In this article, we will take a closer look at the recent decision of the Supreme Court, Case No. 21 Cdo 1209/2024 of 6 November 2024 (the “Decision”), in which the validity of immediate termination of employment due to incorrectly determined leave was established.

In the given Decision, the case concerned an employee who worked for the defendant as an ambulance driver. The employee had untaken leave carried over from the previous calendar year and, since the defendant had failed to determine his leave even by 30 June of the following calendar year in accordance with Section 218(4) of the Labour Code, the employee exercised his right to determine his own leave.

On 11 August 2020, the employee sent a text message to his supervisor requesting leave from 31 August 2020 to 13 September 2020. He subsequently left a written request for leave at the employer’s control room on 28 August 2020 and took leave on 31 August 2020.

The employer did not accept the employee’s request for leave and on 7 September 2020 served the employee with an immediate termination of employment for violation of the obligations arising from the legal provisions relating to the work he performed in a particularly serious manner. According to the employer, the reason for this immediate termination was the employee’s unexcused absence from the workplace from 31 August 2020 to 7 September 2020, and the employee did not respond to the employer’s calls and did not return to work.

The employee defended himself with an action, whereby he sought a declaration that the immediate termination of employment was invalid. He claimed that on 11 September 2020 he had sent his employer a letter of opposition to the immediate termination of his employment, in which he denied that he had been asked to return to work and considered the reasons for the immediate termination of his employment to be “mere excuses”. He also pointed out that he was not allowed to take leave for the 2020 calendar year and that his employer was reluctant to allow him to take the leave from the year 2019.

The Court of First Instance found in favour of the employer in concluding that the employee had not complied with the requirement of giving at least 14 days’ notice of taking leave, as required by the Labour Code. The Court of Appeal, however, ruled to the contrary, stating that the employee had made an effort to inform his supervisor and that the 14-day period is a procedural time limit, failure to comply with which cannot result in termination of an employee’s right to determine his/her own leave. The Court of Appeal thus considered the immediate termination of the employment relationship to be invalid because, in its view, it was not an unexcused absence.

The Supreme Court subsequently confirmed that the determination of leave is a legal act, which must be properly served on the other party, and that the statutory period of 14 days is not a procedural but a substantive condition for the validity of an employee’s notice to take leave. The reason for this time advance is to allow the other party to prepare for the absence of the employee. Failure to do so will result in the notification being invalid and the leave not being properly determined.

The Supreme Court also held that the notice of leave taken by text message did not comply with the law on service of documents in force at the time, because the text message did not meet the requirements for service of a document addressed to the employer via an electronic communications network or service.

The Supreme Court’s decision thus implies that the 14-day period for giving notice of taking leave is a substantive condition. Therefore, if the employee fails to comply with this deadline and arbitrarily starts to take leave, this will be an unexcused absence, for which the employer may immediately terminate the employee’s employment.

In light of this Decision, we therefore recommend that employers, for their part, ensure that employees’ leave dates are determined in a timely manner, and that they ensure that employees have clear instructions on how to announce taking leave from their part. Employees are advised to ensure that they comply with the 14-day notice period required by the Labour Code (unless a different notice period is agreed with the employer) and announce it in writing.