1. The subject of the dispute is the appeal against the inaction of the prosecutor’s office regarding the failure to accrue and pay average earnings for the period of delay in settlement to a former employee upon dismissal.
2. The court of cassation found that the courts of previous instances had made errors in the application of substantive law, in particular Article 117 of the Labor Code of Ukraine, failing to take into account changes in legislation regarding the limitation of the period for payment of average earnings to six months, and also failed to investigate all the circumstances of the case necessary to determine a fair amount of compensation. The court noted that it is necessary to take into account both the period before July 19, 2022 (without limiting the payment period) and the period after that date (with a limit of six months), as well as to establish the ratio between the total amount due to the employee upon dismissal and the unpaid amount to determine the proportional amount of compensation. The court also emphasized that when deciding on the amount of compensation, it is necessary to be guided by the principles of reasonableness, fairness and proportionality, taking into account the specific circumstances of the case, and deviated from the conclusion of the court of cassation in the previous case, indicating the need to apply the criteria of proportionality established by the Grand Chamber of the Supreme Court.
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 remedy violations of substantive and procedural law.
