Woman's 12-year claim for separation without annual leave 140,000, court: Expired limitation period for the previous 10 years

author:Sankei face to face

Will annual leave be "automatically voided" if it is not suspended in the current year?

Can I claim financial compensation if I have not taken annual leave?

About annual leave,

There are also things you need to know about these ↓↓

"Only one or two days of annual leave in the first year of employment"?

This is an illegal "overlord clause".

According to the Regulations on Paid Annual Leave for Employees, if an employee has worked for a cumulative period of 1 year but less than 10 years, he or she shall take 5 days of annual leave; 10 days of annual leave for those who have completed 10 years but less than 20 years; Those who have completed 20 years of annual leave are 15 days.

Experts said: "Many units understand '1 year of continuous work' as '1 year of employment in the unit', which is illegal. "1 year of continuous service" does not mean 1 year in the employer, but also includes the former employer.

If you move to the second employer after working for the first employer for two years, you can enjoy at least 5 days of annual leave from the first day of employment, without waiting until after one year of employment.

So, how do you calculate cumulative years of service?

Some units stipulate that the definition of service years is "subject to the cumulative number of years of social insurance contributions". The expert pointed out that "this regulation is illegal, and social security contribution records are not the only evidence." "The labor contract, salary flow, file records, etc. of the former employer can prove the employee's work experience, as long as any of them can be provided, the unit should recognize it."

Woman's 12-year claim for separation without annual leave 140,000, court: Expired limitation period for the previous 10 years

Annual leave is not taken and "cleared" at the end of the year?

According to the relevant provisions of the state, annual leave is generally not arranged across years, but if it is really necessary to arrange annual leave for employees across years due to production and work characteristics, the unit may arrange it across one year, but the consent of the employee himself shall be obtained.

Woman's 12-year claim for separation without annual leave 140,000, court: Expired limitation period for the previous 10 years

A senior labor arbitrator said that in actual cases of judicial arbitration, in most cases, as long as the employee has not completed the statutory annual leave, the court will require the employer to give compensatory leave or compensation.

"There are two situations of whether the annual leave is 'cleared for zero' on the other hand, because some units will give employees an extra few days of annual leave on the basis of the statutory annual leave." The labor arbitrator introduced that, in general, it is not reasonable to "clear the statutory annual leave" for the New Year, but there is no problem in "zeroing" the extra annual leave given by the employer.

Woman's 12-year claim for separation without annual leave 140,000, court: Expired limitation period for the previous 10 years

What should I do if I should take a break?

According to the provisions of the Measures for the Administration of Remuneration, "if the employee has not taken annual leave in the current year, the company shall pay the salary remuneration for the untaken annual leave according to 300% of the employee's daily salary income according to the number of days of untaken annual leave, and pay it together with the year-end bonus".

It should be noted that if the employer has not arranged leave or paid the wages for the untaken annual leave, the employee should apply for arbitration in a timely manner to claim his rights, otherwise he may face the risk of exceeding the limitation period for arbitration.

Recently, when a woman in Hunan had not taken annual leave for 12 years and claimed 140,000 yuan, because the salary of the untaken annual leave in the previous 10 years had exceeded the limitation period for arbitration, the court ruled that it was not supported, and the company only needed to pay 10,000 yuan:

On September 18, according to the Hunan High Court, Xiao Xie (pseudonym) joined a real estate company in 2009, but was forced to leave due to unexplained transfer and other reasons. Xiao Xie believes that she has not enjoyed annual leave for more than ten years since joining the company, and the company should pay compensation for untaken annual leave.

In 2021, Xiao Xie applied to the company for labor arbitration, but was dissatisfied with the result and sued the court, demanding that the real estate company pay 146,000 yuan in his untaken annual leave salary for a total of 12 years from 2009 to 2021.

The court held that the limitation period for arbitration was one year, so the untaken annual leave pay from 2009 to 2019 had exceeded the limitation period and could not support it; Regarding the untaken annual leave pay for 2020, the salary stub and payroll statement show that it has been paid and is no longer supported.

If the real estate company has not proved that Xiao Xie has enjoyed annual leave or paid untaken annual leave wages in 2021, he should pay three times the salary during the untaken period according to the regulations, with a total of 10,182.44 yuan

"Paid annual leave" is a legal right granted to employees by the state. For enterprises with frequent tricks, the relevant administrative departments and trade union organizations at all levels shall resolutely exercise control or defend the rights of employees. Workers should also actively defend their rights, so that labor law and related legal systems become a sword to protect their legitimate rights and interests. A multi-pronged approach allows enterprises that violate laws and regulations to bear high risks, so that they dare not take risks.

Source: CCTV Comprehensive Workers' Daily, China News Network, CCTV Today's Statement, People's Network, "Hunan High Court" Weibo