“An employee has the right to appoint his own vacation”: The labor inspectorate was bombarded with complaints

The Labor Inspectorate receives many questions about vacations: some are not allowed in, while others are forced to take vacations. Those who remain are overloaded with work under threat of dismissal. Is this legal?

The Labor Inspectorate receives many questions about vacations: some are not allowed in, while others are forced to take vacations. Those who remain are overloaded with work under threat of dismissal. Is this legal?

Olena Smolska, a lawyer-consultant of the Labor Inspectorate, answered Rus.Postimees’ questions in the studio.

Excerpts from the conversation :

– How often do workers have problems with vacations this summer?

– With the beginning of the holiday season, questions and disputes between employee and employer become much more numerous. The number of calls to the Labor Inspectorate is also noticeably increasing.

Typical complaints relate to postponing vacations or wanting to use vacations right away. The employer does not agree to change the work schedule and accommodate the employee. Disputes arise about how many days of vacation who owes whom, how they are paid, etc.

– If an employee is not allowed to go on vacation, what to do?

– First of all, you need to understand why they won’t let you go. It is generally the right of the employer to determine the vacation period for employees. For this purpose, a vacation schedule is drawn up – at the beginning of each year, no later than March 31. In the first quarter, the wishes of employees are accepted, categories of beneficiaries are taken into account – parents of children under 6 years old, up to 10 years old, mothers before and after maternity leave, etc. They decide for themselves when they go on vacation. The rest are optional. Whenever possible, the employer takes into account the preferences of employees.

The schedule approved in advance is brought to the attention of the employee and comes into force.

– Why are complaints pouring in to the Labor Inspectorate?

– Not all employers adhere to the law and draw up a vacation schedule. Thus, they take risks. If the employer does not draw up a vacation schedule in a timely manner, after March 31, he loses the right not to allow the employee to go on vacation.

If the employer does not draw up a vacation schedule in a timely manner, after March 31, he loses the right not to allow the employee to go on vacation. In this case, the employee can assign his own vacation.

In this case, the employee himself has the right to determine when he wants to go on vacation. To do this, he must provide the employer with a written application at least 14 days before the start of the vacation.

And only in emergency situations does the employer have the right to refuse such an employee leave. We are talking about an emergency that threatens to damage the employer’s property, force majeure circumstances such as a fire or flood, when production cannot be done without this employee. Vacation can be interrupted, postponed or rescheduled.

– If there is no force majeure, and the employee is not allowed to go on vacation. What should I do?

– If there are no such circumstances, and you are not allowed to go on vacation, you should simply notify the employer that you will be going on vacation and see what he does.

– What if he fires the employee?

– An employer cannot refuse an employment contract without a legal basis. All legal grounds are specified in the Employment Contract Law. The grounds for dismissal may be any violation on the part of the employee, failure to comply with reasonable orders of the employer, absenteeism, or working while intoxicated. These must be serious violations on the part of the employee. In the ordinary course, without compelling reasons, the employer cannot terminate the employment relationship. It is impossible to dismiss an employee who has exercised his legal right to leave in one day.

It is impossible to dismiss an employee who has exercised his legal right to leave in one day.

The employee can also challenge the refusal to grant leave. To do this, you need to go to court or a labor dispute commission. However, you must appeal the employer’s decision within 30 calendar days from the date of receipt of the notice from the employer, and not at the end of the employment contract.

– In what cases can an employee be forced to take leave?

– There are also such complaints to the Labor Inspectorate. In some cases, employers try to solve their financial problems in this way. It's not always legal.

If an employer decides to unilaterally send an employee on vacation (for example, on a collective vacation) without his consent, without first noting anything in the vacation schedule, then this is illegal. It is necessary to have a vacation schedule or an application from the employee.

The employee may not agree to go on vacation and demand work. It is the employer’s responsibility to provide the employee with an appropriate workload and pay wages in a timely manner.

– At the same time, unused vacation will not be lost?

– The employee will go on vacation according to a previously drawn up vacation schedule or when he himself wants, if such a schedule does not exist. The employer may ask the employee to make concessions and compromises, but decisions to send him on forced leave cannot be made unilaterally.

– Should I give in to threats of dismissal?

– You cannot give in to blackmail from your employer, but people and situations are different. Someone is afraid, worried, trying not to aggravate the situation. However, you need to know your rights and defend what is required by law.

– Does the employer have the right to burden the employees remaining at the production or office with double work?

– This is also a very sensitive question. An employer can shift some of the responsibilities of an absent employee to his colleagues, but this does not mean that the employee should be double-loaded. In this case, it is also necessary to have an agreement between the employer and employee on how to proceed. For example, finish urgent projects and postpone something until a later date. If processing occurs, it must be paid additionally. You can also agree that the employee is entitled to an additional payment during the replacement period.

– Double pay for double work?

– No, the parties agree on the amount of additional payment. The only restriction based on the law is not lower than the minimum wage.

More details in replay!

Postimees Studio: Is it possible to exclude or kick an employee on vacation? Presenter's clothes: Tallinna Kaubamaja / Andiata Photo: Konstantin Sednev

• How often do vacation problems arise this summer?
• Can an employer not allow an employee to go on vacation?
• Is it legal to force people on vacation?
• Can an employee disagree?
• Is it considered the norm to work double duty instead of taking vacations?
• Can an employee refuse increased workload?
• If an employer threatens to fire you, what should you do?
• What to do to avoid problems?
• When is the best time to go on vacation?

Presenter's clothes: Tallinna Kaubamaja / Andiata

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