The right to a leave

Does not the holiday leave during the respective calendar year or until the end of the following year deprive the employee of the right to make the holiday in nature or to be compensated in cash?

According to art. 149 of labor Code, the employee is obliged to carry out in kind the recreational leave, each year, during the period when he was scheduled, except in the situations expressly provided by the law or when, for objective reasons, the leave can not be carried out.

For the employer, under art. 146 par. (3) from labor Code, republished, the legislator established the obligation to grant the holiday leave, by the end of the following year, to all employees who, in a calendar year, did not fully carry out the holiday leave to which they were entitled.

This problem has been deducted from the judgment, and in that case, Bucharest Court of Appeal, by civil decision no. 2500/2015 was pronounced and clarified the questions that arise from the issue of not doing in the nature of the holiday leave until the end of the calendar year following that for which the holiday leave is due.

So, leave is a right, as the provisions of art. 144 of the Labor Code and not an obligation for the employee. Leave can be regarded as an obligation only from the perspective of the employer who is obliged to grant it in kind, according to the provisions of art. 146 par. (1) and (2) of the Labor Code, just because the salaried employee has the time to recover his / her work capacity and to prevent the employer from behaving abusively, rejecting employees’ holiday applications under different pretexts.

Moreover, the provisions of art. 146 par. (3) of the Labor Code shows that the employer is obliged to grant leave until the end of the following year to all employees who, in a calendar year, have not fully completed their holiday leave, which shows that the obligation to grant the leave belonged to the employer, and not to the employee, who would remain in passive for the whole year next to the one for whom the holiday was due (in the sense, of course, of an „active passivity”, since the employee presented himself at work, the year following that for which the holiday was due), not requiring the granting of the holiday leave.

If the employee does not apply for leave in the year following the one in which he has worked for 12 months, the consequence is that, after the year following that for which he was due to grant the leave, the employee can no longer ask the employer to perform his / nature, but it will always be able, in relation to the provisions of the final paragraph of art. 146 of the Labor Code, at the moment of termination of his employment relationship with the respective employer, to demand pecuniary compensation of the unpaid leave days.

The fact that, after passing a certain period, a right such as the granting of inactive days of unpaid leave is extinguished only from the perspective of its basic component of „in-kind” making of unpaid leave days, it does not mean that the pecuniary component of the same right shares the same legal fate but, on the contrary, it survives until the interruption of labor relations occurs between the parties, regardless of the reason for that cessation.

The pecuniary component of unpaid leave days remains a right affected by a suspensive condition, namely the condition of termination of labor relations between the parties, without the legislator distinguishing between the different causes that lead to the termination of labor relations.

Article written by Alice Dobrinoiu – Defendant Lawyer specializing in Labor Law

 

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