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-   -   Vacation Accrual (https://www.englishforum.ch/employment/175729-vacation-accrual.html)

solidsnack 28.04.2013 00:43

Vacation Accrual
 
Is accrued vacation payed out when employment is terminated in Switzerland? I am having some trouble wading through the relevant German sites -- admin.ch, for example -- and thought I'd check with the forum to see what they say. I was terminated not too long ago and my employer is not willing to pay out accrued vacation.

rob1 28.04.2013 00:58

Re: Vacation Accrual
 
It can be depending on the flexibility of your ex company.

solidsnack 28.04.2013 01:05

Re: Vacation Accrual
 
Where I said "Is accrued vacation payed out...?" I should have said "Is it required by law that vacation be payed out...?". In some countries, the US for example, this is a matter of law and is not up to the individual companies.

biff 28.04.2013 07:44

Re: Vacation Accrual
 
Quote:

Originally Posted by solidsnack (Post 1862764)
Where I said "Is accrued vacation payed out...?" I should have said "Is it required by law that vacation be payed out...?". In some countries, the US for example, this is a matter of law and is not up to the individual companies.

My understanding is that it can also be that an employeee is given days off in leui, which in your case would have been the same - just not working the last X days of your contract befor actually leaving.

Even if someone is fired, at least ethically, I would expect an employer is obligated to pay out for the holiday days that have been earned up to that date. ( however, not all employers are ethical.)

However, I do remember seeing on an EF thread a long time ago, that someone wrote , saying that if an employer has told the employee that s/he must take the accrued days by a certain date, then they can be lost if not taken by that date.

Sbrinz 28.04.2013 09:00

Re: Vacation Accrual
 
I am fairly certain that you are not entitled to taking payment instead of vacation, and I believe it is forbidden by Swiss law.

Vacation is also not automatically carried over into the following year, it is often allowed by employers up to 31st March, but this is good will, not a legal right.

When you are leaving a company I believe you can force the employer to give you your vacation in lieu of working during the notice period.

You can ask at the Arbeitsgericht in your canton, or at your Gemeinde, they should be able to confirm my statements.

Shamrock76 28.04.2013 10:13

Re: Vacation Accrual
 
Quote:

Originally Posted by solidsnack (Post 1862761)
Is accrued vacation payed out when employment is terminated in Switzerland? I am having some trouble wading through the relevant German sites -- admin.ch, for example -- and thought I'd check with the forum to see what they say. I was terminated not too long ago and my employer is not willing to pay out accrued vacation.

Yes - as far as I know (from my own company), when you or your company terminates your contract, your accrued vacation is paid out in cash. Not sure if there's an employment law on this.

Guest 28.04.2013 11:39

Re: Vacation Accrual
 
Quote:

Originally Posted by Shamrock76 (Post 1862837)
Yes - as far as I know (from my own company), when you or your company terminates your contract, your accrued vacation is paid out in cash. Not sure if there's an employment law on this.

If you get terminated, vacacion time is part of the notice period ! Even if you get kicked out immediatley you will still be "working" for the company until your vacation period is finished.

Corbets 28.04.2013 11:54

Re: Vacation Accrual
 
Paying out of vacation time is not forbidden by Swiss law - as long as the employee takes the statutory minimum amount of vacation time as actual vacation. It can be structured such that you take vacation when you end your contract but still workforce the company, or you might work the full notice period and receive cash compensation for the remaining vacation as a lump sum - that's simply dependent on negotiation.

The vacation time has a value, and the company is not allowed to remove that value from your contract just as you're not allowed to exceed the number of days defined.

That said, companies do have the right to force you to use your vacation. Mine, for example, requires that vacation be used in the year it is earned. That never happens in my case, and they're not contractually allowed to write it off, so the boss often tells me in January to take a few weeks off toget the balance back down to less than two years' vacation, which is within his rights.

When wondering things like this, have a thought about what's most fair to all parties involved. Swiss employment law is actually pretty aligned to "fair", in my opinion, and thinking that way will typically lead you to the right answer.

solidsnack 28.04.2013 20:37

Re: Vacation Accrual
 
Thank you everyone for your helpful posts. I am glad to discover that cashing people out for unused vacation time is not unheard of in Switzerland. In the US it is very standard.

Especially after a termination, one's notice period is not really vacation. I have spent all of it interviewing, researching companies, studying for interviews or providing work samples. There is web site devoted to the law surrounding vacation time in Switzerland and they touch on this exact issue:

http://www.ferienanspruch.ch/ferien-...rbot#ausnahmen

Quote:

Die arbeitsrechtliche Praxis kennt folgende Ausnahmen zum Ferien-Abgeltungsverbot:
  • Beendigung des Arbeitsverhältnisses
    • Ferienbezug ist nicht mehr in natura möglich (bei nachgenannten Ursachen (alternativ oder kumulativ))
      • Stellensuche während Kündigungsfrist
      • ...

