALERT is issued to inform Baker & McKenzie clients and other interested parties of legal developments that may affect or otherwise be of interest to them. The comments above do not constitute legal or other advice and should not be regarded as a substitute for specific advice in individual cases. 5 Decision in case No. 556/127/15-к, dated 13 March 2015, of the Volodymyretskyi District Court of Rivne Region. 6 Decision in case No. 183/6316/14, dated 26 February 2015, of the Court of Appeal of Dnipropetrovsk Region.