1. The subject of the dispute is the appeal against the inaction of the Main Department of the SES regarding the non-accrual and non-payment of average earnings for the period of delay in settlement upon dismissal.
2. The court of cassation instance overturned the decisions of the previous instances, as they did not fully take into account the legal conclusions of the Grand Chamber of the Supreme Court regarding the application of Article 117 of the Labor Code of Ukraine, in particular, regarding the compensatory nature of the payment of average earnings for the period of delay in settlement upon dismissal and the need to ensure a fair balance of interests of the parties. The courts did not establish all the circumstances necessary to determine the amount of compensation, in particular, the total amount of payments due to the plaintiff upon dismissal and the share of the amount paid untimely. Also, the courts did not take into account the need to differentiate the periods of application of Article 117 of the Labor Code of Ukraine before and after July 19, 2022, when amendments were made to this article. The court of cassation instance emphasized the need to apply the formula defined in the resolution of the Supreme Court of November 30, 2020, in case No. 480/3105/19, for calculating the share of average earnings to be recovered.
3. The decisions of the previous instances are overturned, and the case is referred for a new trial to the court of first instance.
**** In this case, the Supreme Court noted that it took into account the conclusions of the Grand Chamber of the Supreme Court, which departed from the previous conclusion regarding the non-application of the principle of proportionality in determining the amount of compensation under Article 117 of the Labor Code of Ukraine after amendments were made to this article by Law No. 2352-IX.
