08:30, 22 September 2026
If the employer transferred the employee to remote work, it is the employer who must prove that they created conditions for its fulfillment, and that the employee did not perform their duties without valid reasons.
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The Supreme Court, in the composition of the panel of judges of the Second Judicial Chamber of the Civil Cassation Court, by the ruling dated August 20, 2026, in case No.335/13399/24, considered the issue of recovering wage arrears for the period of remote work when the employer did not ensure proper work organization and did not keep personnel and accounting documentation.
The dispute also concerned whether the absence of documents on wage calculation can be a basis for refusing the employee to recover wages.
Case circumstances
The plaintiff held the position of chief accountant at the municipal enterprise “Hotel Ukraine” of the Zaporizhzhia Regional Council since September 3, 2018.
Then, on April 1, 2020, the enterprise announced downtime for most employees. At the same time, the downtime did not apply to the administration, including the chief accountant, who was to continue performing her official duties.
On the same day, by the director’s order, remote work was introduced for accounting employees, including the chief accountant, for the quarantine period.
Later, the enterprise was disconnected from electricity due to debt. In correspondence with the regional council, the management reported the lack of funds to pay wages and the impossibility of maintaining accounting records and submitting financial reports due to the lack of technical capability.
Subsequently, on February 15, 2022, the Zaporizhzhia Regional Council decided to terminate the municipal enterprise “Hotel Ukraine” by merging it with the municipal enterprise “Univers,” designating the latter as the legal successor of all rights and obligations of the enterprise.
On April 29, 2024, the chief accountant was dismissed at her own request under Article 38 of the Labor Code of Ukraine.
In December 2024, she filed a lawsuit against the municipal enterprises “Hotel Ukraine” and “Univers,” requesting recovery of wage arrears for the period from February 2020 to April 2024 in the amount of 765,979.11 UAH, average earnings for delayed payment amounting to 131,571.04 UAH, and also to oblige the defendants to pay the single social security contribution.
The plaintiff claimed that before dismissal she performed her duties as much as possible under the circumstances. In particular, she cooperated with the deputy director on the enterprise’s debt issues and provided employees with information regarding wage calculations, unused vacations, and sick leaves.
At the same time, the defendants opposed the claim, stating that the plaintiff did not perform her labor duties and that the enterprise did not conduct business activities.
The courts of first and appellate instances denied the claim. They reasoned that the plaintiff did not provide proper evidence of performing labor functions, remote work, and the amount of accrued but unpaid wages.
In the cassation appeal, the plaintiff’s representative noted that the courts effectively shifted the negative consequences of the employer’s improper organization and failure to transfer documentation onto the employee.
It was also emphasized that the employer did not cancel the remote work order, did not subject the plaintiff to disciplinary action, and did not dismiss her for absenteeism.
Position of the Supreme Court
The Supreme Court reminded that the right to timely remuneration for work is protected by law, and wage payment has priority over other enterprise payments.
The Supreme Court stated that the employee is the weaker party in labor relations compared to the employer. At the same time, in these relations, the employee must act in good faith in exercising their rights, and the employer’s interests must also be considered. That is, a reasonable balance between the interests of the employee and employer must be maintained.
The Court also drew attention to the employer’s duties regarding work organization and ensuring proper accounting of performed work.
It is the employer who must prove that they created conditions for the plaintiff to perform work remotely, provided access to necessary resources, and that the plaintiff without valid reasons refused to perform her duties or did not fulfill assigned tasks.
The Court emphasized that the introduction of remote work did not mean termination of labor relations with the plaintiff.
Thus, by introducing a remote work form for the plaintiff, the employer did not terminate labor relations with her, did not relieve her from performing labor functions, but only changed the work organization form for the quarantine period.
Moreover, according to Article 60 of the Labor Code of Ukraine (in the version effective at the time of the disputed relations), the application of remote work did not entail changes in remuneration and did not affect the scope of the employee’s labor rights.
Separately, the Supreme Court noted that after transferring the plaintiff to remote work, the defendant for four years did not take any actions indicating non-performance of labor duties by her.
The Supreme Court pointed out that the courts also failed to properly assess that after transferring the plaintiff to remote work, the defendant for four years did not take any actions indicating non-performance of labor duties, in particular, did not apply disciplinary measures or terminate labor relations on grounds of non-performance.
The Court also considered the issue of the absence of personnel and accounting documentation.
The absence of information about employees, personnel, and accounting documents at the employer cannot be a basis for refusing to pay wages, since the employer is obliged to properly organize employees’ work, create conditions for its fulfillment, ensure control over the labor process, and provide reliable accounting of the work performed and accounting of labor costs (Article 141 of the Labor Code of Ukraine, Article 30 of the Law of Ukraine “On Remuneration of Labor”).
Circumstances of improper organization of documentation transfer cannot impose negative consequences on the employee, restrict their labor rights, or indicate non-performance of labor duties.
Labor legislation does not provide grounds for releasing the employer from paying wages to the employee in cases of force majeure. Payment of wages to the employee is the employer’s obligation.
The Supreme Court partially satisfied the cassation appeal, canceled the appellate court’s ruling, and sent the case for a new hearing to the appellate court.
The Court concluded that the appellate court did not properly verify the circumstances of the plaintiff’s remote work performance, the employer’s creation of conditions for its fulfillment, and the significance of the absence of personnel and accounting documentation.
Therefore, the absence of documents on wage calculation or improper organization of the labor process by the employer cannot automatically be grounds for depriving the employee of the right to remuneration. When considering such disputes, the employer’s duties regarding work organization, ensuring conditions for its fulfillment, and maintaining reliable records must be taken into account.
Read also — downtime, staying abroad, and enterprise damage: what rules apply during martial law in case of dismissal.
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