Can HR be criminally liable for illegal dismissal?
In modern conditions, effective personnel management and compliance with labor legislation are key factors in business stability. It is important for HR specialists and HR department managers to understand that improper execution of the dismissal procedure can lead to criminal consequences for the HR specialist and the company manager. This is especially true in cases where the employee's dismissal was preceded by a conflict and a complaint about illegal dismissal was received by law enforcement agencies.
What is the responsibility for?
The Criminal Code of Ukraine contains Article 172 – Gross violation of labor legislation. According to this article, liability is provided for:
Illegal dismissal of an employee for personal reasons or in connection with his reporting as a whistleblower about the commission of a corruption or corruption-related offense by another person, other violations of the Law of Ukraine “On Prevention of Corruption”, as well as other gross violation of labor legislation –
Predicted punishment: a fine of 34 thousand to 51 thousand UAH or deprivation of the right to hold certain positions or engage in certain activities for a term of up to 3 years, or corrective labor for a term of up to 2 years, or probationary supervision for the same term.
Conditions for bringing to criminal liability
Court decision in a labor dispute. The most common cases are when a labor dispute begins after dismissal and the former employee applies to the court with a demand to cancel the order of his dismissal, pay wages for the period of illegal dismissal and reinstatement. In these processes, all the circumstances of the dismissal are established and the court assesses its legality.
If the employee wins the case in this lawsuit and the court reflects in the court decision circumstances that could potentially indicate gross violations of labor legislation, this may create an additional basis for criminal prosecution.
For example, firing an employee for absenteeism that did not occur. Firing for personal reasons, if the reason for the firing is a conflict with management and mutual disapproval for certain reasons. Or because of complaints about corruption, which resulted in a desire to somehow fire a problematic employee.
The examples described are potential interpretations of the event by the dismissed employee, and they may not correspond to reality. However, comprehensive information must be provided to the court both during the consideration of a labor dispute in court and during the pre-trial investigation in criminal proceedings.
The presence of authority in HRto sign the dismissal order. Sometimes the personnel work in the company is organized in such a way that HR can deal with hiring and firing employees. This frees up the manager's time from operational work, but places additional responsibility on HR. To do this, the manager must authorize him by power of attorney to carry out such actions. At the same time, HR also assumes responsibility for the illegal dismissal of an employee.
Importantly: If there is no authority to dismiss, this does not automatically exclude the possibility of prosecution. Participation and assistance to a manager in the dismissal process and its documentation may be interpreted by law enforcement as complicity in the commission of a crime.
Case law example
Practical experience confirms that improper documentation of the dismissal procedure may be grounds for qualifying the actions as a gross violation of labor legislation. For example, in this case The dismissed employee filed a criminal complaint with the prosecutor's office, in which he described the following situation:
... the company president, in the presence of the chief auditor, the head of the logistics department, the head of the HR department and the chief lawyer, reported that he was not properly performing his duties and was subject to dismissal by mutual consent. No reasonable reasons were provided for his improper performance of his duties.
This case not only led to criminal proceedings, but also to a search of the company, which created significant risks to the company's assets and reputational risks. This example demonstrates the importance of carefully documenting all stages of the dismissal procedure to prevent possible litigation and avoid criminal consequences.
How to defend yourself in cases of illegal dismissal?
For HR specialists and HR department managers, protection against accusations of gross violation of labor laws is based on 3 main aspects:
Compliance with the established dismissal procedure. Ensure that the procedure for terminating an employment contract complies with the requirements of the Labor Code of Ukraine and other regulatory legal acts in the field of labor legislation. All actions must be previously coordinated with the company's internal regulatory documents.
Documentary confirmation. Carefully record each stage of the procedure: meeting minutes, acts, decisions, written notices and other supporting documents. Having a complete set of documents will allow you to prove, in the event of a legal dispute, that the dismissal was carried out in accordance with the requirements of the law.
Consultations with a lawyer. Legal support helps to identify possible shortcomings in a timely manner and adjust the procedure, which significantly increases the employer's protection in the event of claims.
Proving that all actions were carried out in accordance with the law is a key element of effective defense in cases of illegal dismissal, both in labor disputes and in criminal proceedings. Careful documentation, timely notification of the employee, and professional legal support significantly reduce the risks of criminal liability under Article 172 of the Criminal Code of Ukraine.
Also, the defense in such cases may be based on proving the employee's personal motives to create problems for the employer. If the dismissed employee's claim is that his activities as a whistleblower were grounds for dismissal, it must be proven that such activities were actually carried out to create additional protection for himself from dismissal.
If necessary, the company can also file a claim for a knowingly false report of a crime.
Conclusion
It is important for HR managers and heads of HR departments to understand that gross violations of labor legislation can have serious criminal consequences. According to Article 172 of the Criminal Code of Ukraine, such actions are punishable by both fines and restrictions on the right to hold certain positions or engage in certain activities.
If you have any questions about the legality of employee dismissals or need advice on optimizing internal HR procedures, our legal team is always ready to provide professional support.
