Dear, here is a book of "protecting the law" of paid annual leave
In the hot summer, the summer vacation is here, it is time to put down the work in hand and start the annual "holiday carnival" mode.
For office workers, whether they plan to travel with their wives, or meet up with three or five friends; whether they are enjoying the sunny beach, the blue sea and the silver sand, or staying at home with air conditioning... Paid annual leave is their right to enjoy. .
However, in real life, litigation disputes caused by employees due to annual leave occur from time to time.
Today, we invite judges from Beijing Xicheng Court to interpret some of the most common “misunderstandings” in paid annual leave in the workplace based on typical cases from previous trials.
Case number one
The number of vacation days stipulated by the company conflicts with laws and regulations. Which one should prevail?
In July 2017, Ms. Zhang joined a trading company and the two parties signed a three-year labor contract.
However, one month before the expiration of the contract, Ms. Zhang received a notice of termination of the labor contract.
The company decides that after the contract expires, it will not renew it, and will pay it a three-month economic compensation based on the average salary of the 12 months before the resignation, totaling more than 20,000 yuan.
However, Ms. Zhang believes that she has accumulated 10 years of service when she joined the company and should enjoy 10 days of annual leave every year according to regulations.
During her tenure, there were only 5 days of annual leave each year, so the company was required to pay the remaining 5 days of annual leave wages each year.
The company stated that according to the company’s employee handbook, employees should enjoy 5 days of annual leave each year. Ms. Zhang is aware of and recognizes the company’s leave system and has never raised any objections, and has also taken annual leave in accordance with the regulations.
The company’s vacation system does not violate the mandatory provisions of the law and is effective, and both parties have reached an agreement on compensation at the time of resignation. Ms. Zhang has no right to claim annual vacation again, so she does not agree to her request.
The court of first instance held that the social security payment record provided by Ms. Zhang was sufficient to prove that she had worked for 10 years at the time of employment. According to the Regulations on Paid Annual Leave for Employees (hereinafter referred to as the "Regulations"), Ms. Zhang worked in a trading company in accordance with the law every year It should be entitled to 10 days of annual leave. Therefore, Ms. Zhang maintains that the salary of the remaining untaken annual leave during the term of office complies with the law, and the court supports it.
The company refused to accept the appeal to the court of second instance, and the court of second instance finally rejected the appeal and upheld the original judgment.
Judge's statement
Don't panic when the annual leave is not taken
The "Regulations on Paid Annual Leave for Employees" is a regulation promulgated by the State Council for the whole society. All employers shall ensure that employees enjoy annual leave in accordance with the regulations.
It clearly stipulates that workers who have worked continuously for more than one year are entitled to paid annual leave.
If the employee has accumulated 1 year but less than 10 years, the annual leave is 5 days; if the employee has reached 10 years but less than 20 years, the annual leave is 10 days; if the employee has reached 20 years, the annual leave is 15 days.
Regarding the number of annual vacation days, the regulations also stipulate that the number of annual vacation days in the current year shall be determined according to the remaining calendar days of the unit. The part less than 1 full day after conversion does not enjoy annual vacation. The conversion method is: (the remaining calendar days in the current year/ 365 days) × the number of days of annual leave the employee should enjoy throughout the year.
When the employer and the employee terminate or terminate the labor contract, if the employee does not arrange for the employee to take full annual leave in the current year, it shall calculate the number of days of untaken annual leave according to the working time of the employee in that year, and pay the untaken annual leave salary, but the conversion There is no need to pay the untaken annual leave wages for the part less than one full day later.
At this time, the conversion method is: (calendar days elapsed in the current year/365 days) × the number of annual vacation days the employee should enjoy in the whole year-the number of annual vacation days that have been arranged in the current year.
Regarding the limitation of annual leave, according to the relevant provisions of the Labor Dispute Mediation and Arbitration Law of the People’s Republic of China, the limitation period for applying for arbitration for labor disputes is 1 year, and the limitation period for arbitration is calculated from the day when the parties knew or should have known that their rights were infringed. .
Taking into account the characteristics that annual leave can be centralized, divided and arranged across years, the time for workers who have not taken paid annual leave each year should receive annual leave wages from December 31 of the second year.
Case two
Is it legal for an employee to voluntarily resign and is refused to pay the untaken annual leave wages?
When Mr. Liu joined the company, he signed a one-year labor contract with the company. After the contract expired, he renewed a three-year labor contract.
Three years later, Mr. Liu signed an open-term labor contract with the company again.
