1. The subject of the dispute is the appeal against the inaction of the military unit regarding the failure to accrue and pay the average earnings for the period of delay in settlement upon the plaintiff’s dismissal from military service.
2. The court of cassation established that the courts of previous instances made errors in determining the period for which average earnings should be accrued, and in calculating the amount payable. In particular, the appellate court did not take into account that the disputed legal relations arose before the amendments to Article 117 of the Labor Code, which limited the period of payment of average earnings to six months, and did not establish a ratio between the total amount due to the plaintiff upon dismissal and the unpaid amount. The court of cassation emphasized the need to apply the principle of proportionality in determining the amount of compensation, taking into account the specific circumstances of the case, and pointed to the erroneousness of the conclusions of the courts of previous instances regarding the amount of average earnings to be recovered from the defendant in favor of the plaintiff. Also, the Supreme Court noted that the Grand Chamber of the Supreme Court departed from the conclusion stated by the court of cassation in the resolution of December 6, 2024, in case No. 440/6856/22, and formulated a legal conclusion according to which the limitation 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. This legislative limit does not negate the fundamental principles of reasonableness, fairness, and proportionality, and does not change the compensatory nature of the corresponding payment.
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 to establish all the circumstances relevant to the correct resolution of the case, and to apply the correct norms of substantive law.