----

The practice of labor law recognizes the following exceptions to the ban on compensation for holidays:
  • At the end of employment
    • The use of vacation is not really practical (due to the following causes
      (one or another or altogether))
      • The search for a new position during the notice period
      • ...

The Ferien-Abgeltungsverbot they mention is Obligationenrecht Artikel 329d Absatz 2:

Quote:

Die Ferien dürfen während der Dauer des Arbeitsverhältnisses nicht durch Geldleistungen oder andere Vergünstigungen abgegolten werden.

----

During the time of employment, vacations days may not be substituted for by payments or other benefits.
and they point out that it applies to both the employee and the employer -- neither one can try to arrange an exchange of cash for vacation during the period of employment.

I will try mentioning it to them again and I can include their refusal in my application at the Arbeitslosenkasse.

shobhitg11 21.09.2020 16:11

Re: Vacation Accrual
 
Hi,
I have a similar question. There are a lot of threads, so I am thoroughly confused.

I have about 50 days of accrued vacations. I also have 3 months of notice period. If I resign, what are my scenarios?

Does that mean, the company can force me to take holidays during my notice period and not pay out extra for the accumulated holidays?

Assume my company will probably do the least required by law.

Landers 21.09.2020 19:05

Re: Vacation Accrual
 
Others will chime in but I believe it's this way around:
Generally employers can say when you can and can't have vacation however they can't deny you 'reasonable' vacation within the notice period.
So yes they can make you take it (I believe) but they can't make you not take (all of) it. Anything left should be paid out I believe.


Similar thinking applies when you get garden leave - this will usually use up your vacation days so best not to have a large vacation reserve if you suspect there will be cut-backs (and you will get garden leave)

st2lemans 21.09.2020 19:10

Re: Vacation Accrual
 
They can of course make you take all of it.

Tom

k_and_e 21.09.2020 20:05

Re: Vacation Accrual
 
Quote:

Originally Posted by shobhitg11 (Post 3219109)
Hi,
I have a similar question. There are a lot of threads, so I am thoroughly confused.

I have about 50 days of accrued vacations. I also have 3 months of notice period. If I resign, what are my scenarios?

Does that mean, the company can force me to take holidays during my notice period and not pay out extra for the accumulated holidays?

Assume my company will probably do the least required by law.


If you resign, you can put the employer in a tricky situation. There are 2 scenarios:

1. You hand in notice by the end of the month, work for +/- 10 more days and are gone; or
2. You work more during your notice period and your employer has to pay out the remaining holidays.

3Wishes 21.09.2020 20:36

Re: Vacation Accrual
 
Quote:

Originally Posted by shobhitg11 (Post 3219109)
Hi,
I have a similar question. There are a lot of threads, so I am thoroughly confused.

I have about 50 days of accrued vacations. I also have 3 months of notice period. If I resign, what are my scenarios?

Does that mean, the company can force me to take holidays during my notice period and not pay out extra for the accumulated holidays?

Assume my company will probably do the least required by law.

Also make sure you're clear on how many days you've actually accrued. Most employers seem to give you the days at the start of the year, but if you leave before the end of the year then you didn't yet earn all of those days.

HIAO 21.09.2020 21:07

Re: Vacation Accrual
 
Quote:

Originally Posted by shobhitg11 (Post 3219109)
Hi,
I have a similar question. There are a lot of threads, so I am thoroughly confused.

I have about 50 days of accrued vacations. I also have 3 months of notice period. If I resign, what are my scenarios?

Does that mean, the company can force me to take holidays during my notice period and not pay out extra for the accumulated holidays?

Assume my company will probably do the least required by law.

The responsibility of the employee and employer is to fully utilise your vacation entitlement during the year.

In *most situation, vacation cannot be forfeit, and if it is not possible to utilise the vacation days before the end of employment, this is the only situation where an outstanding balance is due to be paid to the departing employee.

During garden leave, the employer can ask the employee to take their vacation balance. However, Swiss labour courts take the position that during garden leave, the employee is required to focus on finding a new job, and is therefore unlikely to be taking much vacation.

For this reason, a legal ruling judged that employers should not ask an employee to take more than 1/3rd of the total working days (during their garden leave) as vacation.

* most? If an employer can evidence that they repeatedly ask, and creates an environment where it is reasonably possible for all staff to take all their vacation, then they can forfeit untaken vacation that is older than 5 years.

HIAO 21.09.2020 21:12

Re: Vacation Accrual
 
Quote:

Originally Posted by 3Wishes (Post 3219232)
Also make sure you're clear on how many days you've actually accrued. Most employers seem to give you the days at the start of the year, but if you leave before the end of the year then you didn't yet earn all of those days.

Yes. It's common practice that vacation actually accrues monthly at the rate of the annual entitlement divided by 12.

And, employers have the right to reduce vacation entitlement if employees are absent from work for illness or injury that exceeds a month.


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