Can the employer refuse to leave? Chapter 19 of the RF Customs Code
The right to an annual paid vacation in ourthe country is guaranteed to every employee by law. The articles of the Labor Code regulate the rules and all the nuances concerning holidays, as well as their transfer or refusal to provide certain species for some reason. The decision on the possible refusal by the employer to the subordinate on leave depends on the specific situation. The general rule is that a refusal, when filed and properly filed in time, is a violation of the right to rest and is therefore illegal.
And if the employer still refuses to leave, what should I do? In the event of the absence of a due cause, his actions are subject to appeal by law.
How is the annual leave granted
"Regulates" the holidays Chapter 19 of the LC RF. The right to legally rest can use employees whose work experience in the company exceeds 6 months. After the expiration of this period, the employee may be granted rest on his application, or he is included in the calendar of holidays for the next calendar year. It is this document that regulates the procedure for providing annual paid holidays in a particular organization.
Such a schedule is made at each enterprise or institution at the end of the current year. It is approved not later than December 17. All employees are introduced to the order of vacations for signature.
Can they refuse early vacation?
If the employee decided to rest before the expirationhalf a year's work, can the employer refuse to leave and in what cases? This happens when the employee does not belong to any of the preferential categories listed below.
Those who are on the list of beneficiaries can leave on their first vacation and before the end of the six-month working period.
Who are these benefits? The right to go on early leave belongs to:
1. Underage.
2. Women who are going to a "planned" decree.
3. Those who adopted a small child (up to 3 months).
4. Husbands of women "in the decree."
5. To the co-operators, if for this period of time there is a vacation at the main place of work.
6. Wives of servicemen who are put on vacation with their husbands.
Who else belongs to the preferential category
In addition, we are talking about:
1. Veterans and war invalids.
2. Victims of the Chernobyl accident.
3. Heroes of Russia, Socialist Labor, the USSR.
4. Honorary donors.
5. Victims at the training ground in Semipalatinsk.
If you do not belong to one of the listedpreferential categories, but you need a vacation, for example, for health reasons or for family reasons, the law does not prohibit the granting of the right to rest to such an employee. But it should be understood that this action refers to the rights, and not to the duties of the employer. If he observes the procedure for granting annual paid holidays, the law does not have the right to oblige him to provide a regular employee (not a recipient) with rest before working for six years.
Is it possible to refuse a holiday on schedule?
For each calendar year, a schedule of plannedholidays with the priority of their provision is made and approved at the very end of this year - in December. The approved document is obligatory for execution by both parties - the employer and the employee. But can the employer refuse to leave in spite of the approved deadlines, explaining the impossibility of replacement or other important reasons for production? How legitimate are his actions?
From a formal point of view, such a solutioncontradicts labor legislation. In practice, the authorities are given the right to transfer the leave for another time. It is done only in the event that such an alternative is understood by the holidaymaker himself. That is, this action is in accordance with the law in case the employee agrees with the received transfer offer.
Some nuances
Such a transfer of leave is legally possiblenext year. But here we should not forget about the ban of a two-year period of work without official rest. In addition, holidays are not tolerated to minors who work, even if they agree.
And can the employer refuse to leave without a transfer offer? Definitely not. The law categorically prohibits a refusal in the case of an officially drawn up and signed schedule.
But this does not apply to situations in whichsubordinates request leave in other periods not agreed upon in documentary terms. If the application for leave "out of the queue" is filed without any special reason, this may cause a legitimate refusal.
Sometimes it is a question of dividing annual paid leave into parts. But at least one of them should not be shorter than 14 days.
Instead of rest - compensation?
And whether it is possible to agree so - the head inhe refuses to leave, but in return offers to pay compensation for his entire period in money. According to the law, this is impossible. Although the Code provides for a variant with payment of monetary compensation to replace the unrealized right to rest, money is only allowed to be paid for that time, which exceeds the annual compulsory period of 28 calendar days.
For example, with a vacation of 35 days,the employee of his own will has the right to receive compensation for a period equal to 7 days. And, let's remind once again, such a replacement of vacation days with money can only take place on the initiative of an employee, not the authorities.
In addition, there are categories listed in the third paragraph of Article 126 of the RF Labor Code, to which this right to compensation is not applicable, and they will have to rest the whole period in full.
Leave without pay - a sample and important nuances
The so-called administrative (orunpaid) leave can be taken by an employee at any time. This does not depend on the amount of work experience. The payment is not saved. In order to receive such an employee, the employee should send an application to the employer with a request and, most importantly, a request for justification, that is, explain the need for such. The refusal or consent depends on how important the boss's motivation seems to the employee.
Is it possible to refuse leave without content? Yes, except when both of the following conditions are true:
1. Citizens belong to the category of those who have the right to compulsory provision of such administrative rest.
2. The limit of days regulated by law "without content" has not yet been exhausted.
Who is classified as such beneficiaries? You can not refuse requests:
1. To the participants of the Second World War. For them, the limit of the duration of administrative leave is 35 days per year.
