The Supreme Court refused to recalculate the average salary for a SBI employee who served in the military

An employee of the State Bureau of Investigation, whom the court recognized as unlawfully dismissed and reinstated, tried to receive compensation for the period when the decision to return him to work was not enforced. However, the Supreme Court concluded that after July 2022, such payment was not due to him because he was serving in the military at that time. This decision was made by the Supreme Court panel of judges of the Cassation Administrative Court in case No. 200/4210/23.

Case circumstances

The plaintiff applied to the court demanding to recognize the inaction of the Territorial Department of the SBI in Kramatorsk as unlawful and to oblige the payment of the average salary for two periods — for the time of forced absence from July 28, 2022, to March 22, 2023, and for the delay in enforcing the court decision on reinstatement from June 3 to July 20, 2023.

The plaintiff justified his claims by stating that by the decision of the Donetsk District Administrative Court dated September 13, 2021, he was reinstated in his position, and this decision regarding reinstatement was subject to immediate enforcement. However, the SBI did not issue the corresponding order and effectively did not execute the court decision.

In July 2022, the appellate court canceled the reinstatement decision, but on March 23, 2023, the Supreme Court canceled the appellate ruling and upheld the first instance court's decision on reinstatement.

The first instance court partially satisfied the claim. The court recognized the inaction of the Territorial Department of the SBI regarding non-payment of the average salary for the delay period from June 3 to July 20, 2023, as unlawful and obliged to make the appropriate calculations and payments.

The appellate court canceled the decision regarding the satisfied claims and fully dismissed the lawsuit. The court established that the plaintiff served in the military under contract during the disputed period, and after the entry into force of Law No. 2352-IX from July 19, 2022, such employees retain only their workplace and position, but not the average salary. Therefore, there are no grounds for its recovery either for the forced absence period or for the delay in enforcing the reinstatement decision.

Supreme Court conclusion

The Supreme Court emphasized that a decision to reinstate an unlawfully dismissed or transferred employee is considered executed when the owner or authorized body issues an order (instruction) allowing the employee to return to work and the employee is actually admitted to work.

The Supreme Court also noted that the average salary, by its nature, is a state guarantee, the right to receive which arises for an employee unlawfully deprived of the opportunity to perform their work for reasons beyond their control. The law links this payment exclusively to the fact of delay in enforcing the reinstatement decision.

At the same time, the Court took into account the position of the Grand Chamber of the Supreme Court (case No. 755/12623/19), according to which the average salary for the time of forced absence is effectively equated to wages, as it compensates for lost income due to unlawful dismissal and restoration of the employment contract.

The Supreme Court noted that in this case, the reinstatement order was issued only on July 21, 2023, so the period before this date is formally the period of delay in enforcing the court decision, which generally entails the obligation to pay the average salary.

At the same time, as established by the appellate court, on October 28, 2020, the plaintiff signed a contract to serve in the Armed Forces of Ukraine. At the time of the first instance court decision, the plaintiff, based on the order of the military unit dated June 7, 2023, No. 161, continued to serve in the military.

However, the Supreme Court drew attention to the fact that on July 19, 2022, the Law of Ukraine dated July 1, 2022, No. 2352-IX "On Amendments to Certain Legislative Acts of Ukraine Regarding the Optimization of Labor Relations" came into force, which amended the Labor Code of Ukraine, in particular, replacing the words "retain the workplace, position, and average salary" in part three of Article 119 with "retain the workplace and position."

In view of this, the Supreme Court left the cassation appeal without satisfaction and the appealed court decisions unchanged.

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