Hot vacancies: how predecessors are “removed” in the Cabinet of Ministers

Hot vacancies: how predecessors are “removed” in the Cabinet of Ministers 150 150 Esquires

How are the double standards of personnel policy manifested?

Changing the person in the prime minister’s chair has traditionally led to changes in the leadership of the government. This is what happened with the coming to power of its new leader Denys Shmyhal. Lately, the Cabinet of Ministers dismissed several dozen of officials, including the former Head of the State Forest Resources Agency Andrii Zablotskyi, the former Head of the State Geocadastre Denys Bashlyk, the former Head of the customs service Maksym Nefodov. Besides, the latter was recently offered three vacant positions by the National Agency of Civil Service (NACS). After such a “cleaning”, the government started talking about the principles of “equality and brotherhood” and even registered bill No. 3748, which is aimed to stop arbitrariness, in particular, while dismissing civil servants.

But is this how things works in reality and doesn’t the new Prime Minister violate his own declarations, the Managing partner of ESQUIRES law firm, attorney Oleksandr Shkelebey told to Mind.

On September 19, 2019 The Law of Ukraine “On Civil Service” was supplemented with the Article 87-1, according to which the Cabinet of Ministers may, at its own discretion, decide to dismiss a civil servant from a post of category “A” within four months from the date of appointment of the Prime Minister of Ukraine or the relevant minister or the head of the central executive body (head of the state body) with the simultaneous employment of such a civil servant in the staff of the corresponding state body.

This rule came into force on September 25, 2019 and was ambiguously perceived in the legal environment, because during the change of the government, it enables to dismiss people unreasonably from “non-political” posts, so to say “without explaining the reasons.”

Contrary to the norms of international law, the Constitution of Ukraine and the Labor Code, this article allows a fairly wide range of people to be dismissed only because new politicians have come to power.

As a general rule, a person can be dismissed because of her ability (their discrepancy) or the behavior or production needs of the enterprise (Article 4 of the International Labor Organization Convention No. 158 on the termination of labor relations at the initiative of the employer, 1982).

So, the beforementioned novel had to facilitate the so-called appointment of the insiders on the local level,which it is not bad for political positions, but it is completely not typical and not justified for employees of “non-political” positions, who should first of all be professionals and not team players.

Anyone would say: this practice has brought Ukraine into a difficult economic situation, because they are not professionals in their field, but loyal to the countries’ political leadership.

The appointment of Denys Shmyhal on March 4 on the post of Prime Minister of Ukraine marked not only the announcement of a new economic course, but also gave formal reasons for the application of the above article 87-1.

After coming to power, the new Prime Minister began to actively use this norm for "cleaning" the top corps of the civil service and to dismiss civil servants of category "A" (non-political positions). In total, in a very short period of time Shmygal dismissed 30 civil servants on this basis.

You would think, what’s wrong with that ?! The new Prime Minister wants to work with his people and not only on the positions of ministers and their deputies, but also heads and deputies of ministries and departments, for example, the State Tax Service of Ukraine.

Cynicism and double standards appeared later.

It turns out, that Shmygal and the new government understood the absurdness and unlawfulness of such a dismiss mechanism, because at the end of the four-month period for the implementation of Article 87-1, it was they who initiated the development of draft law No. 3748 of 26 April 2020, which, in particular, provides for the exclusion of this article from law.

The bill was developed by the Civil Service National Agency of Ukraine (interestingly,that the head of this body and its deputies were dismissed by one of the first orders of the Cabinet of Ministers dated on March 10 and 20, 2020) on behalf of the Prime Minister of Ukraine on the results of a meeting of June 12, 2020.

In an explanatory note to the draft law, signed by the Prime Minister personally, it is stated that the purpose of the development of the document is, in particular, to ensure exceptionally justified dismissals from civil service positions. Among the problems that are proposed to be solved by the adoption of the project is “the possibility of unjustified dismissals from public service positions”. In addition, the description of the essence of the draft law “provides the removal of provisions that are the basis for unjustified dismissals of civil servants of category“ A ”.

Some interesting statistics. Three of the thirty dismissed were dismissed on June 25, 2020. On the same day the Prime Minister approved the bill # 3748. Another six civil servants were dismissed from office by the order of the Cabinet of Ministers of Ukraine after the given date.

So the Prime Minister of Ukraine (even if we assume that he did not know about the illegality of this dismiss mechanism before) deliberately signed 9 unjustified orders of the Cabinet of Ministers of Ukraine on the dismissal of civil servants of category “A” on the basis of Art. 87-1 of the law.

Why do they continue to use Art. 87-1 even after they themselves admitted it was illegal?! There is a distinct impression that the draft law was developed to avoid the same fate as the “predecessors”.

For the final debunking of doubts about the true purpose of the draft law, we also propose to refer to its final and transitional provisions (subparagraph 4 of paragraph 2 of Сhepter II), which are proposed to fix that the position of civil servants who have already been dismissed and employed in the state is regulated in the same way as indicated in Art. 87-1, which is proposed to be excluded from the law. To put it simply, those who have already been unreasonably dismissed have no chances to return: either six months of employment in staff and dismissal, or three proposals for transfer to positions of category “B”.

Even in Soviet times, those repressed for political reasons were rehabilitated, for example, Academician Korolyov, but we did not reached that stage.

It looks like that the new government began its work with a conscious application of the mechanism of “consolidating power”, which is contrary to the norms of national and international legislation and common sense. What will be your constitutionally guaranteed right next?


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