Case review
Mr. Li was an employee of Company A, and he needed to take 10 days of personal leave due to personal reasons, but the company did not approve it at first because Mr. Li took a long leave of absence and the company needed manpower to operate during this period. It was only after Li's repeated pleas that the company approved the leave.
But after Li came back from vacation, he found that the company did not pay her salary during this period, nor did she pay social security, Li thought that this was extremely unreasonable, and it was the company's legal obligation to pay social security to employees.
However, the company believed that Li's long-term personal leave had seriously affected the work process and teamwork, and not only decided to stop paying Li's salary, no longer pay social insurance for him, and even threatened to fire him directly. The two parties failed to reach an agreement through negotiation, so Li applied for labor arbitration.
Case outcome
The arbitration authority held that the salary of the employee could not be paid during the period of leave, but for social security, the company should pay it as usual, and the company could not dismiss Li on this ground, otherwise it needed to pay compensation.
Legal analysis
As far as employees are concerned, there are currently no mandatory provisions on personal leave in China's laws, and the relevant matters of personal leave belong to the scope of internal management of enterprises and autonomy between enterprises and employees. Therefore, whether an employee can ask for it and how many days it can ask depends on whether the rules and regulations legally publicized within the enterprise and the employee's labor contract have provisions on "personal leave".
If there is a provision on personal leave, the company can choose to approve or not to approve, and this approval right is the company's independent management right, because while protecting the rights of employees, it is also necessary to take into account the company's production and operation needs, and the specific need to see whether the reason for the employee's leave is extremely important and urgent. If there is no personal leave provision, then if you don't come to work without a reason, you are considered a miner.
After the approval of the company, the employer may not pay the employee's salary during the period of personal leave. Taking Beijing as an example, Article 22 of the Regulations on the Payment of Wages in Beijing (Order No. 200 of the Beijing Municipal People's ** on November 23, 2007) states that the employer may not pay the wages of an employee during his personal leave.
As far as social security is concerned, as long as the employment relationship exists, the employer shall pay social security to the employee in accordance with the law, which is clearly stipulated in the law. Therefore, no matter what kind of holiday, the labor relationship between the employee and the company will not change, no matter how long the leave is, as long as it is approved by the company, social security must be paid as usual.
Author's message
There are also some provisions that need to be reminded that according to Article 4 of the Regulations on Paid Annual Leave for Employees, if an employee takes personal leave for 20 days and the employer does not deduct the salary, the employee will no longer be entitled to paid annual leave in that year. If the annual leave of the current year has already been enjoyed, according to Article 8 of the Implementation Measures for Paid Annual Leave for Employees of Enterprises, the employee will no longer enjoy the annual leave of the next year.
According to Article 11 of the Interim Provisions on Payment of Wages, during the period when an employee is entitled to annual leave, home leave, marriage leave and bereavement leave in accordance with the law, the employer shall pay the employee's wages according to the standard stipulated in the labor contract. Therefore, employees have the right to claim wages during the above-mentioned types of leave.
At the same time, the company should also pay attention to the need to standardize the process of personal leave, such as submitting a written approval form for the record, or making a written record in a timely manner and submitting it to the employee for signature and confirmation, so as to prevent labor disputes and litigation in the futureWorkers should also pay attention to the retention of evidence, and if you encounter such disputes that are difficult to resolve, it is also recommended to consult a professional lawyer in time to better protect their legitimate rights and interests.
The author of this article is Wu Chao, Beijing Zeda Law Firm.