Representation of employers’ interests in labor disputes court

As a rule, labour disputes between employees and employers are related to dismissal, non-payment (or underpayment) of wages, unlawful transfer to another position, and the imposition of disciplinary sanctions.

What is employer representation in labour disputes?

The main issue for which employer clients turn to «DE-JURE» is challenging dismissals that employees consider unlawful while seeking reinstatement and recovery of average earnings for the entire period during which the dispute or court proceedings continue. Protection of the employer’s interests involves either preventing the employee’s reinstatement or, if the employer did make mistakes during the dismissal process, avoiding excessive financial losses in the form of average salary payments for the entire period of forced absence from work.

A lawyer may propose labour dispute mediation aimed at reaching a settlement agreement and resolving the conflict at an early stage. Mediation involves negotiations with the employee to prevent complaints to the State Labour Service or the filing of a lawsuit. However, in most cases the matter already concerns representation of the employer’s interests in court, where the lawyer (attorney) seeks to prove that the dismissal was entirely lawful and that there are no grounds for recovering payments from the employer.

When does an employer need legal support in labour disputes?

Legal support in labour disputes is a comprehensive issue. An employer may seek legal consultation in the following situations:

• Prevention of possible violations. Most dismissals that are later declared unlawful are connected with improper documentation of employment relations. For example, an employee may be hired, but during dismissal it turns out that job descriptions or other important documents simply do not exist. This significantly complicates the employer’s defence in court. There is also another possible scenario: a dishonest employee realizes that certain documents are missing and may artificially create a situation in which their rights appear to be violated, using this to pressure the employer with complaints or lawsuits. Therefore, it is important to properly prepare documentation, explain duties and responsibilities to employees, provide documents for signature, and reward compliance with internal regulations. In such circumstances, employees are less likely to violate labour discipline, and the likelihood of disputes caused by the employer’s fault is significantly reduced. Labour law legal services include assistance in drafting collective agreements, employment contracts, non-disclosure agreements, and other documents.
• A conflict has already arisen, but it has not yet become a labour dispute. At this stage, there is still an opportunity to resolve the matter peacefully through mediation. If it is established that the employer has indeed seriously violated labour legislation, there is a high probability of losing the case in court. Therefore, it is better to avoid litigation, because in addition to wage payments, the employer may also be required to pay average earnings for the entire period of the dispute.
• A lawsuit has been filed against the employer for a significant amount. In this case, the tasks of a labour dispute lawyer for the employer include preparing court documents, presenting evidence that the dismissal was lawful, and minimizing potential financial losses.

For example, according to statistics, the average salary in the Odesa region is approximately 25,000 UAH. Under civil procedure rules, an average labour dispute should last up to two months, but due to air raid alerts and power outages, proceedings may continue for up to six months. If the employer loses after six months, they may be ordered to pay at least 150,000 UAH. Therefore, the best strategy is to resolve the conflict with the employee during the pre-trial settlement stage — possibly even apologizing and reinstating the employee by official order.

In some cases, proper regulation of relations between the employee and employer encourages both parties to seek compromise solutions rather than proceed with dismissal and litigation.

How does a consultation and defence strategy development in a labour dispute take place?

An employer may seek legal consultation even before dismissing an employee, when there are already grounds for dismissal but questions remain regarding proper documentation. In such cases, the employer must inform the lawyer about the exact circumstances of the disciplinary offence committed by the employee and specify which documents regulate the legal relations that were violated. It is also necessary to determine whether there were valid reasons that led to such a violation. All this information helps to analyse the future legal prospects of court protection (since the employee may initiate legal proceedings after dismissal, and the employer must be prepared for this) and to develop a strategy for further actions.

The psychological profiles of the parties to the dispute are also of great importance:

• Is the employer acting as a rational manager or as an emotional individual? How far are they willing to go in this dispute?
• How does the employee behave? Is it possible to reach an agreement with them, and how willing are they to comply with any arrangements made?

If the lawyer understands that court practice in similar cases is more likely to favour the employer, they provide recommendations on what actions should be taken and, if necessary, prepare draft documents that may later be used for defence in court.

What documents should the client provide for a labour dispute consultation?

For a consultation regarding unlawful dismissal and reinstatement contrary to the employer’s position, the client should provide the following documents:

• the dismissal order;
• documents confirming the authority of the person who issued the dismissal order;
• preferably, documents relating to the employee’s previous employment history: date of hiring, position held, staffing schedule, job descriptions, disciplinary sanctions, and incentives or rewards.

If the employee belongs to a protected category (for example, a mother with many children or a person discharged from military service) and has additional guarantees or specific dismissal protections, this must also be taken into account.

The next step is to determine which individual documents will be prepared before dismissal. For example, if the grounds for dismissal are absenteeism, the lawyer must review the absenteeism report, understand how and by whom it was prepared, and assess whether the signatories are willing to appear in court as witnesses to confirm the circumstances of the absence.

What services are included in employer representation?

Representation of an employer’s interests includes preventive measures, in particular an audit of company documentation and identification of weak points. A dishonest employee may exploit gaps in documentation in order to artificially provoke dismissal and recover average earnings by filing a lawsuit and appeal in a labour dispute.

During a consultation regarding dismissal, a labour lawyer/attorney analyses whether there were factual and legal grounds for dismissing the employee and whether there is a risk that the dismissal order could be overturned in court, both with and without legal support. This requires studying court practice based on the specific circumstances of the case.

If the employer has already made mistakes during the dismissal process, the lawyer explains the likelihood of success in court and advises what can still be done to minimize costs before filing documents in court or during the litigation process.

Labour law has a social protection function and is designed to safeguard employees’ interests. If employees were liable for all damages claimed by employers in full, this would create the risk of excessive financial pressure and actual labour dependency.

According to Ukrainian legislation, an employee’s financial liability generally cannot exceed their average salary. However, in certain cases, recovery of damages from an employee is possible, particularly when it concerns senior management personnel.

As for the protection of employers’ rights in occupational safety disputes, such cases are currently relatively rare. During martial law, inspectors of the State Labour Service of Ukraine have limited powers, but upon employees’ requests they may investigate cases of dismissal under mobbing pressure — physical or psychological harassment intended to force an employee into actions contrary to their interests. As a result of an unannounced inspection, State Labour Service inspectors may impose fines; however, during martial law, if the detected violations are corrected, only a written warning is generally applied. Specialists of «DE-JURE» are prepared to accompany inspectors during inspections and provide the necessary documentation.

What results can be expected after a labour dispute consultation?

The result of a labour dispute consultation is a clear understanding by the client of their legal prospects and the development of a strategy for further actions. For example, an employer may realize that there are no real grounds for dismissal and that court proceedings would involve additional costs. In such a case, the employer will most likely avoid escalating the conflict and allow the employee to resign voluntarily, possibly with the payment of a bonus. This is far simpler than becoming involved in lengthy litigation with uncertain prospects.