Can an employment agreement be terminated with an employee who has been absent from work for more than four consecutive months?

Pursuant to Article 36(1) of the Labor Code of Ukraine (the “Labor Code”), the grounds for termination of an employment agreement are the parties' agreement, termination of an employment agreement at the initiative of the employee (Articles 38 and 39), at the initiative of the owner or his authorized body (Articles 40 and 41) and other grounds.

Article 21(1) of the Labor Code of Ukraine defines an employment agreement as an agreement between an employee and an employer (individual employer), under which the employee undertakes to perform work specified in the agreement, and the employer (individual employer) undertakes to pay the employee wages and provide the working conditions necessary for the performance of work as provided for by labor legislation, collective bargaining agreement and agreement of the parties.

Pursuant to Article 29(1) of the Labor Code of Ukraine, prior to commencing work, the employer is obliged to inform the employee in a manner agreed with the employee, in particular, about the internal labor regulations or conditions for establishing the work schedule, working hours and rest periods, as well as the provisions of the collective bargaining agreement (if any).

Pursuant to Article 139 of the Labor Code of Ukraine, employees are obliged to work honestly and in good faith, to comply with the employer's orders in a timely and accurate manner, to observe labor and technological discipline, the requirements of labor protection regulations, and to take care of the property of the employer with whom they have entered into an employment contract.

Part two of Article 30 of the Law of Ukraine “On Remuneration of Labor” stipulates that the employer is obliged to ensure accurate accounting of the work performed by the employee and accounting of labor costs in accordance with the established procedure.

Pursuant to paragraph 83 of part one of Article 36 of the Labor Code of Ukraine, the grounds for termination of an employment contract are absence of an employee from work and information about the reasons for such absence for more than four consecutive months.

In accordance with the clarification of the Ministry of Economy of Ukraine, which is the main body in the system of central executive authorities that ensures the formation and implementation of state policy in the field of labor, the absence of an employee from work and information about the reasons for such absence for more than four consecutive months should not be equated with dismissal due to absenteeism (Article 40(4) of the Labor Code of Ukraine).

In order to terminate an employment agreement on the relevant grounds, two mandatory conditions must be met simultaneously:

1) the employee's actual absence from work for more than 4 consecutive months;

2) the employer has no information about the reasons for such absence for more than 4 consecutive months (regardless of whether the reasons for such absence are valid or not).

It seems that in case of failure to fulfill the above two conditions simultaneously, the dismissal based on such a ground may be declared illegal by the court, for example, if the employee proves that he/she informed the employer of the reasons for his/her absence within 4 months.

At the same time, based on the need to fulfill the requirement of absence of an employee or information about him/her for 4 consecutive months, the presence of several similar periods that in total equal or exceed 4 months cannot be considered as fulfillment of this condition.