In practice, the question often arises whether an employee is entitled to take leave during the probationary period.
During the probationary period, which can generally last from 1 to 3 months, the employer checks whether the employee is suitable for the job and at the same time the employee demonstrates his/her abilities. If, during the probationary period, the employer is dissatisfied with the employee's performance, he may terminate the employment for any reason or no reason, except in cases defined by law.
As this is a period of employment with certain specific features and the Labour Code does not exclusively regulate the taking of leave during the probationary period, it may not be clear whether an employee is entitled to take leave during such a short period of employment.
The Labour Code grants the right to leave to every employee, so the entitlement arises even during the probationary period. However, the taking of leave is subject to the employer's consent.
How much leave is an employee entitled to during the probationary period?
The amount of leave will depend on the number of days worked. For every 21 days worked, the employee is entitled to 1/12 of the annual amount of leave. The basic annual leave entitlement is 4 weeks, so if the employee has worked at least 21 days he is entitled to 1.5 days leave (4 x 5 = 20, 1/12 of 20 = 1.66).
Employees who have not fulfilled the conditions for taking leave, i.e. who have not worked at least 21 days, may also take leave. In this case, the employee shall be allowed to take leave if it can reasonably be assumed that these conditions will be met during the calendar year in which the leave is taken or until the end of the employment relationship.
What if the employee has not worked 21 days but has taken leave?
If the prerequisite for the employee's entitlement to leave has not been met, the employee will be paid holiday pay deducted from his or her wages in accordance with section 131(2)(g) of the Labour Code. The employer may claim wage compensation in this way for leave to which the employee has lost or has not been entitled.
If the employee is also entitled to take leave during the probationary period, the question arises whether the employer has to pay the untaken leave in the event of termination of the employment relationship during that time period. The employee has the same right to payment of untaken leave on termination of employment during the probationary period, as there is no scope for making up the leave.
Wage replacement for an employee who has not worked for at least 21 days will be calculated on the employee's likely earnings, i.e. the wages that the employee earned at the beginning of the determining period or would have been likely to earn, rather than on average hourly earnings. The probable earnings will be calculated as the ratio of the gross wage stated in the contract of employment to the number of hours worked, or the number of hours worked by the employee in a given month.
If the employee has worked more than 21 days, the average hourly earnings shall be calculated as the ratio of the gross wage to the number of hours worked in the reference period, which shall be the calendar quarter preceding the quarter in which the average earnings are determined. If the employment relationship arises during the reference period and lasts more than 21 days, the average hourly earnings will be calculated from the beginning of the employment relationship until the end of that calendar quarter.
Finally, it is important to emphasise that, although an employee is entitled to holiday entitlement irrespective of the number of days worked, it is essential that the employee informs the employer of the need to take leave as soon as possible and that they mutually try to agree on the taking of leave. One way to avoid taking leave immediately after commencement is to give notice before the actual commencement of work and, if necessary, to postpone the actual commencement of work. If you have any further questions on this topic please do not hesitate to contact us.