1. The subject of the dispute is the establishment of the fact of downtime of the hospital’s employees who found themselves in the temporarily occupied territory, and the recovery of average earnings for this period.
2. The court of cassation upheld the decisions of the courts of previous instances, noting that the occupation of the territory does not relieve the employer of the obligation to pay wages to employees with whom labor relations have not been terminated or suspended. The court emphasized that the employer must take all possible measures to ensure the realization of the employees’ right to timely receipt of wages, and the non-performance of labor duties by employees due to the occupation is a factor independent of them. Also, the court took into account that the employer did not provide evidence of the amount of the plaintiffs’ wages, therefore the courts reasonably determined the amount of average earnings based on the available information. The court also noted that in conditions of occupation, the employer cannot demand that employees remain in the occupied territory and continue to perform their labor duties. The Court refers to the resolution of the Joint Chamber of the Civil Cassation Court in the resolution of May 05, 2025, and concludes that there is no rule of law in the Labor Code of Ukraine that would regulate the issue of payment of average earnings for the period of illegal suspension of the employment contract in this situation, since this is neither downtime nor dismissal of the employee, therefore Article 235 of the Labor Code of Ukraine applies.
3. The Supreme Court dismissed the cassation appeal, and the decisions of the courts of previous instances remained unchanged, confirming the right of employees to receive average earnings for the period of forced downtime due to the occupation.
