Any period of vacation granted to an employee being dismissed
should not be permitted to begin until the following day, to avoid
claims that the employee is protected from dismissal.
The Supreme Court has clarified this issue in a case involving an
employee who, in the same letter, was both dismissed and granted
vacation starting on the same day.
The employee was handed the letter after finishing a night shift
from 10pm to 6am.
Employees cannot be dismissed while on vacation under Article 41 of
the Labour Code.
However, the Supreme Court ruled that:
- Article 167(1) of the Labour Code implies that employees should use up any unused holiday entitlement during their notice period, where permitted by the employer
- therefore there is no conflict between Article 167 (1) of the Labour Code and the employee protection under Article 41
- this means it is permissible under the Labour Code to dismiss and grant vacation at the same time
- in this case, the employee was dismissed first and then granted vacation (not the other way round)
- the two events occurred on the same calendar day but on different working days: the vacation only began when the next night shift was due to start (at 10pm that evening)
- the employee was not protected between the end of his last shift at 6 am and the start of his vacation at 10pm (which was the period in which he received the letter)
Law: Case No. II PK 116/10 (Supreme Court); Labour Code, articles 41, 167(1)
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 29/03/2011.