SC GC Resolution in Pilot Case as for Military Servant’s Right to Get Compensation for Unutilized Additional Leave During Special Period

The Grand Chamber of the Supreme Court adopted a decision in a pilot case as for the payment of pecuniary compensation to military servants for unutilized days of additional leave.

The plaintiff applied to court with a claim asking to recognize as illegal the inactivity of a military base regarding non-assessment and non-payment of pecuniary compensation for unutilized days of additional leave for the period from 2015 till 2018 for him as a participant of military activity and to oblige the defendant to perform relevant actions.

The Grand Chamber of the Supreme Court made a conclusion about the existence of reasons for the satisfaction of the plaintiff’s noted demands taking into account the following.

Pursuant to Article 16-2 of the Law of Ukraine “On Leaves”, participants of military activity <…> shall be provided with additional paid leave up to 14 calendar days per a year.

At the same time, according to item 17 of the Article 10-1 of the Law of Ukraine “On Social and Legal Protection of Military Servants and Members of Their Families” during a special period from the moment of mobilization declaration till the time of the imposition of martial law or till the adoption of a decision on demobilization, military servants shall be provided with leaves prescribed in Parts 1, 6 and 12 of this article (annual basic leave, canicular leave and leaves provided to military servants of compulsory military service), family leave and leaves due to other valid reasons.

During the special period from the moment of the mobilization declaration/while martial law, pursuant to item 19 of the Article 10-1 of that Law, provision of military servants with other types of leave, except for maternity leaves, parent leaves until the child turns three years old, and if the child needs homecare – for the period determined in the medical report but not longer than until the child turns six years old – for female military servants, as well as sickness leave or medical rest leave after serious wound pursuant to the opinion (resolution) of a military-medical commission, shall be terminated.

However, the Grand Chamber of the Supreme Court remarked that the Law did not establish the termination of the payment of compensation for unutilized parts of additional social leave, the right to which the plaintiff had got during the period of the military service.

The termination of provision of military servants with additional leaves is a temporary restriction of the way of realization of the right to direct use of additional leave. However, the restriction as for one of two ways of the realization of such a right shall not have impact on the substance of this right guaranteed by item 12 of the Article 12 of the Law of Ukraine “On the Status of War Veterans, Guarantee of Their Social Protection”, item 8 of the Article 10-1 of the Law of Ukraine “On Social and Legal Protection of Military Servants and Members of Their Families”, Article 16-2 of the Law of Ukraine “On Leaves”.

Pecuniary compensation for all unutilized days of annual basic and additional leaves, including those for previous years, shall be performed in accordance with the Decree of the Minister of Defence of Ukraine No. 260 of 7 June 2018 “On the Approval of the Procedure of Paying Cash Cover to Servants of the Armed Forced of Ukraine and Several Other Persons” registered in the Ministry of Justice of Ukraine on 26 June 2018 under the No. 745/32197.

Thus, the Grand Chamber of the Supreme Court concluded that in case of a military servant’s dismissal he/she should be provided with compensation for all unutilized days of annual and additional leave provided by Article 16-2 of the Law of Ukraine “On Leaves” and item 12 of Part 1 the Article 12 of the Law of Ukraine “On the Status of War Veterans, Guarantee of Their Social Protection”. Herewith, the right to get such payments shall not be limited with any term.

Full text of the Resolution of the Grand Chamber of the Supreme Court in the case No. 620/4218/18 (Пз/9901/4/19) (proceeding № 11-550заі19) is available in the Unified State Register of Judgments http://www.reyestr.court.gov.ua/.