Правозастосовні аспекти призупинення дії трудового договору та оплати середнього заробітку за час незаконного призупинення дії трудового договору

The article examines judicial practice on the legal grounds for suspending an employment contract and paying average earnings for the period of illegal suspension of an employment contract. It is determined that, in accordance with current legislation, the suspension of an employment contract is a temporary cessation by the employer of providing the employee with work and a temporary cessation by the employee of performing work under the concluded employment contract in connection with armed aggression against Ukraine, which excludes the possibility of both parties to the employment relationship to fulfill the obligations stipulated by the employment contract. It is noted that the condition for suspending the employment contract is the absolute inability of both parties to the employment relationship to fulfill the obligations stipulated by the employment contract (the employer – to provide work, the employee – to perform work). This raises the question: when is it considered absolute inability of both parties to the employment relationship to fulfill the obligations stipulated by the employment contract. The conclusion is formulated that there is no and cannot be a clear answer to this question (the formulation “ absolute inability of both parties to the employment relationship to fulfill the obligations stipulated by the employment contract” contains an element of assessment). From the analysis of judicial practice, it follows that the issue of recognizing the suspension of an employment contract as legal or illegal is resolved by courts in different ways (the issue is within the scope of judicial discretion). However, the study of judicial practice confirms that recently, courts have increasingly satisfied claims to recognize the order to suspend an employment contract as illegal. In the practice of the Supreme Court, the question arose of the expediency of courts applying Article 235 of the Labor Code of Ukraine by analogy to cases of illegal suspension of an employment contract by employers. After considering this issue, the Joint Chamber of the Supreme Court gave a positive answer to this question. In the author’s opinion, this legal position is of great importance for restoring violated rights of employees and will contribute to ensuring the unity of judicial practice in resolving this category of labor disputes.