1. The subject of the dispute is the recovery of average earnings for the period of delay in settlement upon dismissal from the military unit.
2. The court of cassation established that the courts of previous instances correctly determined the periods of application of different versions of Article 117 of the Labor Code of Ukraine, namely: until July 18, 2022, the version without limitation of the payment term was in effect, and after that – with a limitation of six months. However, the appellate court mistakenly applied the principle of proportionality to the entire period of payment delay, which contradicts the legal position of the Supreme Court. The court of cassation noted that it is necessary to establish the amount of all sums due upon dismissal in order to determine the proportional amount of average earnings for the period of delay in settlement in accordance with the conclusions of the Supreme Court. The court of cassation pointed out the impossibility of applying the conclusions of the Grand Chamber of the Supreme Court regarding proportionality to legal relations regulated by Article 117 of the Labor Code of Ukraine as amended by the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Regarding the Optimization of Labor Relations.”
3. The Supreme Court overturned the decision of the appellate court and sent the case for a new hearing to the court of appellate instance.
