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Two jobs and dismissal. Costs of replacing an employee

The article is aimed at both employees and employers. He will provide answers to questions related to the employee's vacation leave - what is its legal basis and the amount of leave, what determines the length of the leave. The issue of dismissing an employee from vacation will be discussed - when the employer can do so, and whether the employee may refuse to return to work. The consequences of such a refusal will also be indicated. The problem of costs that the employer will have to incur in connection with the replacement for an employee who is on vacation will be highlighted, as well as what if the employee is employed in more than one workplace.

The employee's right to leave - what does it mean and how much is it?

Pursuant to Art. 152 of the Act of June 26, 1974, the Labor Code, an employee is entitled to an annual, uninterrupted, paid leave, which cannot be waived.

The features of a holiday leave are therefore its:

uninterruptible;
payment;
inability to waive.

The length of leave is:

20 days if the employee has been employed for less than 10 years;
26 days if the employee has been employed for more than 10 years.

It is important, however, that the periods of previous employment are also included in the employment period, so this applies to employment in general, and not with a specific employer.

This period also includes the period:

basic or equivalent vocational school - duration of education provided for in the curriculum, but not more than 3 years;
secondary vocational school - the duration of education provided for in the curriculum, but not more than 5 years;
secondary vocational school for graduates of basic (equivalent) vocational schools - 5 years;
general secondary school - 4 years;
post-secondary school - 6 years;
university - 8 years.

Study periods cannot be added up!

Example 1.

Ms. Kinga graduated from computer science. For 6 months she worked in a cafe as a barista. Then, for a year she was employed as a junior programmer at PROGRAMowanie Sp. J.

The length of her leave is 20 days, as her total employment period is 9 years and 6 months - 8 years in connection with graduation and then 1.5 years of employment. After 6 more months of work, he / she will be entitled to 26 days of holiday leave.

When can a holiday be canceled?

Pursuant to Art. 167 § 1 of the Labor Code, the employer may recall an employee from leave only if his presence at the company is required by circumstances unforeseen at the time of the commencement of the leave.

Most often, the reason why an employee is recalled from vacation will be a breakdown or other event caused by force majeure.

A call to work as a result of dismissal from leave will be justified if the employee on leave is the only competent person to restore the enterprise to the state it was in before the breakdown. The dismissal may also apply to a situation where an inspection is to be carried out in the workplace, e.g. a fiscal or sanitary inspection, and the person who deals with this is an employee on vacation.

Another example, currently valid in the time of the pandemic, may be the sudden indisposition of another employee, the inability to quickly arrange a replacement due to the nature of the work. If a coronavirus infection is detected among employees and other employees are referred to mandatory quarantine, it may turn out that only the employee on vacation is a person who has had no contact with the sick and only she is able to perform the duties of those who are sick or cannot leave. place of residence due to contact with an infected person.

Example 2.

Attorney-at-law, Mr. Krzysztof, employed at the enterprise under a contract of employment, took a vacation leave between September 10-30, 2020. On September 25, 2020, a hearing was scheduled in one of the most important economic proceedings pending against this enterprise. On September 20, 2020, it turned out that the second attorney-at-law employed at the company had tested positive for coronavirus. The company employed these 2 attorneys-at-law and 2 trainee attorneys-at-law who formed a small legal department. Both applicants were placed in quarantine. In such a case, it is justified and correct to inform Mr. Krzysztof about the situation and to cancel him from the holiday leave, as it is not possible for another person to take part in these proceedings in terms of proper preparation for the case.

However, an important problem is how to inform the employee that he is recalled from the leave. Technical issues are not regulated in any way in the Labor Code, so the employer should introduce appropriate rules in the workplace. The easiest way would be to introduce this practice in the regulations or, if the employer is not obliged to define it, in the employment contract. An easy solution is the possibility of telephone contact, although it should be borne in mind that the employee may spend his vacation in a place where there is no coverage or abroad. However, the employer must strive to be able to contact the employee in a situation where his presence in the workplace is necessary and it is required to cancel the leave.

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Can an employee refuse to appear at work? Consequences of refusal

The dismissal is an order issued by the employer to the employee. The employee is obliged to follow the instructions that apply to work, which are not inconsistent with the law or the employment contract.

The employee may therefore only refuse if:

dismissal is not related to work;
the dismissal is against the law;
the dismissal is against the contract of employment.

Failure to show up at work after the employee is recalled from leave may be subject to a reprimand or reprimand. Importantly, this may even lead to the employee being dismissed without observing the notice period due to his fault.

Therefore, the consequences for the employee may be high, especially if he has already received sanctions in the past, as this may constitute grounds for terminating the employment relationship with the employee due to his fault, i.e. disciplinary action.

Costs of replacing an employee

There are many ways to replace employees who are on vacation. Among the most popular, the following can be distinguished:

entrusting the replacement of absent employees to other employees of the same workplace, bearing in mind that they cannot be entrusted with other types of work for a period longer than 3 months;
employing an external employee on the basis of a replacement employment contract, for a specified period or for the duration of a specific job;
employing an external person on the basis of a civil law contract, e.g. commission, specific work, cooperation agreements;
using the work of employees of the temporary employment agency.

Of course, these costs are borne by the employer.

Is there any difference if an employee is employed by several employers?

The Labor Code does not provide for any differences when an employee is employed for two or more full-time jobs. It is only his decision, if he works for several employers, according to the principle "no harm is done to the wanting person".

It is obvious that when he takes a vacation, he will be on vacation in two workplaces in one period. An employer who has not dismissed an employee will continue to use the holiday leave he / she is entitled to.

Summary

It is absolutely exceptional to recall an employee from their non-waiver of leave. It must be a justified situation that occurred in the workplace and could not have been foreseen when the employee started the leave. If the dismissal is justified, concerns work and is not inconsistent with the law and the employment contract, the employee is obliged to appear at work.

The employer may entrust this work to another employee, which is an instruction for him and is obliged to perform it.