Nutshell
Mr Du entered into a labor contract in July, 2016 with a Shanghai international tourist agency as an operator which began from July, 2016 to June, 2018, providing that Mr Du’s monthly salary is 5000 yuan. In the mean time, Mr Du sign for the handbook, in which the Leave Chapter provides that employees can have the annual leave after he works over one year. Mr Du went though the entry formality on the same day and his labor handbook shows he began to work in May, 2014 and leave the last employer in June, 2016.
Mr Du did not have any annual leave in the second half of 2016. In Jan 2017, Mr Du resigned and the employer accepted. But when Mr Du asked for the compensation for the annual leave, the employer rejected, Mr Du claim to the labor tribunal for the two-day annual leave 919.54 then.
Issue
The issue of this case lies whether the entitlement to annual leave requires one-year constant work in the same company.
The company holds that it is provided in the employee handbook that only employees working over one year for the employer can be entitled to the annual leave. Mr Du signed the handbook without any disagreement, therefore it shall be executed accordingly.
Mr Du holds that according to the Ordinance on Employee Paid Leave, employee working longer than one year but shorter than ten yean shall have five-day annual leave.
Judgment
The tribunal holds that t according to the Ordinance on Employee Paid Leave Art 2, employee of organization, enterprise, public institution, individual business, etc. working longer than one year but shorter than ten yean shall have five-day annual leave. According to Du’s labor handbook, he satisfied the requirement of annual leave. In proportion to the rest days in 2016, Mr Du shall be given 2 days, since the employer did not arrange that, Mr Du’s claim is supported.
Comment by Lawyer Tang
This is a case on annual leave.
Ordinance on Employee Paid Leave Art 2, employee of organization, enterprise, public institution, individual business, etc. working longer than one year but shorter than ten yean shall have five-day annual leave. And Art 3 of Measures of the Implementation of Paid Leave provides that employee working over 12 months can have paid annual leave. The two articles is indeed confusing. When we check the handbook for clients, we found quite a few employers write that employees need to work over one year to have annual leave. This is actually a misunderstanding of law.
According to the Response to the Related Problems of Measures of the Implementation of Paid Leave, Art 1 provides that working over 12 months in the Measures of the Implementation of Paid Leave Art 3 covers not only the time in the employer but also to different employer. I.e. the precondition for annual leave is not to work in the employer over 12 months. In this case, since the labor handbook suggests that Du worked over one year in previous employer, he then satisfied the requirement of annual leave. Since the employee handbook breached the mandatory regulation of the law, then void.
Measures of the Implementation of Paid Leave Art 5 provides that the new employee that meets the requirement of annual leave, is entitled to the days in proportion with the rest days of the calendar. After the math, Du shall have 2 days leave in 2016.
Ordinance on Employee Paid Leave Art 5 provides that the employer due to the need of work shall not arrange the annual leave, with the agreement of the employee, shall compensate the employee with 3 times the daily income. Since the normal salary is paid, the rest 2 times shall be paid, i.e. 5000÷21.75×2×200%=919.54 yuan.
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