PROBLEMATIC ASPECTS OF DISCOVERY THE CORRUPTION IN THE LABOUR RELATIONS

Abstract

Purpose: to define the problematic aspects of discovery the corruption in the labour relations, in particular: manifestations of nepotism, which is the ground to terminate the employment agreement under paragraph 4 of Part 1 of Article 41 of the Labour Code of Ukraine, the circle of relatives who are subject to restrictions on the direct subordination, the qualification of the situation as a conflict of interest, which is the ground to terminate the employment agreement under paragraph 4-1 of Part 1 of Article 41 of the Labour Code of Ukraine. Research methods: documentary analysis and synthesis, comparative analysis, empirical methods of research of judicial practice, cognitive and analytical, as well as methods of systematization and generalizations. Results: the authors generalize the legal grounds to terminate the employment agreement under paragraph 4 of Part 1 of Article 41 of the Labour Code of Ukraine. Discussion: the authors defend a position that the fact of being under the direct control of a relative is not enough to terminate the employment agreement with the employee under paragraph 4 of Part 1 of Article 41 of the Labour Code of Ukraine.

Corruption as a multifaceted phenomenon also is present in the hired labour sphere. The corruption basis is the existence of discretionary power of the employer as an element of its management activities, when the personnel issues, the distribution of incentive benefits, using the incentives are decided by the employer at its own discretion. Just the existence of discretionary powers is a prerequisite for conflicts of interest. Thus, researching this phenomenon in the labour relations is quite topical.

To terminate the employment agreement on the initiative of the owner or its authorized body under paragraph 4 of Part 1 of Article 41 of the Labour Code of Ukraine, it is necessary to establish belonging to the category of relatives with whom there are relations of the direct subordination. It should be noted that according to the Law of Ukraine “On Prevention of Corruption” such persons form a fairly wide range.

The case law analysis allows to conclude that restrictions on the direct subordination of a relative do not apply to the officials of public law legal entities, and therefore the fact that such officials have family relations and the fact that they work in the same institution under the direct subordination is not a violation of anti-corruption legislation.

Establishing the fact of being under the direct control of a relative is not enough to terminate the employment agreement with the employee on this basis. After all, it is necessary to prove that improper performance of official duties, which affects or may affect the objectivity or impartiality of decision-making, or the commission or failure to act in performing these powers, due to the presence of such a private interest.