★Nutshell
Chen was employed as an operator in a textile company in June, 2015, with a salary of 3000 yuan per month provided in the contract. As a manufacture enterprise, the company gives a week holiday more after Spring Festival. When Chen applied for annual leave in March 2018, only to be told his annual leave was run out during Spring Festival.
Chen was terminated in May 2018 on breach of company rules. Chen claim to the labor arbitration after termination for the salary for annual leave for 2017 and 2018.
★Issue
Shall the company pay the annual leave salary for Chen?
The company thinks the company has the right to arrange the annual leave, which they arranged before and after the Spring Festival. The employee has already spent the 5-day leave. Therefore he is not entitled to leave again and the company shall not pay the salary.
Chen thinks the company did arrange one-week more holiday, but did not tell about offset annual leave. Therefore, all the staff take it as an extra welfare. Although the company has the right to arrange, the employee still has the right to know. It would be illegal to offset without the employee’s knowledge, therefore the company shall pay the salary.
★Judgment
The arbitration commission holds after trial that the company issues the notice just telling the holiday time, but does not specifically inform that it offsets the annual leave. Therefore it cannot be taken as the overall arrangement. As a result, Chen’s claim for annual leave salary for 2017 and 2018 is supported.
★Comment by Lawyer Tang
This is a dispute on annual leave salary.
Article 5 of Employee Paid Annual Leave provides the employer can make overall arrangement according to the situation of production and personal will. It can be arranged in one time or several times but not to another year. If there is a necessity based on production or specialty of work, it can be arranged in the next year. Based on this, the employer has the right to arrange. Many production enterprises, in practice, same as the textile company, give more holidays during Spring Festival. Low season for one reason, and for another reason, those migrant works can have more time with the family. The intention is good but ends badly like in this case.
How can we avoid this kind of result? It’s simple actually. The company just needs to write down specific that the extra holiday offsets the annual leave. The company needs only to perform the duty of notice. Apart from Spring Festival, outdoor team building is similar. the annual leave shall offset the traveling time. The company shall inform in advance, but not quietly cancel the annual leave.
We hereby give more information on the salary standard and arbitration time limit.
Article 10 of Ordinance on Paid Annual Leave provides in the case that the employee agrees not to have annual leave or have less than the law provided, the employer shall compensate the employee 300% the daily salary for the annual leave, including the actual payment of work time. Therefore the standard of compensation is 200% as 100% is already paid in the salary.
According to the Labor Dispute Mediation and Arbitration Law, the time limit for labor arbitration is one year, why the annual leave can retrospect two years? Take Chen in this case for example, Chen can claim the annual leave for 2017 and 2018. We can understand it this way, as Chen raised the arbitration in May, 2018, he was entitled to the annual leave in May 2017, a year before. Therefore he can claim the annual leave for two years at most, but he cannot claim for 2016.
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