Closure of airspace can be a lawful ground for suspension of an employment contract — Supreme Court

The Supreme Court, in the composition of the panel of judges of the First Judicial Chamber of the Cassation Civil Court, upon reviewing case No. 359/4028/23, confirmed the legality of suspending the employment contract with an air traffic control dispatcher who challenged the employer's order issued after the start of the full-scale invasion by the Russian Federation. The court concluded that under the conditions of airspace closure and cessation of the enterprise's main activity, the employer had lawful grounds to suspend employment relations with the employee.

According to the case details, the plaintiff filed a lawsuit against the State Enterprise for Air Traffic Services of Ukraine, requesting to recognize the order suspending the employment contract as unlawful, to reinstate the employment contract from April 1, 2022, and to recover average wages for the period of suspension of employment relations.

The plaintiff argued that the employer had a real opportunity to provide him with work since the enterprise and its units were located in the same region, and his workplace was not in a combat zone or occupied territory. The plaintiff also stated that the suspension of the employment contract did not comply with the requirements of the Law of Ukraine "On the Organization of Labor Relations under Martial Law" because there was an actual possibility to perform the work.

The plaintiff also emphasized the selective and discriminatory approach of the employer, as other employees with similar positions continued to perform their work.

Based on these arguments, the plaintiff requested to cancel order No. 140 dated March 30, 2022, to reinstate the employment contract from April 1, 2022, and to recover average wages for the forced downtime.

By the decision of the Boryspil City District Court of Kyiv Region dated December 3, 2024, upheld by the Kyiv Court of Appeal on May 28, 2025, the claim was denied as unfounded. The courts recognized the employer's actions regarding the suspension of the employment contract as lawful, and the claims were dismissed.

Why the Supreme Court sided with the employer

Upon reviewing the case, the Supreme Court noted that according to Article 13 of the Law of Ukraine "On the Organization of Labor Relations under Martial Law," suspension of an employment contract is possible only if military aggression simultaneously excludes the possibility for the employer to provide work and for the employee to perform it.

The court also referred to the resolution of the United Chamber of the Cassation Civil Court, stating that the mere fact of military aggression against Ukraine is not an unconditional ground for the employer to suspend the employment contract. The wording of Article 13 of the Law of Ukraine "On the Organization of Labor Relations under Martial Law" (in the version effective at the time of the disputed legal relations), which allows suspension of the employment contract due to military aggression against Ukraine that excludes the possibility of providing and performing work, and the use of the conjunction "and" allows the conclusion that the simultaneous occurrence of these two circumstances permits the use of suspension of the employment contract with the employee as a temporary exceptional event.

At the same time, in the reviewed case, the courts established that after the start of the full-scale armed aggression by the Russian Federation and the closure of Ukraine's airspace, the employer effectively ceased its main activity of providing aeronautical navigation services to civil airspace users. According to the Supreme Court's conclusion, this objectively made it impossible to provide work to all employees according to their job duties.

The court also took into account that after the introduction of martial law, the work of medical and language certification commissions was suspended. Therefore, when forming lists of employees retained to perform the enterprise's uninterrupted tasks, the employer applied the criterion of having medical and language certificates valid until the end of 2022.

The plaintiff was not included in this list because his medical certificate expired in May 2022, and his English language certificate expired in September 2022. The Supreme Court agreed that under these circumstances, the plaintiff could not perform dispatcher functions within the period set by the employer to ensure the uninterrupted operation of the enterprise. His statement of readiness to work submitted in April 2022 did not refute these circumstances.

The Supreme Court also rejected the discrimination arguments. The court noted that the employment contracts of the vast majority of employees of the district dispatch center were suspended, and the employer applied equal, objective, and clear criteria for selecting those employees who continued to work. Additionally, the panel of judges reminded that according to part four of Article 13 of the Law of Ukraine "On the Organization of Labor Relations under Martial Law," compensation of wages, guarantees, and compensatory payments during the suspension of the employment contract is the responsibility of the state conducting armed aggression against Ukraine.

Given the established circumstances, the Supreme Court agreed with the conclusions of the lower courts regarding the legality of the employer's order suspending the employment contract, dismissed the cassation appeal, and left the decisions of the courts of first and appellate instances unchanged.

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