1. The subject of the dispute is the recovery of average earnings for the delay in settlement upon dismissal from military service.
2. The court of cassation established that the appellate court erroneously applied the principle of proportionality to reduce the amount of average earnings for the delay in settlement for the period after July 19, 2022, when the new version of Article 117 of the Labor Code came into force, which limits the payment of average earnings to six months; the previous version of Article 117 of the Labor Code applies to this period, which did not provide for a limitation on the term of payment and allowed the application of the principle of proportionality, taking into account 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 separately calculate compensation for the period until 07/19/2022, in proportion to the unpaid amounts, and for the period after this date, within the six-month period, without applying the principle of proportionality. The Court indicated that the extension of the conclusions of the Grand Chamber of the Supreme Court, set forth in the resolution of 06/26/2019 in case No. 761/9584/15-c, to Article 117 of the Labor Code of Ukraine in the new version, which regulates legal relations that arose/continue after 07/19/2022, is inappropriate.
3. The Supreme Court overturned the decision of the appellate court and sent the case for a new trial to the court of appeal to correctly calculate the compensation, taking into account the above circumstances.
