The subject matter of this dispute is the claim of a former serviceman for the recovery of average financial allowance from a military unit for untimely settlement upon discharge.
Regarding the arguments relied upon by the court, the situation is as follows. Firstly, the court noted that since July 2022, a new wording of Article 117 of the Labor Code of Ukraine has been in force, which limits the payment of average earnings for the period of delay in settlement to a maximum term of six months. Secondly, the panel of judges emphasized that such a legislative restriction does not eliminate the need for courts to apply the principles of reasonableness, fairness, and proportionality when determining the final amount of compensation. ****: In this decision, the Supreme Court referred to the conclusions of the Grand Chamber, which departed from the previous position of the court of cassation and confirmed that courts have the right to reduce the amount of compensation even within the new six-month limit, assessing the commensurability of the claimed amount to the amount of the actual debt. Thirdly, for this purpose, courts should apply a clear mathematical formula of proportionality, determining the percentage of the unpaid amount relative to the total amount of funds due upon discharge, rather than reducing the payment “by eye,” as the court of appeal did. Finally, the court pointed out that the appellate instance failed to ascertain at all whether the plaintiff had acquired the right to such a settlement, since he was not discharged from military service, but only transferred to another military unit.
Ultimately, the Supreme Court granted the plaintiff’s cassation appeal, reversed the resolution of the court of appeal, and remanded the case for a new consideration to the court of appellate jurisdiction.
