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Old 01.03.2013, 14:59
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Docked holiday because of an operation

A former colleague of mine had a knee operation recently and has just found out that her employer has docked her a week's holiday because of it. I really don't know how or whether they have the right to do this. Anyone got a quick link to employment law regarding this? She works for Uni Bern btw, so not a private company.
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Old 01.03.2013, 15:02
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Re: Docked holiday because of an operation

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A former colleague of mine had a knee operation recently and has just found out that her employer has docked her a week's holiday because of it. I really don't know how or whether they have the right to do this. Anyone got a quick link to employment law regarding this? She works for Uni Bern btw, so not a private company.
So was she off sick for a week ?
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Old 01.03.2013, 15:07
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Re: Docked holiday because of an operation

Did she provide doctor's certificates within the required time-frame, and was it for an 'injury' or 'illness' ?
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Old 01.03.2013, 15:10
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Re: Docked holiday because of an operation

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A former colleague of mine had a knee operation recently and has just found out that her employer has docked her a week's holiday because of it. I really don't know how or whether they have the right to do this. Anyone got a quick link to employment law regarding this? She works for Uni Bern btw, so not a private company.
Need a few more details to know what's going on here. Did she get a sick note excusing her from work from her doctor, and did she submit it to her employer?

Uni Bern is not some small, backstreet company. Without knowing their specific policies, it would still amaze me to discover that this sort of thing was not covered by sick leave. My suspicion is that there is some procedure that your former colleague did not follow which has caused the absence to be recorded as holiday.

At my company (large multinational), absence is first deducted from holiday and then from unpaid leave unless sick leave is booked into the system, either by me (short absences) or HR (longer absences, which also require a doctor's note).
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Old 01.03.2013, 15:10
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Re: Docked holiday because of an operation

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So was she off sick for a week ?
She was off for several weeks in fact and yes the doctor signed her off. She is now back 50%.

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Did she provide doctor's certificates within the required time-frame, and was it for an 'injury' or 'illness' ?
I believe she did, yes. It was all pre-arranged with her boss. It was an old injury from an accident some years before
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Old 01.03.2013, 15:21
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Re: Docked holiday because of an operation

Then as a general rule - without knowing all the details - they can not dock holidays for illness.

However I would have to know more in order to give an exact answer. Feel free to pm me.

Regards

international
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Old 01.03.2013, 15:54
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Re: Docked holiday because of an operation

People need to post sources... yes the employer CAN reduce holidays if an employee is sick long term. But maybe your friend was not sick so long?

Here's what I found in 1 google search:
"En cas de maladie, mon employeur peut me supprimer une partie de mes vacances
VRAI

C’est le cas, mais pas dans n’importe quelle situation. L’employeur peut réduire le droit aux vacances d’un douzième du droit par mois d’absence dès le deuxième mois complet d’absence. Cela signifie en fait que, si quelqu’un est absent durant toute l’année il a quand même un droit aux vacances de deux douzièmes du droit. Soit, si l’employé a quatre semaines de vacances annuelles, même absent toute l’année, il a quand même un droit aux vacances de 3,3 jours…"


ie. the employer can reduce the right to paid holidays by 1/12th of the holiday allowance for each month the employee is sick, starting from the second full month of sick leave. Example: if an employee is sick for 12months, the employee has a right to 2/12th of the paid annual holiday.


I didn't search more, but full legal text should be somewhere like here. (for example Art. 329b)
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Old 01.03.2013, 18:06
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Re: Docked holiday because of an operation

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A former colleague of mine had a knee operation recently and has just found out that her employer has docked her a week's holiday because of it. I really don't know how or whether they have the right to do this. Anyone got a quick link to employment law regarding this? She works for Uni Bern btw, so not a private company.
Hi Paddy,

I don't have any links for you, but there has been a section section in the HR manual on this in every company I've worked at in the last 25 years, so I assume it is legal, what I do remember about it is:
- It only applied if you were out sick long term, say three months or so
- You lost holidays at about the same rate as you would normally earn them, until your holiday balance was down to zero.

Jim
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Old 01.03.2013, 22:15
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Re: Docked holiday because of an operation

Just wondering if there might have been something in the contract stating that non urgent operations should be done during the very long Uni holidays rather than term time, eg when there is no students in and research is taking place.
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Old 01.03.2013, 22:21
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Re: Docked holiday because of an operation

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Just wondering if there might have been something in the contract stating that non urgent operations should be done during the very long Uni holidays rather than term time?
The only people at a university who get "very long holidays" are the undergraduates.

