Legal characteristics of leave on request

This study presents the issues related to the legal nature of the employer's obligation to grant on-demand leave to an employee. This problem is relevant not only from the point of view of the science of labour law, but also from the case law of the general courts.

It also has a practical aspect in relation to the employer and the worker in the sense that the unplanned and unexpected absence of the employee at work may cause a significant disorganization of the workplace, and not giving permission to leave complicate the personal situation of the employee.

1. Introduction

On 1 January 2003 the so-called on-demand leave has entered into force. Namely in the bill of 26 June 1974 Labour Code 1 (further as: k.p.) a new one appeared Article 1672 .

According to that provision, the employer is obliged to grant at the request of the employee and within the time limit specified by him or her no more than 4 holiday days in each calendar year. Such a request shall be made by the staff member at the latest on the date of commencement of the leave.

The reason for the on-demand leave was to allow the worker to take leave in a situation previously unforeseeable and causing him to be unable to attend work. Such circumstances include emergency and public events, e.g.

the unexpected need to go to the office during working hours or, for example, in the case of students, the need to go to the university.

2. Holiday leave and on-demand leave

There is no doubt in the case law of the Supreme Court, nor in the doctrine that leave on demand is part of vacation leave. However, leave on request is an emergency institution (because of special circumstances and unforeseen arrangements or plans, but not exceptional, i.e. a derogation from applicable law, adopted custom, provisions).

It has distinct characteristics from holiday leave. On-demand leave is usually reported on the day of its commencement, and therefore its purpose is different from that of regenerative and recreation.

This leave is an exception to the principle of Article 163(1) k.p., according to which the employer decides on the date of use of holiday leave by employees.

On request leave is of a special nature, it is a statutory privilege for an employee to be prevented from working in cases of unforeseen sudden occurrence of various life situations. It is a privilege that narrows down the employer's free will because it limits the possibility of rational creation of the work process. Because of its short dimension, it will never be a real threat to holiday leave. However, it will reduce its size and, following this, the size of the days for regeneration and rest.

The key issue to determine is whether an employee's demand has cumulative features: the actency and urgency, i.e. whether the reasons which caused such a request are sudden and previously unpredictable. Therefore, not every claim for on-demand leave can be qualified as legitimate for Article 1672 k.p., and this is because this request will not be made in those specific circumstances which determine its granting.

3. Request moment

Provision Article 1672 dd. 1 k.p. clearly indicates that the employer is obliged to grant leave at the request of the worker. The wording here clearly suggests that it is the worker who should make his request in this regard, on the basis of which the employer should grant leave in turn.

The employee shall have the right to make a declaration of his intention to take leave on request in any form. However, it seems he should point out that this is about on-demand leave. Otherwise, the employer will not be required to grant unconditional leave. WD.

2 In addition, the legislator cited above indicated that the staff member had requested leave at the latest on the date of commencement of the leave. It is worth noting that this provision refers not to the working day, but to the ‘day of starting leave’.

However, in view of the fact that leave is granted on the working days of an employee on an hourly basis corresponding to the daily working time, a worker is hypothetically entitled to make his request during a ‘working day’.

According to the SN presented in an opinion from 15 November 2006[2] a request for leave on request shall be made at the latest on the day of its commencement, understood as the time when the worker is expected to start working according to his working time schedule. The working rules or the practice of the employer (usually) may provide for a subsequent application for leave on demand.

In addition, the statement of reasons for that ruling explicitly states that the term ‘at the latest on the date of commencement of leave’ should be understood as a synonym in which a worker should proceed on a given working day and not as a synonym for the end of the calendar day. In the light of the above interpretation, a worker's declaration of wish to take on leave on demand at the end of the working day or after working hours resulting from his working time schedule may be deemed unjustified, resulting in an unjustified absence.

4. Obligation of the employer to grant leave in SN case law

In the judgment 3 SN of 26 January 2005 the view was expressed that: ‘to the extent regulated Article 1672 The employer's consent to the use of leave is not required and the worker does not have to justify his request for any reason.

The purpose of the provision is to enable an employee to settle personal matters within a time limit convenient for him without having to inform his employer about them (...). Since based on Article 167(1) k.p.

the employer may cancel the worker from leave due to unforeseen circumstances, or, if such circumstances arise, may object to the use of leave in the form of Article 1672 k.p. and request the employee to be present at work.’

In the judgment 4 to 7 February 2008 SN argued that ‘the application for on-demand leave should be notified at the latest on the date of commencement of the leave, but until the employee is expected to start working according to his working time schedule.

This position takes into account the organisational function of labour law, which consists in ensuring the proper organisation of work through legal standards. (...) The application for leave later does not oblige the employer to grant leave and, consequently, the absence of an employee at work may not be justified in such a situation."

In turn, in the judgment 5 to 16 September 2008 The SN ruled that an employee could not start leave “on demand” until the employer agreed, i.e. he would not grant such leave.

A clear clarification of such rules for the use of on-demand leave gives rise to the finding that situations may arise in which an employer may refuse to take account of an employee's request, since a statutory requirement to grant leave by an employer would be unnecessary if the employer's activity in any case was to be limited to accepting the employee's request.

‘The obligation to grant on-demand leave is therefore not absolute, and the employer may refuse to request an employee due to special circumstances which make it necessary for his special interest to be protected to be present at work.

An application for leave is merely a request for understanding Article 167 2 The possibility of exercising this right depends on the employer giving leave.

(…) Although the employee is not obliged to indicate the reasons for requesting leave on a specific day(s) on the basis of Article 167 2 k. e., the existence of special circumstances related to health or other random accidents, forcing the absence of an employee at the workplace, could be opposed to the interests of the employer, even justifying the refusal to grant leave.’

In the judgment 6 to 28 October 2009, by interpreting Article 167 2 K.p., SN considered that the employer's obligation to grant leave at the employee's request was not absolute because the employer could refuse such a request, due to the special circumstances on the part of the employer. He also came to the conclusion that on-demand leave is identical to holiday leave, except as provided for in the Act. Therefore, the employer may refuse to agree to the request, as it may do in respect of holiday leave.

5. Leave as employee's entity law

Leave on demand is for an employee, and it will also be entitled to say that the employer would not give such leave at all and that only a reasonable and wise employer sees the benefits of the leave.

If we support the argument that the employer has a decisive opinion on the time limit for on-demand leave, this will always lead to abuse on the part of the employer. With the following cases, it will decrease its level of tolerance.

Such an interpretation should be made Article 167 2 k., which will not allow employers to create abuses involving objectively unjustified refusal to grant leave.

Abuses may also occur on the part of employees when an employee, counting on the possibility of refusing leave on demand, is immediately (at the very beginning) given up this dubious privilege for him and decides to circumvent (or perhaps also a violation of the law) in such a way that ‘purchases’ or otherwise obtains a medical discharge which will give him certainty that he will not have to put himself to work that day.

Interpretation Article 167 2 k.p. should always be First, take account of the legitimate interest of the worker, as only then will he be sure that he will be given an emergency and exceptional leave.

6. Summary

On request, leave of absence was introduced to the E.R. in order to make it easier for the worker to be able to make an excuse for failure to work on a given day without prior agreement with the employer, if he finds himself in an emergency situation for him which he could not have anticipated.

The obligation of the employer to grant leave on demand is an absolute obligation. The only requirement is the cumulative occurrence of the actuality and urgency of circumstances which result in an employee requesting leave on demand.

No particular circumstances on the part of the employer may cause the refusal to grant this leave, as they should not be examined and taken into account at all.

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