Remote Work or Absenteeism: Criteria for Distinction in Supreme Court Practice

At the same time, situations often arise in practice where an employee believes they can work remotely without additional approval, while the employer regards their absence from the workplace as an unauthorized absence. An analysis of the Supreme Court’s case law shows under what conditions remote work is lawful and when an employee’s absence may be considered a violation of labor discipline. 

Criteria Considered by the Supreme Court

An analysis of case law indicates that when resolving disputes regarding dismissal for absenteeism in the context of remote work, the Supreme Court comprehensively evaluates the following circumstances:

• whether the remote work arrangement was properly implemented; 
• whether the employer established procedures for communication, assigning tasks, reporting, and familiarizing employees with regulatory documents; 
• whether remote work for a specific employee was approved; 
• whether the employee performed their job duties remotely and what evidence supports this; 
• whether the employer followed the procedure for imposing disciplinary action; 
• whether the employer has proven all elements of the disciplinary offense necessary for dismissal for absenteeism (paragraph 4 of part one of Article 40 of the Labor Code of Ukraine). 

An unauthorized switch to remote work does not preclude a finding of absenteeism

A telling example is the Supreme Court’s ruling of March 11, 2026, in Case No. 757/35540/24-ц.

An employee of the National Bank of Ukraine challenged his dismissal for absenteeism, arguing that he had been working remotely. However, the employer’s internal policies stipulated that remote work was permitted only after prior approval via the SAP Fiori system or corporate email.

The Supreme Court agreed with the conclusions of the lower courts that the employee had switched to remote work without authorization, failing to follow the established approval procedure, and had also failed to prove the existence of other valid reasons for his absence.

Thus, the Court confirmed that the mere existence of a remote work arrangement at a company does not grant an employee the right to independently determine the location of work in violation of the employer’s local policies. If the employer has established a procedure for approving remote work, failure to comply with it may constitute an unauthorized absence, provided other necessary conditions are met.

Traveling Abroad Does Not Automatically Constitute Absenteeism

The Supreme Court demonstrated a different approach in its ruling of June 6, 2024, in Case No. 367/569/23.

After the start of the full-scale invasion, an employee traveled to Turkey but continued to work remotely. Despite this, the employer terminated her for absenteeism.

The Supreme Court found that the company had an order in place establishing a flexible work schedule, which allowed employees to choose between remote and in-office work. Furthermore, the employer continued to pay the employee’s salary for several months, thereby effectively accepting the results of her work. 

At the same time, the employer later decided to conduct an internal investigation into the employee’s failure to appear at the workplace. However, the employer failed to properly notify the employee of the internal investigation or provide her with access to the documents related to her termination.

Under these circumstances, the Supreme Court concluded that the employer had effectively agreed to the remote performance of work duties. At the same time, the Court emphasized that in the absence of a written agreement, it is the employer’s responsibility to establish the procedures for communicating with the employee, conveying orders, assigning tasks, and reporting. Shortcomings in the organization of remote work cannot be attributed to the employee.

Therefore, an employee’s presence outside Ukraine does not in itself constitute an unauthorized absence. For a lawful termination, the employer must prove not only the fact of the employee’s absence from the workplace but also the absence of valid reasons for such absence, proper adherence to disciplinary procedures, and the lack of actual work performance while working remotely.

Limits of Judicial Review and the Burden of Proof

These approaches were further developed in the Supreme Court’s ruling of July 8, 2026, in Case No. 538/1991/23.

In this case, the employer terminated the employee for absenteeism, even though the company had implemented a remote work arrangement. However, the employer had not established procedures for interacting with employees, nor had it set forth methods for assigning tasks, reporting, or monitoring work performance.

The Court of Appeals, in dismissing the claim, reasoned that the employee had failed to prove that he had actually performed his job duties remotely. The Supreme Court disagreed with this approach.

The court noted that if the employer itself introduced remote work but failed to establish procedures for its organization and supervision, the lack of evidence of work performance cannot automatically constitute an absence without leave. The negative consequences of deficiencies in the organization of remote work cannot be attributed solely to the employee.

Furthermore, the Supreme Court emphasized that courts must review the legality of a dismissal solely on the grounds specified in the employer’s order. If an employee is terminated for absenteeism, the court has no authority to effectively substitute this ground with an assessment of the proper performance of job duties, since absenteeism and improper performance of job duties are different types of disciplinary offenses.

Separately, the Court reaffirmed the established approach regarding the allocation of the burden of proof, citing, in particular, International Labor Organization Convention No. 158. It is the employer who must prove the existence of lawful grounds for dismissing an employee, including all elements of the disciplinary offense that served as the basis for applying paragraph 4 of part one of Article 40 of the Labor Code of Ukraine.

Conclusions

The Supreme Court’s case law indicates a gradual shift from a formalistic approach—under which absenteeism was equated solely with the employee’s physical absence from the workplace—to a comprehensive assessment of the actual organization of work.

In disputes over the dismissal of employees who work remotely, courts evaluate not only the mere fact of the employee’s absence from the office but also the procedure for implementing remote work, the content of the employer’s internal regulations, the adequacy of communication arrangements, the actual performance of job duties, compliance with disciplinary procedures, and the allocation of the burden of proof between the parties.

Thus, the employer must prove not only the fact that the employee was absent from the workplace but also the legality of the entire dismissal procedure, while the court is not authorized to go beyond the grounds specified in the dismissal order. It is precisely this comprehensive assessment of these circumstances that currently determines the Supreme Court’s approach to distinguishing between remote work and absenteeism.

The article was written by:

Nataliia Matviichuk, Head of Litigation and Dispute Resolution practice at GOLAW, Attorney at law

Yuliana Yatsyshyn, Junior Associate at Litigation and Dispute Resolution practice at GOLAW