In August 2019, Mr. Liu verbally resigned on the grounds that his family was injured. He has not worked in the unit since then.
After that, Mr. Liu formally submitted a written "Resignation Application", and the unit also agreed to terminate the labor relationship.
After resignation, Mr. Liu applied for arbitration on the grounds that the unit did not pay the salary of the 2019 untaken annual leave.
Because of dissatisfaction with the arbitration result, the lawsuit was brought to the court, requesting the ruling unit to pay its annual leave wages for the current year.
During the trial, the unit stated that Mr. Liu took the initiative to apply for resignation, so he should not be paid for his untaken annual leave that year.
The court of first instance found that Mr. Liu's proposal to terminate the labor relationship on his own will not affect his claim for the unrelied annual leave wage difference.
Since Mr. Liu did not take annual leave in 2019, and the unit failed to provide evidence to prove that he had arranged his annual leave, the court supported Mr. Liu's claim for untaken annual leave wages.
Judge's statement
Untaken annual leave should be compensated for three times the salary income bag
The focus of this case is whether the worker voluntarily resigns whether he can ask for untaken annual leave wages.
Enjoying annual leave is an important right to rest that cannot be deprived of, and it is also a statutory right of workers. As long as they meet the conditions for enjoying paid annual leave, they should enjoy annual leave. This right should not be due to the worker’s voluntary resignation or The employer proposes to dissolve or terminate and make a distinction.
my country regards employees’ paid annual leave as an employer’s obligation, and the employer shall make overall arrangements. The employer shall also bear the burden of proof for whether the employee enjoys the annual leave.
Article 10, paragraph 2 of the "Measures for the Implementation of Paid Annual Leave for Enterprise Employees" (hereinafter referred to as the "Measures") stipulates that the employer arranges for employees to take annual leave, but if the employee proposes to take annual leave in writing for his own reasons, the employer can only Pay their wages during their normal working period.
If the above conditions are not met at the same time, the employer shall be deemed to have failed to perform its statutory responsibilities and shall pay 3 times the daily salary as the untaken annual leave salary.
The first paragraph of Article 12 of the "Measures" stipulates that "when the employer and the employee terminate or terminate the labor contract, if the employee is not scheduled to take annual leave in the current year, the annual leave shall be converted according to the working time of the employee in that year. The number of days and pay for untaken annual leave, but the part that is less than one full day after conversion will not be paid for untaken annual leave."
The term “when the labor contract is terminated or terminated” does not specify the reason for the termination or termination of the labor contract. It should be understood as a description of the state of fact, that is, no matter which party proposes to terminate or terminate the labor contract, as long as the termination of the labor contract occurs Or the factual state of termination, the employer will need to pay the employees who should take annual leave wages.
In addition, according to the "Regulations", workers can enjoy paid annual leave when they meet the conditions for establishing a labor relationship with the employer and have worked continuously for more than one year.
At the same time, if the employer is unable to arrange annual leave for employees due to work needs or arranges annual leave for more than one year, it shall obtain the consent of the employees themselves.
If the unit and the employee dissolve or terminate the labor contract, if the employee is not scheduled to take full annual leave in the current year, the number of untaken annual leave days shall be calculated according to the working time of the employee in that year, and wages shall be paid.
According to this, the salary of untaken annual leave = the number of days that should be taken and the annual leave × daily salary × 3, where daily salary = monthly salary income ÷ monthly salary days (21.75 days).
Therefore, even if the labor relationship is terminated due to the employee's voluntary resignation, the employer should pay the employee the annual leave wages for the year that the employee is terminated.
Case three
What should I do if the statute of limitations for annual leave lawsuits is "overdue"?
Affected by the epidemic, since March 2020, Xiao Li's company has not paid him full wages on time.
In a blink of an eye, half a year later, Xiao Li served a notice of termination of labor relations to the company on the grounds that the company was unable to live normally due to the company's long-term wage arrears, and filed a lawsuit to the court, demanding payment for the outstanding years from 2017 to 2020. The leave salary is more than 44,000 yuan.
The company stated that it had uniformly arranged employees to take annual leave before and after the Spring Festival, and Xiao Li had taken the annual leave from 2017 to 2020. During the leave, wages were paid normally, and the 2017 paid annual leave claimed by Xiao Li has exceeded the statute of limitations.
Xiao Li approved the Spring Festival holiday arrangement, but denied paying wages.
Subsequently, the two parties submitted relevant evidence for the dispute.
