Leave on demand without an expiry date - is it possible?
When analyzing the regulations on leave on demand, a peculiar conclusion can be drawn - despite the annual changes in the Labor Code, there is still a legal loophole in it favoring employees. Until when should the leave on demand be used? Check!
What exactly is a vacation on demand?
Leave on demand is part of a holiday leave, but it has different laws. Annual annual leave is 20 or 26 days. Depending on the length of service - when working for at least 10 years, the employee is entitled to a longer rest period, but both of these dimensions can be written as "16 + 4" and "22 + 4", because regardless of their professional experience, they are entitled to 4 days of leave upon request. Pursuant to the Labor Code (Art. 167 of the Labor Code), at the request of the employee, the employer is obliged to grant no more than 4 days of leave in each calendar year.
When should I apply for vacation on demand?
The employee submits the request for the leave at the latest on the day of its commencement (Art. 167 of the Labor Code). According to the judgment of the Supreme Court of November 15, 2006 (I PK 128/06), it is required to do so before starting work on a given day. Reporting NJ after the start of the "day" and an attempt to use it as an excuse does not have to be respected. In addition, it may constitute a serious breach of obligations under the employment relationship and result in termination of the contract without notice, due to the employee's fault.
In what form is the request for leave on demand?
As the form of applying for NN is not regulated by law, freedom of choice is assumed - from a written application to an SMS (in the case of a notification other than in writing, the employee completes the application immediately after returning to work). He is obliged to wait for the employer's reply (judgment of the Supreme Court of September 16, 2008, II PK 26/08). If he uses the NŻ, despite the lack of a response or refusal, he may (but does not have to) justify the termination of the contract by the employer without the notice period. The case where the dismissal of an employee turned out to be unjustified ended with the judgment of the Supreme Court of January 26, 2005 (II PK 197/04). Both cases concerned by the above-mentioned judgments of the Supreme Court concerned the commencement of leave on demand, despite the lack of a reply or a negative answer. The conclusions were extremely different - in one case, the use of NF turned out to be a serious offense justifying dismissal of an employee under disciplinary procedure, in the other case the rejection of the application for NF was unjustified, so there was no right to reject it and dismiss the employee. This shows the possibility of interpretation, therefore it seems appropriate to wait for the employer's response.
What about unused leave on demand?
The leave on demand for 4 days a year can be taken individually, partially or in full - this should be stated in the application. What happens if you do not use NŻ leave? Contrary to the rest of the annual leave, NN leave can only be taken during the calendar year, from January to December. This does not mean, however, that the unused NŻ is lost, on the contrary - it goes to unused use. This is stated in the position of the Legal Department of the GIP (GPP-110-4560-170 / 08 / PE on the deadline for granting outstanding leave on request to employees, henceforth Position):
“If an employee entitled to 26 days 'leave did not take six days' leave in 2007, including four days 'leave on demand, in 2008 he will have six days' outstanding leave. However, the obligation to use the outstanding leave until March 31, 2008 will only apply to two days of annual leave, as the remaining four days of the outstanding leave were unused leave on demand in 2007. "
Since the publication of the Position, changes to the KP have extended the deadline for the overdue use, but the lack of the deadline for the use of NŻ has remained unchanged.
Pursuant to Art. 168 KP, unused leave may be used until 30 September of the following year, but this provision does not apply to leave on demand. It is true that it loses its power as available immediately (ie upon request), but continues as a "special rules" vacation - to be used without a time limit (there is no provision in the KP, however, which would indicate such a date).
This makes it possible to safely plan it as an extension of the usual holiday leave in the next year, and even later, until the expiry of the period. The lack of regulations in this regard aroused much controversy, hence the issued position of the Legal Department of the General Inspectorate of Labor and Social Policy.
When can I expect my application for vacation on demand to be rejected?
The employer may dismiss an employee from their leave (or refuse to grant leave upon request) when there are special circumstances:
- the necessity to carry out a rescue operation on which life, health or property depends,
- the need to remove defects in the facility to be handed over,
- unexpected accumulation of works, which the employer could not foresee, and their failure to perform them may seriously threaten the company's position on the market.
The above-mentioned circumstances are not subject to external assessment, the only opinion is the employer. The employee may negate his assessment before the Labor Court, but until then the dismissal is treated as an official order, failure of which may result in the termination of the contract without the notice period. When recalling an employee from vacation, the employer covers all related costs - flights, holidays, etc. In a situation where an employee leaves a dependent family on holiday, also the costs of their return and the costs of lost holiday should be covered by the employer. The reimbursement of costs is made on the basis of the bills provided by the employee, if there are no such bills, the rates applicable in the company are specified in the collective labor agreement, employment contract or remuneration regulations, and if there are also no relevant provisions in the documents, the rules for accounting for business trips apply.
Pursuant to KP, unused vacation leave expires after 3 years. This also applies to NŻ's leave. There are cases of granting outstanding leave from a decade ago, but for this to happen, it is necessary to prove the negligence of the employer who refused or prevented the planning and use of the leave.