We would like to draw your attention to the recently published opinion of the Administrative Cassation Court within the Supreme Court on the possibility of discharging an employee from military service based on decision on the conscription postponement.
Thus, in a ruling of May 22, 2023 in case No.260/1851/22 the Administrative Cassation Court within the Supreme Court states the fact of postponement of call-up for military service ("reservation") of a person liable for military service after the person's conscriptioncannot be considered a valid ground for discharging from military service during the martial law under subclause "d" of clause 2 of Part 4 of Article 26 of the Law of Ukraine "On military duty and military service."
The reason is that the deferment of conscription during the mobilization and discharge from military service during the mobilization are different concepts and are based on the provisions of various institutions of military law. Regarding the number of persons, the "reservation" shall apply only to persons liable for military service and is a ground for deferment of military service during the mobilization. Meanwhile, the discharge from military service shall concern servicemen, i.e. persons performing military service.
Consequently, in terms of content and purpose, the postponement ("reservation") of persons liable for military service shall not concern the legal relations on the discharge of servicemen from military service.
In view of the Supreme Court's opinion, we recommend that employers, needing to postpone employees' call-up for military service, devote particular attention to this issue during the martial law. Since, according to our practice, it is easier to postpone employees' call-up for military service, than to discharge them from military service.
If you have any questions on the legal basis and procedure for postponement of employees' call-up for military service, please feel free to contact Legal Alliance сounsel Lidiia Sanzharovska, who leads the practice of military law, by e-mail: sanzharovska@l-a.com.
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