Any period of vacation granted to an employee being dismissed should not be permitted to begin until the following day, to avoid claims that the employee is protected from dismissal.
The Supreme Court has clarified this issue in a case involving an employee who, in the same letter, was both dismissed and granted vacation starting on the same day.
The employee was handed the letter after finishing a night shift from 10pm to 6am.
Employees cannot be dismissed while on vacation under Article 41 of the Labour Code.
However, the Supreme Court ruled that:
- Article 167(1) of the Labour Code implies that employees should use up any unused holiday entitlement during their notice period, where permitted by the employer
- therefore there is no conflict between Article 167 (1) of the Labour Code and the employee protection under Article 41
- this means it is permissible under the Labour Code to dismiss and grant vacation at the same time
- in this case, the employee was dismissed first and then granted vacation (not the other way round)
- the two events occurred on the same calendar day but on different working days: the vacation only began when the next night shift was due to start (at 10pm that evening)
- the employee was not protected between the end of his last shift at 6 am and the start of his vacation at 10pm (which was the period in which he received the letter)
Law: Case No. II PK 116/10 (Supreme Court); Labour Code, articles 41, 167(1)