An employee failed to attend work for five working days. Although they had requested annual leave in advance, their line manager had expressly refused to approve it and had asked them to continue coming to work because an important project needed to be completed and the related work handed over. Nevertheless, the employee argued that they were entitled to take outstanding annual leave carried over from the previous year and that the employer was obliged to approve their request. The employee failed to return to work despite repeated requests and warnings that the employer had no record of approved annual leave or any other authorised absence. Can such an absence be regarded as a serious breach of work discipline? If so, what should the employer bear in mind when terminating the employment with immediate effect?
Absence from work due to unapproved annual leave may constitute a serious breach of work discipline and may justify immediate termination of employment.
However, as with any alleged serious breach of work discipline, the specific circumstances of each case must be assessed individually and it must be considered whether the infringement of the employer’s legally protected interests was indeed so severe as to justify immediate termination. Although many employers believe that unauthorised absence can always be regarded as a serious breach of work discipline, particularly where this is expressly stated in their work rules, this is not the case. Classifying certain conduct as a serious breach of work discipline in work rules or other internal policies is no guarantee that a court will regard it as such.
Let us look at your particular situation. The employee was absent from work for five working days (an entire working week), despite repeated requests from their line manager to return to work, complete the work in progress and hand it over. The employee did not report incapacity for work and justified their absence by claiming that they were taking outstanding annual leave carried over from the previous year, which you were allegedly obliged to approve. You needed the employee to attend work, asked them to do so, and they refused. (Other circumstances may also be relevant. For example, the employee may hold more than one job and may have been working for another employer during the period of unapproved leave.)
In our view, the breach of work discipline you have described could be sufficiently serious to justify immediate termination of employment. This would be particularly likely if the project in progress was important to your business, no other employee could adequately cover the absent employee’s responsibilities, and the employee must have been aware that their absence would make it difficult or even impossible for you to complete the project on time.
The employee’s argument that they were taking outstanding annual leave from the previous year, which would otherwise have been forfeited, does not reduce the seriousness of the breach of work discipline. An employer is not obliged to approve an employee’s request to take annual leave, regardless of whether it is leave carried over from the previous year or current-year leave.
It is essential to ensure that you can adequately document or otherwise substantiate all the facts. You should retain records of the employee’s annual leave request and its refusal, your repeated requests for the employee to return to work, the status of the project and the work outstanding, communications between you and the employee, the impact of the absence on the project’s completion, and any other consequences of the absence. Should the employee challenge the immediate termination in court, you will need to be able to not only justify your decision but also to support it with evidence. This may include witness testimonies. An important witness would undoubtedly be the line manager who refused the leave request and who supervised the project completion. It would be advisable for the line manager to produce a written internal report documenting the sequence of events while their recollection is still fresh. If court proceedings take place, the manager may not be called to give witness testimony until several years later. By then, their recollection may have changed or become less reliable, potentially to your disadvantage.
If you proceed with immediate termination of employment, it is essential to describe the grounds for the termination precisely in the written notice delivered to the employee in exactly the same manner as a notice of termination. It is not sufficient for the notice to merely state that the employee committed a serious breach of work discipline. You should specify the exact dates of absence and the amount of working time missed; describe when the employee requested annual leave and when the request was refused; identify the dates of your repeated requests for the employee to attend work; and explain the consequences of the unauthorised absence for you as the employer and why you consider the breach to be serious.
Under the Slovak Labour Code, the grounds for immediate termination of employment must be described in such a way that they cannot be confused with other grounds. The employer cannot subsequently change or extend those grounds. It is therefore important to devote sufficient time to preparing the notice of immediate termination of employment, describing the relevant facts clearly and specifically, and, where appropriate, attaching documents that substantiate the decision.
If a trade union operates at your workplace, you must consult the question of the employee’s unauthorised absence with the trade union, since Section 144(6) of the Slovak Labour Code provides that: “Whether an absence from work is unauthorised shall be determined by the employer after consultation with the employees’ representatives.” You must also consult the trade union on the immediate termination under Section 74 of the Labour Code, so the question of unauthorised absence may be combined with the consultation on the immediate termination.
Finally, an important warning concerning the statutory time limits. Under Section 68(2) of the Labour Code, an employer may terminate employment with immediate effect within two months of becoming aware of the grounds for termination, and no later than one year after the date on which those grounds arose. It is therefore advisable to act promptly and not leave the decision until the last minute. To be on the safe side, we would recommend calculating the two-month period from the date of the absence on which you first informed the employee that their annual leave had not been approved and that they were required to return to work.
To summarise, taking annual leave without the employer’s approval may constitute grounds for immediate termination of employment. This is particularly true where the absence lasts several days, the employee clearly knows that the leave has not been approved, or the employee disregards the employer’s requests to return to work, and the absence adversely affects the operation of the workplace or the employer’s ability to fulfil its obligations. However, all the circumstances of the specific case must always be considered, as a court may assess the situation quite differently where an employee missed one or two shifts owing to a misunderstanding, where the employee was absent at a time when not much was happening at work and their presence was not essential, or where the employer barely noticed the absence and only later cleverly used it as grounds for terminating the employment.
