Varuh ДЌlovekovih pravic

Vacation pay and leave of absence: a right that cannot be arbitrarily restricted or withdrawn

The Ombudsman found that the social work centre unjustifiably intervened in the complainant’s right to vacation pay and leave of absence by including the revenue under the complainant’s savings.

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The Human Rights Ombudsman of the Republic of Slovenia (the Ombudsman) was informed about the case, in which a complainant faced a problem while managing his finances. In the part referring to the disposal of real estate and large amounts of cash, the complainant was declared as contractually incompetent and the social work centre was appointed as his custodian. The latter did not pay the complainant the so-called solidarity allowance and vacation pay. The social work centre believed that this income should be considered as savings and the complainant was unable to go on vacation due to this.

The Ombudsman contacted the social work centre for further explanation. The social work centre explained that the income was considered as additional sum that was invested under savings and that this income was subsequently paid to the complainant in lower amounts to enable a higher standard in the long-term.

The Ombudsman could not agree with the explanation. Vacation pay (or annual allowance)[1] is a legal right that cannot be waived[2] and is intended for going on annual leave. According to the Ombudsman’s opinion, the social work centre’s interpretation is unacceptable because it considers funds that are intended for a specific purpose as savings without considering the will of the complainant. With such conduct, the social work centre limits the right of the complainant, which is otherwise enabled on the basis of the law and cannot be subjected to arbitrary decision-making by the custodian.

To avoid inaccurate understanding, this does not mean that the Ombudsman believes that funds intended for annual leave cannot be spent differently (or invested for times of need), but that when the person who received the intended (!) funds expresses their preference for spending the funds, this preference must be considered and the person enabled to go on vacation and offered all possible help and support. The Ombudsman also warned about the provision of the second paragraph of Article 264 of the Family Code that determines that protecting the person’s individual rights demands that the custodian enables that person to live their life in accordance with their own wishes. This means that the custodian must act for the benefit of the person, therefore, they must base their actions on the wishes of the person and not on their own wishes or the expectations of the average individual.[3] According to the Ombudsman’s opinion, this also incorporates enabling the person to spend their annual leave in accordance with their wishes and their financial situation.

Considering the above, the Ombudsman recommended that the social work centre conduct an interview with the complainant with regard to annual leave and vacation pay and to consider their wishes to the greatest possible extent as well as enable them to take a vacation by considering the financial limitations. Prior to receiving our letter, the social work centre had already conducted the interview and paid the vacation pay to the complainant. However, the complaint was still regarded as founded. 9.6-17/2021

[1] The nature of annual allowance has the same features as vacation pay in labour legislation. See explanatory note to Article 95 of the proposal for the Pension and Disability Insurance Act (ZPIZ-2) EVA 2012-2611-0001.

[2] Scortegagna-Kavčnik Nina, Regres za letni dopust, Pravna praksa, no. 18, 2016, p. 11˗13.

[3] Razlaga k takratnemu 266. členu Družinskega zakonika (obveznosti skrbnika), EVA: 2016-2611-0062.