The City Municipality of Velenje (MO Velenje) ordered the complainant to use three days of annual leave during the May Day holiday during the first wave of the Covid-19 epidemic, and before and after this period, based on the same decision of the employer, he was waiting for work at home because the employer could not provide him with work. As part of the consideration of the complaint, the Ombudsman concluded that the MO Velenje had violated the rights of the complainant from the employment relationship by illegally ordering him to use collective annual leave from 28 to 30 April 2020, and by the fact that even after receiving the decision of the Commission of the Government of the Republic of Slovenia for Complaints Arising from the Employment Relationship, it did not eliminate the illegality. The Ombudsman proposed to the MO Velenje to correct the injustice and enable the complainant to use these three days of leave. The MO Velenje did not follow the Ombudsman's proposal, so the Ombudsman closed the complaint as well-founded.

* * *

In his complaint to the Human Rights Ombudsman of the Republic of Slovenia (Ombudsman), the complainant stated that his employer, the City Municipality of Velenje (MO Velenje), had illegally ordered him to use three days of annual leave from 28 to 30 April 2020. This was confirmed by the Commission of the Government of the Republic of Slovenia for Complaints Arising from the Employment Relationship (Commission), which upheld the complainant's complaint and found that the employer's order regarding the use of collective annual leave was illegal. Since the employer did not want to implement the Commission's decision, the complainant turned to the Ombudsman.

The Ombudsman asked the MO Velenje for clarification. It stated that the collective leave during the period of the May Day holidays of the first wave of the Covid-19 epidemic was indeed not planned as usual, but in their opinion, it nevertheless followed the purpose of using annual leave, i.e. rest, gaining distance from work obligations, relaxation, and entertainment. When planning the collective annual leave in the month of April 2020, it was primarily based on the circumstances at the time – the emergency situation caused by the Covid-19 epidemic, which had brought a lot of stress and additional burdens to the employees. The MO Velenje always believed that their behaviour was justified, so they insisted on their decision, while the complainant had filed a complaint with the Commission and appeals to the employer due to disagreement. Therefore, according to the MO Velenje, the reference period and also the transfer period in which it would be possible to use these three days of annual leave have expired; after the end of both periods, as an employer, they no longer have the legal basis to allow the complainant to use annual leave. The letter to the Ombudsman was concluded by stating that after the expiry of the reference period and the transfer period, the complainant has the right to request appropriate compensation if he believes that it is a violation of contractual obligations during the duration of the employment relationship, but he had not addressed the claim to the employer.

The Ombudsman also obtained explanations from the Labour Inspectorate of the Republic of Slovenia (IRSD), which carried out an inspection into the case at the MO Velenje. The IRSD found violations of labour legislation regarding the implementation of Article 163 of the Labour Relations Act (ZDR-1), namely when the complainant was at home at the time of the valid decision on waiting for work from March 2020, which stipulated that from 8.4.2020 until cancellation due to the fact that the employer could not provide work during the Covid-19 epidemic, the use of three days of collective leave for 2020 from 28 to 30 April 2020 was ordered. Collective leave was also ordered for all other workers. After the expiration of this period, the complainant was placed on hold again based on the same decision, while the possibility for rest and recreation of the worker and family obligations was not taken into account.

The Ombudsman found that the MO Velenje had violated the complainant's employment rights by illegally ordering him to use collective annual leave from 28 to 30 April 2020, and by failing to remedy the illegality even after receiving the Commission's decision. The Ombudsman could not follow the explanations of the MO Velenje, which stated that it had always considered that its conduct was justified and therefore, even after the decision of the Commission and the inspection carried out by the IRSD, it still insisted on its decision, because due to the findings of other competent authorities there was no basis for such conduct.

Case law has taken the position that the carryover period for leave, as regulated in the ZDR-1[1], i.e. six or, in certain cases, twelve months, is not appropriate in view of the provisions of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 on certain aspects of the organisation of working time and the case law of the Court of Justice of the European Union (SEU), since the period for transferring unused annual leave must be longer than the period for using annual leave. If the employee did not actually have the opportunity to use annual leave even before the end of the transfer period, he can still use it. In this case, the right to use annual leave is not unlimited, as the SEU also, except for exceptions, limited it to a period of 15 months for transfer [2], and if the conditions are met, the employee has the right to appropriate compensation. However, this does not mean that an employee whose employment has not (yet) ended, and whose employer has not properly allowed him to use annual leave during the duration of his employment, has no other rights. In order to ensure adequate judicial protection or the effective enforcement of his rights, he has the right to request the use of annual leave or (if the conditions are met) as well as the right to appropriate compensation for breach of contractual obligations during the duration of the employment relationship. A different interpretation would nullify this right of the worker.

Based on the above, the Ombudsman took the position that the MO Velenje could still remedy the violation of the worker's rights in such a way as to enable him to use three days of annual leave from 2020, since the complainant has not actually had the opportunity to use these days so far. The Ombudsman suggested to the complainant that he address a request for payment of compensation to the MO Velenje, and that the MO Velenje should correct the injustice it had done to the complainant.

The MO Velenje rejected the Ombudsman's proposal, but did not provide any new convincing reasons for such behaviour. The complaint was justified. The Ombudsman therefore remains of the opinion that the MO Velenje had violated the complainant's rights from the employment relationship. The Ombudsman concluded the consideration of the complaint by again proposing to the complainant that he address a request for payment of compensation to the MO Velenje, and that the MO Velenje correct the injustice it has done to the complainant .10.2-4/2023

[1] Note: the matter was discussed before the adoption of the amendment to the ZDR-1D.

[2] Cf. judgment of the Supreme Court of the Republic of Slovenia no. VIII Ips 42/2019 of 14.01.2020.