1. The subject of the dispute is the appeal against the inaction of the prosecutor’s office regarding the non-accrual and non-payment of average earnings for the period of delay in settlement upon the prosecutor’s dismissal.
2. The court of cassation overturned the decision of the appellate court, pointing to the need to take into account changes in legislation regarding the limitation of the period for payment of average earnings (Article 117 of the Labor Code) and the application of the principle of proportionality in determining the amount of compensation. The court noted that it is necessary to establish the amount of average earnings for the entire period of delay, the total amount of payments due upon dismissal, the proportion of paid and unpaid funds, and on this basis, taking into account the principles of reasonableness and fairness, determine the amount of compensation. The court also emphasized that the courts of previous instances did not take into account the ratio between the total amount due to the plaintiff upon dismissal and the unpaid amount, and also incorrectly applied the norms of substantive law regarding the period of accrual of average earnings. ** The court departed from the conclusion set forth by the court of cassation in the ruling of December 06, 2024, in case No. 440/6856/22, and formulated a legal conclusion according to which the limitation of the period for calculating compensation for delay in settlement upon dismissal to six months, introduced to Article 117 of the Labor Code of Ukraine by Law No. 2352-IX, establishes the maximum limit of the employer’s liability. This legislative limit does not negate the fundamental principles of reasonableness, fairness and proportionality, and also does not change the compensatory nature of the corresponding payment.
3. The Supreme Court overturned the ruling of the appellate court and sent the case for a new trial to the court of appellate instance.
