Having been working for less than 12 months, can I take annual leave?

Question:

Hi, I am a salesman for a company in Binh Duong. I have signed a definite-term labor contract with the company with the term stated from January 1, 2020 to December 31, 2020. At the end of August 2020, due to personal reasons, I asked the company to allow me to take 05 days off and counted them as my annual leave. The company, however,  did not agree to give me a 05-day annual leave for the reason that I have not worked for fully 12 months, so I would not have any annual leave day. I want to know if the company handled my request right or not.

Answer:

PL & Partners would like to thank you for trusting and sending your question to us. For your question, we would like to reply as follows:

Regulations on annual leave for employees are prescribed in Article 113 of the Labor Code 2019 as follows:

Article 113. Annual leave

1. Any employee who has been working for an employer for 12 months is entitled to annual leave, which is stipulated in his/her employment contract as follows:

a) 12 working days for employees who work in normal conditions;

b) 14 working days for employees that are minors, the disabled, employees working in heavy, hazardous, and dangerous jobs;

c) 16 working days for employees working in extremely heavy, hazardous, and dangerous jobs.

2. An employee who has been working for an employer for less than 12 months shall have a number of annual leave proportional to the number of working months.

As per the above regulation, an employee who has been working for an employer for fully 12 months is entitled to annual leave with 12 days off in normal working conditions, and the annual leave of an employee shall increase by 01 day for every 05 years of employment.

In terms of your case, though you have been working at the company for less than 12 months, you are still entitled to a number of leave days proportional to the number of months you have worked.

In relation to the calculation of annual leave days in case of working less than 12 months, Article 66 of Decree 145/2020/ND-CP stipulates:

Annual leave = the number of annual leave per year + the number of additional leave days subject to seniority (if any) / 12 months x actual number of working months in the year.

Periods included in working time as the basis for calculation of annual leave: (Legal basic: Article 65 Decree 145/2020/ND-CP)

  • Vocational training and apprenticeship period if the employee works for the employer later;
  • Probation period if the employee keeps working for the employer after the end of the probation period;
  • Personal leave (relating to marriage, death);
  • Unpaid leave if accepted by the employer but not exceeding 01 month per year in total;
  • Leave taken due to occupational accidents or diseases but not exceeding 6 months in total;
  • Sick leave but not exceeding 02 months per year in total;
  • Maternal leave;
  • Period of performing duties of the employees’ representative organization at grassroots level that is included in working time;
  • Work suspension and leave through no fault of the employee;
  • Suspension period after which the employee is exonerated or exempt from disciplinary actions.

NOTE: In case an employee has not worked for a full month, if his/her total number of working days and paid leave (public/New Year holidays, annual leave, personal leave) account for 50% or more of the agreed normal working days in a month, that month shall be regarded as a full working month for calculating the annual leave.

In terms of your case, you have worked at the company for 8 months. Thus, the fact that the company does not handle your annual leave just because you have not worked for full 12 months is not in compliance with the law. Your annual leave shall be calculated as follows: 12 annual leave days under normal working conditions / 12 x 8 months worked = 8 days.

Your question on whether to take annual leave if you work for less than 12 months has been delivered to you as above. Should you need any further explanation, feel free to send us another question. Thank you!

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