Case 1.
Mr Jan, an employee of Mr Andrzej, wishes to take a two-week holiday during the peak season. Can the owner of the paving company refuse this request?
Yes, in certain cases the employer may refuse to grant leave, as under Article 164 § 2 of the Labour Code, postponing the date of leave is permissible on account of the employer’s specific needs if the employee’s absence could seriously disrupt the course of work. The peak season for paving
work will undoubtedly constitute such an exceptional circumstance (the company’s legitimate interest). This involves the necessity for all employees of the company to work, or the inability to provide a replacement for the person requesting leave.
However, the employer must state the reasons for refusing (or postponing) the leave. They are also obliged to reimburse the employee for any costs incurred that are directly related to the postponement of the leave.
Case 2.
It has come to light that Mr Marek’s employee is using their annual leave to do casual work for a rival company. What should the business owner do?
To avoid such a situation, the employer should have previously entered into an agreement with the employee obliging them not to take up employment or perform a contract of a similar or identical nature for other entities (an agreement containing a non-competition clause).
Under current legislation, there is no legal provision prohibiting work for another employer during annual leave, so it is entirely up to the employee how they use their leave.
Only a non-competition agreement gives the employer the opportunity to protect their interests – by demanding that the employee compensate for the damage caused by their competitive activities.
Case 3.
Given an excess of orders, can Mr Zygmunt, the owner of a construction firm, cancel his employee’s holiday and order him to report for work without fail?
Yes, the employer – in addition to being able to refuse to grant leave – may also recall an employee from leave, but under certain conditions.
Thus, an employer may recall an employee from annual leave only if his presence at the workplace is required by circumstances unforeseeable at the time the leave commenced (Section 167(1) of the Labour Code).
In our case, the circumstance of an excess of orders would have to arise only after the employee has started their leave. If the employer was aware of this beforehand, recalling the employee from leave will not be possible.
It should also be borne in mind that the employer’s exercise of the right to recall an employee from leave is treated as a work order, and therefore failure to comply with it may be regarded as a serious breach of employment duties, the consequence of which is termination of the employment contract without notice.
In this case too, the employer is obliged to reimburse the employee for any costs incurred that are directly related to the recall from leave.
