Illegal dismissal may cost the employer several years of the employee's salary — Supreme Court

The Civil Cassation Court of the Supreme Court annulled the decision of the appellate court in the dispute between an employee of the Zaporizhzhia NPP and JSC "NAEK Energoatom" regarding the payment of average earnings for the period of forced absence from work. The court concluded that the appellate court, without proper justification, limited the period for recovering the average earnings to six months, although it established that the forced absence lasted much longer.

Moreover, the Supreme Court annulled the appellate court's decision concerning the allocation of costs for professional legal assistance and sent the case for a new hearing.

Case circumstances

The plaintiff had been working at the Zaporizhzhia NPP since 2000 and since 2015 held the position of Deputy Head of the Legal Department for Analytical and Legal Work. In February 2022, he was reinstated in his position by court decision after a previous illegal dismissal due to staff reduction.

After reinstatement, the employee maintained communication with the employer via email. In May 2022, he was invited for an interview regarding a possible transfer to another position. In response, he stated that due to the occupation of Enerhodar and the presence of Russian military on the territory of the Zaporizhzhia NPP, he considered personal attendance dangerous but confirmed his consent to the transfer and provided information about his qualifications and work experience.

Subsequently, the employer drew up acts of the employee's absence at his place of residence and dismissed him under paragraph 4 of part one of article 40 of the Labor Code of Ukraine — for absenteeism without valid reasons.

In January 2025, the Supreme Court already considered this case. At that time, the Civil Cassation Court of the Supreme Court recognized the dismissal order as illegal, reinstated the employee, and confirmed that there were no grounds for dismissal due to absenteeism. At the same time, the issue of average earnings for the period of forced absence, salary, and other payments was sent for a new hearing to the appellate court because the previous courts had not established the necessary circumstances for their resolution.

After the new hearing, the Dnipro Appellate Court recovered UAH 276.3 thousand in average earnings in favor of the employee for the period of forced absence. However, this calculation was made only for six months — from June 14 to December 14, 2022. The court also recovered salary for the period from May 20 to June 13, 2022, and UAH 50 thousand for professional legal assistance costs.

The employee appealed this decision, indicating that the forced absence lasted from the moment of dismissal until the Supreme Court's decision on reinstatement — until January 29, 2025.

Conclusions of the Civil Cassation Court of the Supreme Court

The Civil Cassation Court agreed with the applicant's arguments.

The court recalled that according to part two of article 235 of the Labor Code of Ukraine, when reinstating an employee, the issue of payment of average earnings for the period of forced absence is simultaneously resolved. If the case of reinstatement lasts more than a year through no fault of the employee, payment is made for the entire period of forced absence.

The Civil Cassation Court also referred to the legal conclusion of the Grand Chamber of the Supreme Court dated February 8, 2022, in case No. 755/12623/19, according to which the average earnings for the period of forced absence are part of the salary. After reinstatement, the employee is considered to have been in an employment relationship with the employer during this entire time and therefore has the right to appropriate compensation for the period when they were illegally deprived of the opportunity to work.

The Supreme Court noted that the appellate court correctly recognized the employee's right to average earnings for the period of forced absence. At the same time, the appellate instance, without any justification, limited the period of recovery to six months, although it established that the forced absence lasted from June 14, 2022, to January 29, 2025 — the day the Supreme Court issued the reinstatement decision.

According to the Civil Cassation Court, such application of part two of article 235 of the Labor Code of Ukraine is erroneous and indicates an incomplete clarification of circumstances relevant to the correct resolution of the dispute.

Outcome of the consideration

The Supreme Court satisfied the employee's cassation appeal against the decision of the Dnipro Appellate Court dated July 23, 2025, and partially satisfied the cassation appeal against the additional decision dated October 23, 2025. The appellate court's decision was fully annulled, and the additional decision was annulled in part concerning the allocation of costs for professional legal assistance. The case was sent for a new hearing to the appellate court.

Thus, during the new hearing, the appellate court must re-determine the amount of average earnings for the period of forced absence taking into account the Supreme Court's conclusions, as well as reconsider the issue of allocation of court costs after the final resolution of the dispute.

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