1. The subject of the dispute is the inaction of the military unit regarding the failure to accrue and pay average earnings for the delay in settlement upon dismissal.
2. The Supreme Court overturned the decision of the appellate court, emphasizing that the appellate court did not establish all the circumstances relevant to the correct resolution of the case, and arbitrarily determined the amount of average earnings, which contradicts the conclusions of the Supreme Court. The court of cassation emphasized that when deciding on the amount of compensation for untimely settlement upon dismissal, the courts must take into account the compensatory nature of the payment, the principles of reasonableness, fairness and proportionality, as well as the criteria established by the Grand Chamber of the Supreme Court in case No. 761/9584/15-ц, in particular, the amount of overdue debt, the period of delay, the employee’s likely property losses and other circumstances of the case. The court also noted that it is necessary to establish the amount of average earnings for the entire period of delay, the total amount of payments due to the plaintiff upon dismissal, as well as the share of paid and unpaid funds, in order to award the plaintiff the appropriate percentage of the amount of average earnings. The Supreme Court emphasized that the Grand Chamber of the Supreme Court deviated from the conclusion stated by the court of cassation in the decision of December 06, 2024 in case No. 440/6856/22, and formulated a legal conclusion according to which the restriction of the period for calculating compensation for delay in settlement upon dismissal to six months, introduced to Article 117 of the Labor Code of Ukraine by Law No. 2352-IX, establishes the maximum limit of the employer’s liability, but does not negate the fundamental principles of reasonableness, fairness and proportionality.
3. The Supreme Court ruled to overturn the decision of the appellate court and send the case for a new trial to the court of appeal.
