The subject matter of this dispute is the recovery from a military unit, in favor of a discharged serviceman, of average earnings for the period of delay in settlement upon discharge for the period from 2017 to 2023, as well as compensation for the loss of part of income due to the untimely payment of indexation of monetary allowance.
**** The Supreme Court in this case drew attention to the need to apply the recent legal conclusion of the Grand Chamber of the Supreme Court dated October 8, 2025, which departed from the previous position of the court of cassation regarding the impossibility of applying the principle of proportionality to the new wording of Article 117 of the Code of Laws on Labor of Ukraine. The Court emphasized that the statutory limitation of the recovery of average earnings to six months, which has been in effect since July 19, 2022, in no way negates the fundamental principles of reasonableness, fairness, and proportionality. Consequently, the long period of delay in paying the debt to the plaintiff should be conditionally divided into two parts: prior to the entry into force of the legislative amendments (when the recovery period was not limited to 6 months) and after that date (already with the 6-month limitation). In both of these periods, courts are obliged to assess the proportionality of the claimed amount of average earnings to the amount of the actual debt, using a special proportionality formula (the ratio of the unpaid amount to the total amount of payments due). Since the courts of lower instances did not perform a proper calculation according to these criteria and failed to establish all the factual circumstances, their conclusions regarding the amount of the recovery are premature.
The Supreme Court partially satisfied the plaintiff’s cassation appeal, vacated the decisions of the courts of first and appellate instances in the part of the claims for the recovery of average earnings for the period of delay in settlement, and remanded the case in this part for a new trial to the court of first instance.
