Supreme Court Clarifies How to Reinstate an Unlawfully Dismissed Employee When Their Former Position Has Been Removed from the Staffing Schedule

The Joint Chamber of the Civil Cassation Court has departed from the Supreme Court’s previous position and established a new approach to the application of Article 235 of the Labour Code of Ukraine.

In employment reinstatement disputes, the court must reinstate an unlawfully dismissed employee in their former position, even if that position has already been removed from the staffing schedule by the time the case is considered. At the same time, the court may neither independently assign the employee to another “equivalent” position nor require the employer to reinstate an abolished position in the staffing schedule.

This conclusion was reached by the Joint Chamber of the Civil Cassation Court within the Supreme Court in its ruling dated 7 September 2026 in case No. 308/9220/21.

The dispute arose in connection with organisational changes at an educational institution. The employee’s position was effectively removed from the staffing structure, and she was offered another job and notified of changes to the essential terms and conditions of employment. After she refused to work under the new conditions, her employment was terminated under paragraph 6 of part one of Article 36 of the Labour Code of Ukraine.

The employee argued that her position had effectively been made redundant. Accordingly, the employer should have applied paragraph 1 of part one of Article 40 of the Labour Code and complied with the statutory safeguards.

The Supreme Court agreed that changes to the essential terms and conditions of employment under Article 32 of the Labour Code are permissible only in respect of the same position. If the position has been removed from the staffing schedule, dismissing the employee under paragraph 6 of part one of Article 36 of the Labour Code is unlawful. In such circumstances, the situation constitutes redundancy, and termination of employment must comply with the applicable safeguards, including those provided for in Articles 42, 44 and 49-2 of the Labour Code.

The Joint Chamber separately clarified the appropriate legal remedy for an unlawfully dismissed employee whose former position has already been removed from the staffing schedule.