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Employee’s first leave of absence

Every employee has the right to an unpaid leave of absence. As provided by the Labour Code, ‘an employee is entitled to an annual, continuous leave of absence‘(Article 152 § 1 LC). This is an inalienable right – similarly to the remuneration – an employee cannot relinquish their leave, whereas an employer has not got right to refuse to grant a leave to an employee, if an employee is entitled to it. All agreements, regulations and contracts breaching this rule are invalid.

Length of the leave of absence at work, which is vested to an employee, depends on their length of service. Period of the current employment as well as periods of the previous employment at other employers, regardless to the length of the interruptions in the employment, are counted in the leave entitlement. Moreover, employment period, on which the length of a leave depends, includes also years of education completed in different types of schools (article 155 LC). Therefore:  

  • in recognition of a graduation of a basic vocational school we add the number of years provided for the study course, not more than 3 years though;
  • after graduation of a vocational secondary school we add the number of years provided for the study course, not more than 5 years though;
  • the graduates of basic vocational schools who also graduate from a vocational secondary school, add 5 years to their length of service;
  • in recognition of a general secondary school we add 4 years to their length of service;
  • the graduates of a post-secondary school are granted additional 6 years of their length of service;
  • the graduates of a university – 8 years.

According to the article 154 § 1 LC, and taking the above conditions into consideration, the length of an employee’s leave of absence is:

  • 20 days – if an employee has been employed for shorter than 10 years,
  • 26 days – if an employee has been employed for at least 10 years.

In case of employees, who take a job for the first time in their life (as provided by Labour Law – that means they start an employment relationship by signing the contract – it is a crucial provision, as the leave mentioned in the article is not vested to persons working on the basis of civil-legal contracts), the length of their leave of absence is calculated on a specific basis. From this point of view, the first year of employment is a special year for a beginner. According to the article 153 § 1 LC an employee, who takes a job in a certain calendar year, acquires the right to a part of full leave with every month of work he performs. The length of leave in this case amounts to one twelfth of an annual leave that is vested to such employee after a year for every completed month of work. Usually this is one twelfth of 20 days – for the first month of employment, two twelfths for the second etc. In other words, in the first year of employment, an employee acquires right to the following parts of the leave as they complete each next month of their work.

When calculating the length of the leave, it does not matter at which employer in a row the full month of employment has passed. Possible interruptions in the employment are not taken into account either. This type of legal solution is to help young employees and make their professional start easier.

It should be clearly emphasised that such fractional leave is vested to an employee in their first year of employment, but not over the first year of employment. Such distinction means that this detailed mode of granting a leave of absence and the entitlement to fractional leave, refers only to the calendar year, when an employee takes a job for the first time. In the next calendar year, from 1 January, an employee is already entitled to a full leave of absence on a general basis. Here is an example as follows: if a young employee, Jan Kowalski, signed his contract of employment in 2010 for the first time in his life, then he would be entitled to one twelfth out of 20 day annual leave of absence for every month of work till 31 December 2010. If health and safety at work started his job from 1 July 2010, then over the first half of year he would be granted six twelfths of the annual leave – that is 10 days in this case. From 1 January 2011, in the following calendar year, Jan Kowalski would be entitled to full leave on a general basis – that is 20 days.

The incomplete days, or even hours of leave are the result of dividing the full annual leave into fractions. In the above example of a young Jan Kowalski, who just started his professional career, the first fraction of his leave amounts to one twelfth out of 20 days, which he is entitled to, for his work annually, which gives an irregular number of 1,66 for every month of work. After 2 months that would be another irregular number – 3,33 days for the first 2 months of work. How to understand and deal with these fractions? Usually in the similar situations the Labour Code requires rounding the fractions up to full days. However, in this case the regulation does not provide this rule. Instead of such generalisation, there is an article 1542 § 4 LC, which provides that granting an employee a few hours of a leave of absence, which equals only a part of a 24-hours working time (e.g. 3 hours out of 8), is acceptable only in case when a part of the leave left to be taken, is shorten than the full daily working time, that means, when an employee has already taken full days of his leave and there is only a fraction of leave left. In this situation, Jan Kowalski will take whole days of leave until there is a fraction of leave left. Then an employer can grant him a part of the day of leave – that is a few hours, less than 8.

Moreover, bear in mind that the term a month of employment, after which an employee is entitled to fractional leave, means a period of employment relation, but not the period the work was really performed. This refers to a situation of an employee‘s justified absenteeism, e.g. regarding medical leave due to employee’s illness. Illness or other justified absenteeism does not restrict their right to a leave of absence.

The same as in case of leaves granted on the general bases, an employer is obliged to grant an employee a leave in a calendar year, when an employee was entitled to it (article 161 LC). In special situations, a leave vested in a certain year shall be granted until the end of March of the following year (article 168 LC). Fractional leaves should also be granted according to the schedule of leaves in a certain employing establishment. This is a relevant element of a good organization at work. It is set up by an employer, as far as the employees’ applications and a necessity of normal course of work are concerned (article 163 § 1 LC). In case of any doubts and conflicts – the employer’s makes the decision.

Sławomir Krenczyk

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