The court of first instance held that, in accordance with the law, Xiao Li claimed that the salary for untaken annual leave in 2017 has passed the arbitration statute of limitations.
In addition, the evidence submitted by both parties shows that the company has paid wages in full.
Regarding the untaken paid annual leave wages in 2020, the employer shall bear the burden of proof. Although the company has arranged Xiao Li's leave, it has failed to provide sufficient evidence to prove that it has arranged Xiao Li's annual leave or has paid the untaken annual leave salary, so it should Bear the unfavorable consequences of proof.
In the end, the court of first instance only supported Xiao Li's claim for untaken annual leave wages in 2020, but did not support the claim for untaken annual leave wages in 2017.
Xiao Li refused to accept the verdict and filed an appeal.
The court of second instance finally rejected the appeal and upheld the original judgment.
Judge's statement
Both parties to the dispute have to prove that the arbitration statute of limitations is only one year
Generally speaking, from the perspective of labor law, most of the statutes of limitations mentioned in Article 27 of the Labor Dispute Mediation and Arbitration Law refer to Article 27, paragraph 1, "The statute of limitations for applying for arbitration for labor disputes is one year. It should be known that it will be counted from the date of infringement."
At the same time, the fourth paragraph of this article clarifies that “if a dispute arises due to arrears of labor remuneration during the labor relationship, the worker’s application for arbitration shall not be restricted by the arbitration limitation period specified in paragraph 1 of this article. However, the termination of the labor relationship shall be based on the labor relationship Submitted within one year from the date of termination".
Therefore, for disputes involving annual leave, both the worker and the employer should bear the burden of proof for the facts of their claims, but there are obvious differences between the facts that both parties should prove.
The facts that the worker should prove: 1. The fact that he has worked continuously for more than one year mainly proves that the worker has the conditions for enjoying annual leave, such as labor contract, wage payment records, social security payment records, etc., generally as long as they can prove that there is a labor relationship , You can prove the fact.
2. The fact that the worker has accumulated working hours, this item is to prove the number of days of annual leave that the worker can enjoy.
According to the regulations on annual leave of employees, the working years of workers in other units can also accumulate working hours in the new unit to determine the number of days that workers can enjoy annual leave.
The facts that the unit should prove: 1. The fact that the employer has arranged for the worker to take annual leave. If the unit cannot prove whether the worker has taken the annual leave, it can be presumed that there is no leave and the annual leave salary should be paid.
2. Although the employer has not arranged for the workers to take annual vacations, but has obtained the written consent of the workers to voluntarily take them continuously. In this case, the employer only pays the workers' normal wages and does not need to pay 3 times the annual vacation wages.
In addition, the "Interim Provisions on Wage Payment" clearly stipulates that the employer must record in writing the amount, time, and recipient's name and signature of the worker's wages, and keep it for more than two years for future reference.
The unit only needs to bear the burden of proof for paying workers' annual leave wages in the past two years, and the workers will provide evidence for the part beyond the two years.
Regarding the annual leave disputes, both workers and employers have the obligation of proof, but the burden of proof is relatively simple. In essence, employers are required to bear more burden of proof.
Therefore, employers should standardize the annual leave system in their daily management. For example, if workers are unwilling to take annual leave, they must confirm in writing. Otherwise, if a dispute arises, the employer cannot provide evidence and bear the risk of losing the lawsuit.
Case four
Can I still enjoy paid annual leave if I have been on vacation for nearly half a year due to illness?
At the end of 2007, Xiao Wang joined a property company as a property manager and signed a written labor contract with the company.
After that, the two parties signed labor contracts many times until they signed an open-term labor contract.
Before he knew it, Xiao Wang had been working in this company for more than ten years.
In June 2019, Xiao Wang was diagnosed with cervical intervertebral disc herniation. He applied for nearly 6 months of sick leave from the company and issued a sick leave certificate once a week.
However, since February, Xiao Wang did not attend the company and did not submit a medical leave certificate.
The company delivered the "Notice" to Xiao Wang at the end of March, informing him that he did not attend work from February to the end of March 2020, and asked Xiao Wang to submit the sick leave certificate, make up the leave procedures, and explain that he did not submit the sick leave certificate in time. s reason.
A week later, Xiao Wang received the "Notice" from the company again. The company stated that Xiao Wang did not submit a sick leave certificate to the company, so he was recorded as absenteeism.