Almost everybody else at a university works a full working year like other people (apart from school teachers, of course, who do get "very long holidays" )

So it's very unlikely that there would be such a clause in the contract of a university employee.
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Old 01.03.2013, 22:58
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Re: Docked holiday because of an operation

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It was an old injury from an accident some years before
Not your original question, I know..

If it was an accident, can the value of the docked holiday be claimed from accident insurance?
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Old 02.03.2013, 08:46
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Just wondering if there might have been something in the contract stating that non urgent operations should be done during the very long Uni holidays rather than term time, eg when there is no students in and research is taking place.
DB is right. She works in the Uni Pathology labs in diagnostics and is not involved in research or teaching.
I had a message from her last night, everything was agreed and the doctors letter was all in order.
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Old 02.03.2013, 09:04
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Re: Docked holiday because of an operation

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She was off for several weeks in fact and yes the doctor signed her off. She is now back 50%.

I believe she did, yes. It was all pre-arranged with her boss. It was an old injury from an accident some years before
Most employers have insurance to pay their employee's salary when they are ill or have accidents.

I can believe that the University insurers do not want to pay for an injury sustained when she was not employed by them. Would this be the case here?
I assume then she needs to claim from the insurance which covered the original injury.
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Old 02.03.2013, 09:22
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Re: Docked holiday because of an operation

There might also be a gap between the allowance for paid sick leave, and the point at which insurance kicks in, and the employer has used annual leave to cover the gap so that the employee is not being left unpaid...
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Old 02.03.2013, 09:44
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Re: Docked holiday because of an operation

Has she tried asking HR why this has happened?
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Old 04.03.2013, 09:24
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Re: Docked holiday because of an operation

I got a few more details from her. During 2012, she was signed off sick for 69.5 days in total, though not continuous (weekends included). They therefore calculated that as as her having effectively worked 80% (give or take a few decimals and based on 360 days in the year ). Consequently, they reduced her 2013 vacation by 20%, so she has lost a week's vacation.
As I see it, this completely against the federal law as stated in the posts above. At most, she should only lose 1/12 of her vaction, based on ~2 months' absence.
I have suggested she go straight to HR with a copy of the federal law in her hand and see what they say.
I'll keep you posted.
Edit: sorry, as I mentioned above it was agreed with her boss and she had the requisite letter from her doctor.
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Old 04.03.2013, 11:12
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Re: Docked holiday because of an operation

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I got a few more details from her. During 2012, she was signed off sick for 69.5 days in total,
---
At most, she should only lose 1/12 of her vaction, based on ~2 months' absence.
Or not even 1/12, but 09/31 (or 30 or 28 if February) *1/12 of her vacation
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Old 07.03.2013, 13:31
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Re: Docked holiday because of an operation

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I got a few more details from her. During 2012, she was signed off sick for 69.5 days in total, though not continuous (weekends included). They therefore calculated that as as her having effectively worked 80% (give or take a few decimals and based on 360 days in the year ). Consequently, they reduced her 2013 vacation by 20%, so she has lost a week's vacation.
As I see it, this completely against the federal law as stated in the posts above. At most, she should only lose 1/12 of her vaction, based on ~2 months' absence.
I have suggested she go straight to HR with a copy of the federal law in her hand and see what they say.
I'll keep you posted.
Edit: sorry, as I mentioned above it was agreed with her boss and she had the requisite letter from her doctor.
Just one thing to try to explain the company's 20%. A work year is not 365 days! Legal holidays =min 4 weeks =28 days so a full year = 365 minus 28 = 337.
If 337 days =100% then 69.5 days = 100/337 * 69.5 = 20.6% that's how I assume the 20% was calculated.

69.5 calendar days is a little over 2 months' absence.
The law (art 329b) says
"Lorsqu’au cours d’une année de service, le travailleur est, par sa propre faute, empêché de travailler pendant plus d’un mois au total, l’employeur peut réduire la durée de ses vacances d’un douzième par mois complet d’absence"
= when an employee doesn't work because of his/her own fault more than 1 month total (doesn't have to be consecutive), the employer can reduce holidays by 1/12th for every additional full month of absence.

So they could dock her holidays by 1/12th I suppose. But not by 20%!

It doesn't seem to matter if she had a certificate or if it was an accident, the law only seems to make a difference if she was pregnant...
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