Brief facts of the case
On June 7, 2021, Mr. Li joined an e-commerce company and signed a three-year labor contract with the company. At the end of November 2023, the company issued a written leave consultation notice to Mr. Li, who had not yet taken the annual leave of the current year, requiring him to check the "yes" and "no" comment columns on the leave inquiry form; If you want to take annual leave, you need to enter the start and end dates of the leave. After receiving the notice, Li thought that as long as he did not take annual leave, he could "discount" three times the salary of unused annual leave. Therefore, I checked "No" on the leave inquiry form to express my voluntary waiver of this year's paid annual leave and signed for confirmation.
On March 31, 2024, Li resigned, and when going through the relevant procedures, he asked the company to pay the salary and remuneration for the unused annual leave because he had not taken the annual leave of the previous year, but was refused. After the dispute between the two parties failed, Li filed an arbitration application with the local labor and personnel dispute arbitration commission, requesting that the company pay him the salary and remuneration for the unused annual leave of the previous year. In the process of processing by the arbitration commission, the company submitted a leave application form signed and confirmed by Mr. Li.
Outcome of the arbitration
The arbitration commission rejected Li's request.
Case analysis
Article 2 of the Regulations on Paid Annual Leave for Employees stipulates that
Employees of government agencies, organizations, enterprises, public institutions, private non-enterprise units, individual industrial and commercial households with employees, and other units who have worked continuously for more than one year are entitled to paid annual leave.
Article 5 of the Regulations provides that
According to the specific situation of production and work, and considering the wishes of the employees, the unit shall make overall arrangements for the annual leave of employees; If the employer is unable to arrange for the employee to take annual leave due to work needs, it may not arrange for the employee to take annual leave with the consent of the employee himself. For the number of days of annual leave that should be taken by the employee, the employer shall pay the annual leave salary and remuneration according to 300% of the employee's daily wage income.
Article 10 of the Measures for the Implementation of Paid Annual Leave for Employees of Enterprises stipulates that:
If an employer arranges for an employee to take annual leave, but the employee submits in writing not to take the annual leave due to his/her own reasons, the employer may only pay the employee's salary income during the normal working period.
From the above provisions, it can be seen that if the employer does not take the initiative to arrange for the employee to take annual leave, even if the employee does not apply for leave, the employer still has the obligation to pay the salary and remuneration for the unused annual leave; If the employer has taken the initiative to arrange and the employee voluntarily gives up the leave, the employee has no right to request the employer to pay the salary and remuneration for the unused annual leave.
In this case, the e-commerce company took the initiative to arrange for Li to take annual leave through a leave inquiry form, but Li signed to voluntarily give up the annual leave. Therefore, the company only needs to pay Li's salary during his normal working period, and does not need to pay the salary remuneration for unused annual leave.