Is there a legal time window by when my holidays should be paid out?
I have over 40 days of unpaid holidays and my contract is terminated on 31 December 2021. HR informed me that my supervisor does not want to talk about the holiday payout until the end of January.
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Register with RAV and talk to them about it. And remember to start searching for a new job immediately if you don't already, in order to avoid much of an unpaid period.
You contract is terminated on Dec 31st meaning you no longer work there and already got your last payroll or you were served noticed on Dec 31st?
Thank you so much for your feedback.
The situation is like this:
I was on a temporary contract (PhD). My contract is terminated as of 31.12.2021 and I have 40 days of holidays left. HR is trying to get the confirmation to payout my holidays, but my supervisor is delaying it by saying she does not want to talk about this at least until the end of January.
My question is: Is there a legal time window by when I should receive the payout of my holidays?
Thank you for the suggestion. I would also seek legal advice from https://www.zav.ch/en/fuer-rechtssuc...tsstellen.html
My question to you stands as written above. Could you reply?
Yes
There was no notice period. My last payroll was received for December in December.
So your contract ran out naturally correct? How long was it?
That's right.
My contract was from March 2018 to February 2019, renewed: March 2019 to February 2020, renewed: March 2020 to February 2021, renewed: March 2021 to August 2021, renewed: September 2021 to December 2021.
In total, 3 years and 10 months.
I don't get it.. you had a rolling 3 months contract. That contract would have stipulated the notice period and your entitlement to paid holidays and whether the days could be converted to cash and under what circumstances. (I don't think it's the law that an employer has to pay out untaken leave)
They must have given you notice to terminate the contract a stipulated number of weeks before the end of Dec at which point, if you had 40 days untaken holiday - and you were entitled by the contract to have them 'paid out' - you were owed them in your final payment. Anything else means they are in breach of contract.
So basically... did they do what the contract said they had to do ?
I think this one is quite easy. Fixed rate contract, certain amount of holiday agreed. 40 days of that not taken, therefore 40 days payment due.
Is it legal for the employer to withhold that payment after the end of the contract?
Answer, probably not.
Is it legal for the employer to withhold that payment after the end of the contract?
Answer, almost certainly not.
Payment must have happened before the pertaining period has ended, that's why the salary is usually paid on the 24th or 25th. I don't see how that can be after the contract has ended, whether it's about fixed salary or holiday days. Performance based compensation may differ in some circumstances.
OP, contact the Amt für Arbeit und Wirschaft (or similar) of the canton you reside in for advice&help. The first step will probably be something like a nice official letter that informs your ex-employer in no uncertain terms about their obligations.
Also ask them for the proper proceedings (you need to follow them to the dot of the "i") for you to prepare legal action.
To add to Urs Max' post above. Official polite letter sent by registered mail (make sure to keep the receipt) with a request of reply within 14 days in no uncertain terms. SOP here in CH.
I do not believe there is an automatic right to unused holiday being paid out at the end of a contract (please though, tell me if there is) - what does it say in your contract, or did you get something in writing from the Uni that they would pay it?
At my Uni we have to apply to HR to pay it out and there has to be a reason given as to why the holiday available was not taken (illness etc), it is also charged to the employing credit (research project etc) so there have to be funds available and some funders (SNF) do not refund such costs - this is not a clear cut corporate case where this is treated as a 'Golden Goodbye'.
So, before seeking legal advice, please check your initial contract and speak to your supervisor (politely) about this as they are the one who will be footing the bill for any holiday being paid out, not HR.
I really don't think this is the law in CH (happy to be proven wrong) and finding out what is written in the contract would be very interesting here.
You believe wrong. If you have unused holidays, you either take them before contract is up or you get them paid out. A temporary contract cumulates as much holiday as a permanent one. So the case is, as others have said, pretty straight forward.
The employer cannot claim by not taking holidays its the employee's fault and they are now forfeited so paying up is the only way.
Until someone can point me to the CH legislation that says unused holidays must be paid out at the end of the contract I will stick with the real world cases I deal with which are in the same sector as the OP, it might be that the automatic right to be paid for unused holiday is written into contracts in your profession, but I don't believe it is in this case.
My ASSUMPTION is that HR need the Supervisor to support this request to pay out the holiday and the supervisor will need to check if there is sufficient money available/funder will allow it to pay it out which is why I think the OP should speak to the supervisor first.
I had a quick look on the SECO Website and I couldn't find anything which supports an automatic payment of unused holidays, specifically I was looking at:
https://www.seco.admin.ch/seco/de/ho...ht/ferien.html
Dürfen die Ferien mit einer Geldzahlung abgegolten werden?
Can the holidays be compensated for with a cash payment?
Grundsätzlich Nein. Der Erholungszweck der Ferien verlangt, dass diese in natura bezogen werden...
Basically no. The recreational purpose of the holidays requires that they be taken in kind...
Bei Beendigung des Arbeitsverhältnisses ist die Abgeltung der Ferien mit einer Geldzahlung in gewissen Fällen möglich (s. dazu Frage «Dürfen/müssen die restlichen Ferien während der Kündigungsfrist bezogen werden?»).
In certain cases, when the employment relationship is terminated, compensation for vacation with a cash payment is possible (see question “May / must the remaining vacation be taken during the notice period?”).
https://www.seco.admin.ch/seco/de/ho...uendigung.html
Dürfen/müssen die restlichen Ferien während der Kündigungsfrist bezogen werden?
May / must the remaining vacation be taken during the notice period?
Auch während der Kündigungsfrist sollten die Ferien wenn möglich in natura bezogen und nicht durch eine Geldleistung abgegolten werden. Der Arbeitnehmer kann deshalb verlangen, dass er seine restlichen Ferientage auch nach der Kündigung noch beziehen kann. Der Arbeitgeber darf dies nur verweigern, wenn eine betriebliche Notlage vorliegt.
Even during the notice period, holidays should, if possible, be taken in kind and not paid for in cash. The employee can therefore demand that he can still take his remaining vacation days after the notice of termination. The employer may only refuse to do this if there is an operational emergency.
For 'neutrality' I used Google Translate for the English above.
If the OP really wants to go down the legal route then I think this will simply be a waste of time as there is no clear legal framework for the automatic payment, SECO always talks about 'certain cases' and the working assumption is that it is up to you to take your holiday entitlement.
Unless there has been some sort of fatal breakdown it would be much better for the OP to talk to their supervisor first before getting 'lawyered up' as they are the ones who would have to support a request for such a payment.
S/he did. The supervisor's "I can't be bothered" is as clear as it gets.
Depending on when the first unused days were accrued, they may start to lapse in 15 months (some five years after the end of the first month) as each time-limited contract is its own thing (probably, subject to the details). Thus the unused days are probably not transferable to the next one. So while there's no partiular hurry there's not much time to waste either. Did you know there's a pandemic happening?
Nobody says to lawyer up. The advice is to call on the authorities for help, they do it for free (otherwise they inform you beforehand).
You're right that the claim isn't 100% clear, just 99%. But it makes no sense to keep pulling worms out of OP's nose like kri did/had to, much of that info doesn't belong on an open forum in the first place.