Incorrectly Calculated Salary Indexation: When the Employer Cannot Recover Overpayment
An incorrectly calculated and paid salary indexation to an employee cannot be withheld by the employer unilaterally if such overpayment did not arise due to a calculation error. In such a case, the return of funds is possible only upon the employee's request.
This is explained by the provisions of Article 1215 of the Civil Code of Ukraine, according to which wages and other payments that are means of subsistence, which were received without grounds, are not subject to return if they were paid voluntarily, in the absence of a calculation error on the part of the employer and bad faith on the part of the employee.
At the same time, the Resolution of the Plenum of the Supreme Court of Ukraine dated December 24, 1999, No. 13 "On the Practice of Courts Applying Legislation on Remuneration of Labor" defines calculation errors as inaccuracies in calculations, including double payment of wages for the same period. However, errors related to the incorrect application of legislation or other regulatory legal acts, including collective agreements, are not considered calculation errors.
If the employer mistakenly calculated the salary indexation, such an error is not a calculation error. Therefore, the overpaid amount can be withheld only if there is a written statement from the employee.
Upon submission of such a statement, the employer issues an order to correct the error, after which the indexation is reversed.
If the employee does not submit a statement, the employer has no right to reverse the accrued indexation. In this case, the paid amount remains part of the employee's salary.
As previously reported by "Judicial and Legal Newspaper", the Inspection Activity Department in the Kharkiv region provided clarifications regarding liability for violations of salary indexation rules.
According to Article 265 of the Labor Code of Ukraine (LCU), failure to comply with minimum state guarantees in remuneration entails a fine of two minimum wages for each employee for whom the violation was found.
For employers, this means that errors in calculating salary indexation currently will not lead to a fine. However, control over the accuracy of calculations remains important, as after the end of martial law, legislative norms will again apply in full.
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