2. For working disabled people - the same period for them is 60 days.
3. Those who have reached retirement age. If the pensioner continues to perform employment duties, he is granted the right to annual leave without maintenance for 14 days.
4. Widows or widowers of those killed in service, or as a result of trauma, illness, injury, caused by a production reason. Here the limit is also 14 days.
5. It is obligatory to provide five days a year to the one who had a birth (death, marriage) of a close relative.
This list, established by Article 128The Code is not exhaustive. Additional guarantees in the social sphere are possible in separate legislative acts and internal regulatory documents of companies-employers. Most often in holidays at their own expense, employees are very rarely refused.
In the photo below you can see what the application for a leave without pay (sample) looks like.
Let's talk about holidays for women
Now it is a question of social holidays and concerns pregnant women and young mothers who went to work. These persons are classified as employees protected by law.
According to the Labor Code, all womenguaranteed the right to use maternity leave, as well as extended leave to care for the baby until his three years of age. But in the real world, the rights of pregnant women and young mothers are very, very often violated.
Can they not let go on another vacation on the eve of the decree?
Can the employer refuse to leave?pregnant woman, going to the decree, motivating it with the forthcoming decree (and such situations are not uncommon)? It should be clearly understood that such a refusal refers to the most serious violations of labor law.
In fact, the fact of pregnancy "works" not on the employer, but on the employee. It goes into the category of "beneficiaries" and can request a regular vacation outside the schedule.
It is quite legal and very convenient for a future motheris the option of leaving the decree immediately after the next vacation. If in the implementation of this option the authorities refuse, this already gives the right to appeal with higher authorities.
Unfortunately, it is impossible to give a similar uniquelya positive answer to the question whether a pregnant woman can refuse a regular holiday in the most general case (when it is not yet a question of a decree). The employer may not let the full-time employee leave on vacation outside the agreed schedule. However, the pregnant woman enjoys additional privileges. For example, it can not be dismissed for absenteeism.
And can the authorities not let the employee in the decree?
What is maternity leave? In fact, it consists of two legally unequal parts - maternity and long leave, provided for the care of a child. The first as such for holidays does not apply.
The basis for its provision and payment is the sickness certificate. That is why a refusal to grant such a period of rest is impossible in principle.
Leave for childcare, according to the generalrules, are provided until the moment when the child reaches the age of three. Their duration is not necessarily equal exactly to three years. Apply for such leave a woman is entitled to any day of the specified period. The vacation ends automatically the next day (working day) after the child's three-year birth date.
It can be provided not only to the mother, but alsoAny person who actually cares for the child. At the same time, payment (quite modest, in the form of social benefits) is prescribed by law only in the first year and a half.
Quite often (mainly on financialreasons) a young mother is forced to go to work earlier than the baby is "knocked" three years old. But sometimes for family reasons she needs to return to the decree again. The employer can be against such a decision.
The law specifies that such a refusal appliesto violations of the social guarantees prescribed in the TC. That is, after interrupting the decree before the appointed time, the woman is not deprived of the right to retire on the same leave in case of necessity.
What kind of refusals are legal?
The main part of the laborlegislation is focused on protecting the interests of workers. But there are norms in it that do not allow abuse of one's rights by employees. This includes the list of situations when the refusal of leave on the part of the employer is legal.
So, let us list the reasons why you will be refused legitimate reasons for rest at the time that you have chosen for yourself:
1. Employees who are not related to the preferential category were requested to leave during the first six months of performing their duties.
2. An application in writing, duly executed (if accepted in the organization) was not filed on time. The need for writing an application is not available in the case of a leave in accordance with a pre-compiled schedule. In this case, the employee has enough knowledge in advance - for 14 days.
3. If the employee intends to issue the dismissal immediately after the requested leave.
4. If there is a serious enough production need. But, as already mentioned, this basis is used only with the voluntary prior consent of the worker.
If you are refused, be sure to ask for reasons. Knowing them, you can easily figure out how legitimate the actions of the leadership.
Art. 173-177 TK RF: study leave
Such holidays are provided for those citizens who combine study and work. In order for claims to receive such leave to be justified, certain conditions must be met:
1. An appropriate level of education is obtained for the first time by an employee. What does this mean in practice? If a correspondence student is employed, who does not yet have a higher education, he is entitled to leave for a student. But with graduated higher education, he can apply for this only when studying in a magistracy or graduate school.
2. If the worker manages to study simultaneously in several educational institutions at the same time, he writes an application for study leave only for a session in one of them - at the choice of the student himself.
3. When the employee is a part-time employee, he is not entitled to such leave. Educational leave is given only at the main place.
4. It is provided only on condition of state accreditation of the educational institution where the employee is educated.
5. The compulsory document attached to the application for study leave is the certificate issued by the educational institution.
6. The duration of such leave must be within the established limit. Perhaps its excess, but only by mutual agreement with the employer.
If all the above conditions from the sidethe employee is respected, but nevertheless he is denied student leave, the actions of the authorities can be considered as a violation of labor legislation, and it can be appealed in due course.
