The company appealed against the decision of the State Labor Office in Ternopil Region on the imposition of a fine in connection with the admission of medical workers during December 2018 to January 2019 to perform work duties without concluding employment contracts (drawn up by order) and without submitting a notification to the relevant territorial DPS authority.
The court of first instance, rejecting the claim, in particular, was guided by the fact that medical services can be provided either by medical workers who are in labor relations with health care institutions, or by natural persons – entrepreneurs who are registered and have received the appropriate license in accordance with the procedure established by law and may be in civil-legal relations with these institutions.
The appellate court overturned the decision of the first instance court and satisfied the claim, citing the fact that the subject of the civil law agreements in this case is the undertaking by the employees to provide qualified counseling and treatment assistance. The lack of a license for performers under civil law agreements is not an automatic reason to qualify the relationship between them and a medical institution as labor and cannot be a reason for charging fines.
The Supreme Court, as part of the panel of judges of the Cassation Administrative Court, annulled the decision of the court of appeal, and upheld the decision of the court of first instance.
The court noted that medical assistance is professional assistance, such assistance must be provided by persons who meet the uniform qualification requirements approved by the Ministry of Health of Ukraine.
As a type of economic activity, medical practice is subject to licensing and can be provided by health care institutions and individuals — entrepreneurs who have the appropriate license.
The court noted that a health care institution that has a license to provide medical care must formalize employment relations with professionally trained medical workers or enter into civil law agreements with natural persons — entrepreneurs who are registered and have received an appropriate license in accordance with the procedure established by law provision of medical assistance.
At the same time, the current legislation does not provide for the possibility of concluding civil law agreements for the provision of medical care with any natural persons.
In this case, the courts of previous instances established that the Society had a license to provide medical services, while the doctors with whom the civil law agreements were concluded did not have the corresponding license, as they did not have the status of a natural person – an entrepreneur.
Therefore, the Supreme Court agreed with the conclusions of the court of first instance that the doctors were actually allowed to work without concluding an employment contract (due to the requirements of the Law, it is mandatory), which is a violation of Part 1 of Art. 24 of the Labor Code of Ukraine.
The ruling of the Supreme Court dated 08.12.2021 in case No. 500/652/19 (administrative proceeding No. K/9901/36361/19) can be viewed at the link https://reyestr.court.gov.ua/Review/101774215.
