2023-06-17 10:08:25
We have also identified several illegal practices.
It happens that the employer gives employees a day off if for some reason they cannot provide them with work the next day. And if someone’s vacation has already run out (towards the end of the year), then he sends the person to whom he cannot give work for the next day on unpaid leave. At the same time, it expects employees to notify their request two weeks before the leave. Thus, if an unexpected reason comes up that was not visible two weeks before, he does not issue leave.
Attorney at the Pozderka és Társai law firm, Dr. Bence Nagy according to the law, it is against the law to send an employee on leave, especially unpaid leave, if there is no work. We went through why and when employers do the right thing, and what employees can do.
Vacation is the right of the employer
It is a primary principle that the leave is granted by the employer – after the employee’s preliminary hearing – and not “taken” by the employee. Although the common language says that the employee “goes” on vacation, in fact (in legal terms) it is rather “sent away”, the expert stated. According to the Labor Code (Mt.), seven working days of leave (or a maximum of 44 days of parental leave from January this year, until the child is three years old) is what the employee “disposes of”, within certain limits, but these leaves are also given by the employer Who. The legislation stipulates that the seven working days (in two installments at most) and the parental leave it must be issued at a time appropriate to the employee’s request.
Therefore, the granting of leave is the right of the employer, which is restricted to certain limits by the Mt., but this does not make it the right of the employee, he can only exercise this right in addition to the obligations laid down in the law. Even with the seven working days and parental leave, it is true that we do not “take” the leave, but only declare a request for it.
If we do not complicate the issue by postponing and interrupting the issuance of leave, then basically
but before that, he is obliged to listen to the employee. In addition to this – as in all unilateral decisions – the employer is obliged to decide according to the principle of fair consideration. However, even after the preliminary hearing and fair consideration, it may happen that the employer grants the leave at a time that does not match the employee’s idea.
Leave must be notified two weeks in advance
The date of the leave must be announced no later than 15 days before the start of the leave. So it is
and the fact that he might not be able to give work the next day is also irrelevant. If this is the case, you can bridge it with several legal solutions, for example by temporarily employing the employee in a different position or, if this cannot be solved, by paying for downtime. Simply put: Mt. requires both employers and employees to plan their leave in advance. The employee must notify the request for seven working days of leave 15 days earlier – just so that the employer has the opportunity to notify the leave 14 days earlier.
Therefore, neither the employee can “take off” nor the employer can grant leave within 14 days. However, this can be deviated from (by mutual consent) in favor of the employee, i.e. if the employee requests to take leave within 15 days, the employer can take it out (but is not obliged to do so).
The essence of leave is that the employee is released from the obligation to work, but still receives a salary. More specifically, absenteeism pay, which is simply the average salary of the last semester (average of basic salary plus performance salary plus salary supplement). This is serious legal protection, which the legislator provides for a reason and purpose.
If the employee goes on vacation within two weeks
It happens that someone wants to go to sab because of something unforeseen two weeks in advance. Basically, you cannot do this, the lawyer stated. The function of leave is not to exempt the employee from work due to sudden events (for example, due to a water clock reading), but to rest the physical and mental fatigue of work. If the employee does not rest during his leave, but manages affairs and fulfills personal obligations, then the leave has not achieved its purpose. Of course, this does not mean that it is forbidden to take care of business during the holiday, but since the purpose of the legal institution is rest, the law does not support us not to spend our holiday resting.
The good news, however, is that there is a solution to dealing with sudden privacy problems outside of leave. According to Mt., the employee can be exempted from the obligation to work in the following cases and for periods of time:
- inability to work, health reasons (when not suitable for the job),
- medical institution treatment related to human reproduction procedures,
- mandatory medical examination,
- blood donation (at least four hours),
- breastfeeding mother (in the first six months, once twice a day, in the case of twins, twice for two hours, until the end of the ninth month, once a day, in the case of twins, for two hours a day),
- death of a relative (two working days),
- for the period of participation in studies (general school, as well as training and further training as agreed by the parties),
- volunteer or facility fire service,
- personal participation (at the request of a court or authority or in proceedings),
- preparation for adoption (personal meeting with the adoptable child, no more than ten working days per year),
- personal care (of a relative or of a person living in the same household as the employee, no more than five working days per year),
- for the period specified in the employment rule,
- or justified absence due to a personal, family or unavoidable reason that deserves special consideration.
The last point, which requires special consideration, also includes other unnamed privacy reasons. It is important that both the employer and the employee keep in mind the principle of good faith and honesty and the obligation to cooperate. Accordingly, the employee must immediately inform the employer of personal, family or unavoidable reasons that deserve special consideration.
If, for example, an employee lives alone (he has no family or lives far away from him), reading the water meter may also be a personal reason deserving of special consideration, so he may be exempted from working for the time being. However, as soon as you find out the time of the reading, you must inform the employer (typically days before the reading), and if the waterworks have indicated several times for the reading, then you must agree with the employer on which time you can be excused from work. The employee is entitled to an absence fee for this time.
Unpaid leave
Contrary to its name, unpaid leave is not a type of leave, but “extraordinary free time”, to which, according to the main rule, the employee may be entitled in the following cases:
- until the child reaches the third year of age (for the purpose of taking care of it),
- for the personal care of a child until the child reaches the age of 10,
- for the purpose of long-term (exceeding 30 days) care of a relative, for a maximum of two years,
- for the duration of voluntary reserve military service.
In these cases, the employee unilaterally announces (15 days earlier) the use of unpaid leave. Regardless of this, the parties can also agree on unpaid leave for other reasons and for a different period of time, but this requires an agreement, unilateralism is excluded. So
This cannot arise because, according to the main rule, the tb legal relationship is suspended during the unpaid leave.
If the employer sends the employee on unpaid leave because he cannot provide work (and the employee no longer has leave), it is illegal, a report can be made (at the labor authority in the government offices) or a lawsuit can be initiated (for wage claims by the employer for unpaid days off), but before that it is worth notifying the employer in writing of the violation of the law. Being sent on unpaid leave is illegal if only because the employee will not have social security for that time, which can have a negative effect on the pension calculation, for example.
If there is no work
The employer has an employment obligation, and if it fails to fulfill this obligation for an extended period of time due to its own fault, it may even be grounds for immediate termination of employment on the part of the employee. This mostly arises (it also occurs in judicial practice) when it comes to a profession in which the employee’s primary interest is employment in order to actually work – for example, for a TV announcer, it can be definitely disadvantageous if he does not appear on the screen for several months, no matter how much he gets while his wages. In an assembly plant, next to the tape, this aspect obviously does not arise.
If, through no fault of the employer, he is unable to provide work (for example, a raw material has not arrived, or it is days late, orders have been cancelled, etc.), in that case the workers must be sent to downtime (with an obligation to be available, when the worker must basically be in and other work can also be entrusted to him). In such cases, except for an unavoidable external cause, the employee is entitled to a basic salary, and if he is entitled to a wage supplement based on his working hours, that too.
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