The Grand Chamber of the Supreme Court Derogated from the Conclusions of the Supreme Court of Ukraine on the Calculation of a One-Time Monetary Allowance upon Dismissal from Military Service

Is the monthly additional monetary remuneration included in the salary of military personnel from which a one-time monetary allowance is calculated upon dismissal from military service? The answer to this question was given by the Grand Chamber of the Supreme Court after considering case No. 825/997/17.

The case was initiated by a servicewoman who served in the Armed Forces of Ukraine, and on May 23, 2017 was dismissed from military service to the reserve. After her dismissal, she applied to the military unit with a request to recalculate the one-time monetary allowance upon dismissal, taking into account the monthly additional monetary remuneration. In response, the military unit noted that there was no legal basis for the inclusion of monthly additional monetary remuneration in the composition of salary, from which a one-time monetary allowance upon dismissal was derived.

The plaintiff appealed the actions of the military unit to the court. The court of first instance satisfied the claim, and the appellate court, following the opinion of the Supreme Court of Ukraine (the SCU), cancelled the judgment and dismissed the claim.

The Administrative Cassation Court within the Supreme Court referred this case to the Grand Chamber of the Supreme Court, citing the need to derogate from the legal opinion of the Supreme Court of Ukraine. According to this opinion, the monthly additional monetary remuneration is temporary, as the payment of such remuneration is allowed in case there is the commander's order depending on the occurrence of special circumstances, its size is not fixed, and the payment is not monthly, so it is not included in the composition of the salary from which a one-time monetary allowance upon dismissal is calculated.

The Grand Chamber of the Supreme Court drew attention to the fact that the salary structure of the members of the armed forces was determined by law and therefore could not be restricted by the provisions of subordinate legislation.

According to the opinion of the Grand Chamber of the Supreme Court, the monthly additional monetary remuneration corresponds to the characteristics of the monthly additional types of monetary support, as it is monthly and has a permanent nature.

Consequently, the monthly additional monetary remuneration is included in the salary of military personnel from which a one-time monetary allowance is calculated upon dismissal from military service.

The Grand Chamber of the Supreme Court derogated from the opinions on the application of the legal provision in similar legal relations set out by the Supreme Court of Ukraine in its resolutions of November 4, 2014 in case No. 21-473a14, of March 3, 2015 in case No. 21-32a15 and of May 19, 2015 in case No. 21-466а15.

In view of the above, the Grand Chamber of the Supreme Court cancelled the ruling of the court of appeal and upheld the ruling of the court of first instance to satisfy the claim.

The resolution of the Grand Chamber of the Supreme Court of November 10, 2021, in case No. 825/997/17 (proceedings No. 11-281апп21) – https://reyestr.court.gov.ua/Review/101241002.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - lpd.court.gov.ua.