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Left over leaves after resigning

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Hi,

 

Am I entitled to get paid for my left over leaves after resignation if I leave at 31st Dec? I know that you get paid for left over leaves if you resign in the middle of the year but I'm not sure about what happens if the year is also ended. I also know that the leaves carry over to March of next year but obviously I won't be working next year so I'm confused with that.

 

The reason I'm asking is because I wanted to go on vacation in December but now with the increase in COVID cases and uncertainty around lockdowns if I leave the country. I don't want to take any risk and it will be quite boring/bad if I take the leaves and stay at home. I know that my company will force me to take leaves but in these circumstances I think it will just be a waste.

 

Thanks.

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AFAIK you have to take accured vacation days. Only if this is not possible (e.g. workload too high) will the employer be obligated to pay out days you haven't taken. 

 

https://www.kanzlei-hasselbach.de/2015/resturlaub-bei-kuendigung/07/#Nehmen

Hieraus ergibt sich, dass Urlaub, der wegen der Beendigung des Arbeitsverhältnisses ganz oder teilweise nicht mehr gewährt werden kann, abzugelten ist. Sofern dies möglich ist, müssen die Urlaubstage also grundsätzlich vom Arbeitnehmer noch genommen werden. 

Deepl translation

This means that leave which can no longer be granted in whole or in part due to the termination of the employment relationship must be compensated. As far as this is possible, the employee must therefore still take the leave in principle.

 

The fact that you cannot go on holiday or think it is boring is irrelevant from a legal point of view. 

 

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Okay, does that mean I can take some holidays like say 1 day every week or so but not the whole, will that make a difference? Asking because for carry over leaves if I remember correctly the wording is some thing like either due to personal or professional reasons the employee haven't taken the leaves it can carry over to March.

 

I know this much that my company has paid out when the employee hasn't taken the leaves but all the examples I know of they left in the middle of year not until the end like me. That's why I'm confused. I can't ask the employer because they will certainly force me to take the leaves no matter what like they tried to other employees. It's just an accident that couple of employees flights were cancelled that they didn't go on vacation and actually received the payout.

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According to https://www.gloistein-partner.de/urlaub-in-der-kuendigungsfrist-worauf-arbeitgeber-und-arbeitnehmer-achten-muessen you can refuse or at least protest a one-sided vacation order from your employer.  However, in this case it was you who asked for the vacation first so I think you'll have to take it.

 

Even if you did avoid taking it, your employer could refuse to pay for it based on that you could have taken it in December and chose not to.  At https://www.afa-anwalt.de/muss-ich-meinen-resturlaub-bis-31-maerz-nehmen/#:~:text=Nach%20dem%20Bundesurlaubsgesetz%20muss%20Urlaub,Gr%C3%BCnden%20nicht%20genommen%20werden%20kann. it states that your vacation can be extended until end of March for professional or personal reasons where professional reasons include your employer telling you that you can't go because they need you and personal include being sick.  Not being able to travel would not stop you from taking vacation as you can still relax at home.

  

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The falling leaves left after I leave.. who will pick them up after I'm gone?

 

 

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On 09/11/2020, 12:31:22, zhaider said:

Hi,

 

Am I entitled to get paid for my left over leaves after resignation if I leave at 31st Dec? I know that you get paid for left over leaves if you resign in the middle of the year but I'm not sure about what happens if the year is also ended. I also know that the leaves carry over to March of next year but obviously I won't be working next year so I'm confused with that.

 

The reason I'm asking is because I wanted to go on vacation in December but now with the increase in COVID cases and uncertainty around lockdowns if I leave the country. I don't want to take any risk and it will be quite boring/bad if I take the leaves and stay at home. I know that my company will force me to take leaves but in these circumstances I think it will just be a waste.

 

Thanks.

 

Your mistake 'leaves' is charming, giving the time of year. it's fun to imagine employers giving their staff bags of literal leaves. Maybe at the coca farm in Bolivia. We would however (depending on variety of English) say paid leave/days/time off, vacation/holiday (days), etc. etc. 

 

And no, you are not entitled to a choice of pay out of unused days. For obvious reasons, as many workaholics would take money rather than holidays. As mentioned above, there are certain conditions that could allow it, but IME employers will usually try to avoid these. Perhaps some places are more lenient than others on that. At an old job, I had a colleague (a chief network admin) who was fighting with the company brass (over a year later) for backpay from 20-odd unused vacation days which IIRC were already at the end of their use-by date at the time. In his case, he really was called in for emergency reasons, all-nighters in the IT pit, etc. Our direct/local boss said yes of course, no problem, but the top company execs and beancounters dragged their feet. He was in ver.di and luckily had legal support and eventually got it, IIRC.

 

What is stated in your job contract? I know my current contract explicitly says that they do not pay out unused holidays unless there are exceptional circumstances, with proof and permission, etc.

 

As mentioned already, it seems that you can still take holidays. Whatever you do with the time is up to you, with plenty to do locally even if you can't necessarily sit on a beach in Spain.

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I agree, sometimes typos are so fun (in a good way)  I don't want to change them! :)

 

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Your contract gives you a basis for payment  / salary as well detailing your time off allowances.

Any overtime / Mehrarbeit and any vacation time owed to you when you actually leave

employment has to be paid to you.

 

The counterbalance to my statement is that there is nothing stopping you taking your vacation

time starting tomorrow.

 

Sorry but "It's not what I want"  / "that's boring sitting at home" is not a valid argument.

 

With 10 days vacation left over in 2020, You can of course simply leave end of business on the 16th Dec

(assuming a 5 day working week and 25th Dec is a public holiday).

24/31 Dec rules are in your individual contract...

 

If the boss won't let you take vacation - and you have that in writing, then that's different.

Then back to the fact that they now owe you something and you need to approach them

to get this confirmed (again, in writing) so you won't be sueing them next summer for broken promises

made this December.

 

Good luck!

 

 

 

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Normally your payslips should indicate how many vacation days you have left so it shouldn't be something you'd have to argue about.  If you had 10 days left and couldn't take them, they'd have to be paid out when you quit.  If you have 10 days left and you could have taken them, employer can say sorry but the law indicates that they are out the window on Dec. 31 if you could have taken them and chose not to.  Now, maybe they wont do that, who knows.

 

I've quit something like 3 jobs since I've been in Germany and never had any problem getting left over vacation paid out.  One of those jobs my last day was March 31 and I still had left over vacation from the previous year which they paid out.  However, they did not ask me to take it in March since they wanted me to use the time to train someone to take over for me and they could not say I should have taken it in December since we were very busy.  Besides, that particular employer let you carry vacation over indefinitely because sometimes they were too busy to let people go so if they would have refused to pay me out, other employees seeing that would have put in for all their old vacation asap.

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Thanks a lot folks for sharing your feedback on the matter. I think I have a good idea now. The only concern I think I still have is my notice period ends on year end so this was a bit confusing for me.

As for what my contract says, here it is: "Any existing vacation entitlements and any claims for compensation shall be credited in the case of an irrevocable exemption".It's listed under the notice period and employment termination section.

 

Seems like I'm entitled to receive the payout but who knows. I totally understand and agree that off-time has nothing to do with vacation days but in this situation I would prefer not to waste all the vacation days sitting at home. That was the only reason and hence I was looking to see what are my options.

 

 

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