In mid-April, the company delivered the "Notice of Termination of Labor Relations" to Xiao Wang, and stated that Xiao Wang's behavior of "failure to ask for leave or not to go to work without proper reason was regarded as absenteeism, and the cumulative absenteeism for more than 14 days" was serious. Violation of the company's rules and regulations is also a serious violation of discipline, so the decision to terminate the labor contract with him will take effect on April 22, 2020.
As a result of the labor dispute between the two parties, Xiao Wang proposed that the company should pay his 2019 annual leave wages and other applications for arbitration.
Because of his dissatisfaction with the arbitration award, Xiao Wang sued the court.
The court held that, in accordance with the law, Xiao Wang, as an employee who has worked for 10 years, has nearly 6 months of sick leave, and is not eligible for the 2019 annual leave.
Therefore, the court did not support Xiao Wang's request for the company to pay his 2019 unreserved annual leave wages.
Judge's statement
Annual leave is not for everyone, and can’t be taken under five conditions
The "Regulations" also stipulate that employees of units who have worked continuously for more than one year are entitled to paid annual leave.
However, if one of the following situations exists, the annual leave of the year will not be enjoyed: 1. The employee enjoys winter and summer vacations in accordance with the law, and the number of vacation days is more than the number of annual vacation days; 2. The employee takes personal leave for more than 20 days and the unit does not deduct wages in accordance with the regulations 3. Employees who have worked for more than 1 year but less than 10 years, who have taken sick leave for more than 2 months; 4. Employees who have worked for more than 10 years but less than 20 years, who have asked for more than 3 months of sick leave; 5. Cumulative work Employees who have been over 20 years have taken sick leave for more than 4 months.
In addition, the "Measures" also clearly stipulates that if an employee has already enjoyed the annual leave of the current year, and one of the last four provisions of the above-mentioned regulations occurs during the year, he will not enjoy the annual leave of the next year.
According to the above legal provisions, the right of employees to enjoy annual leave is protected by law, but certain conditions should be met:
1. Workers who have not worked continuously for 12 months are not entitled to paid annual leave.
Continuous working for 12 months means that the worker has worked continuously for 12 months without interruption in the same or more than two employers.
If the working hours of the worker in the same employer are not continuous, or the worker joins a new employer after leaving the original employer for a period of time, the worker shall not be deemed to be eligible for paid annual leave.
Judging whether a worker is eligible for “continuous work for 12 months” is generally based on a comprehensive judgment based on the worker’s wage payment records, social security payment records, file records, resignation and entry procedures, etc., and is calculated on a monthly basis.
2. For workers who have worked continuously for 12 months, they need to exclude the circumstances listed in Article 4 of the Regulations and Article 8 of the Measures in order to enjoy paid annual leave.
Judge reminder
1. How to understand the conditions for the enjoyment of annual leave: “Working for more than one year” and “more than one year”?
Will new employees enjoy annual leave this year?
Answer: The "employees who have worked continuously for more than 12 months" as stipulated by the laws of our country means that the workers have worked continuously for 12 months without interruption in the same or more than two employers.
The establishment of the paid annual leave system is designed to protect employees’ right to rest. It is to compensate employees based on their accumulated working hours. The relevant laws and regulations do not limit that “continuous work for more than 12 months” must be in accordance with the employer. The work experience of the unit is related.
Therefore, it should be understood to include situations where employees have worked continuously for more than 12 months in the same employer, as well as situations where employees have worked continuously for more than 12 months in different employers.
If the working hours of the worker in the same employer are not continuous, or the worker joins a new employer for a period of time after leaving the original employer, the worker shall not be deemed to be eligible for paid annual leave.
Therefore, as long as new employees in this year can provide corresponding evidence, such as social security payment records, etc., to prove that they have worked continuously for more than one year, they are eligible for annual leave, and should not be measured by whether they have worked in the new unit for one year or not. .
2. If the annual leave is not taken this year, can it be taken next year?
Answer: According to the regulations, annual leave can be arranged in one year collectively or in stages, generally not arranged across the year.
If it is necessary for the unit to arrange annual leave for employees across the year due to the characteristics of production and work, it can be arranged across one year.
In other words, if the annual leave this year is not taken, it can be extended to take it together next year under certain circumstances, but it can only span one year.
3. Can I still take annual leave after taking marriage and maternity leave?
Answer: Yes.
Article 6 of the "Measures" stipulates that: the family visit leave, wedding and funeral leave, maternity leave and other state-regulated holidays enjoyed by employees in accordance with the law and the period of suspension of work due to work-related injuries are not counted as annual leave.
Therefore, annual leave can still be taken after marriage leave and maternity leave.
This edition / our reporter Wang Jing