Consultation on payment for unused leave

Question:

Dear Lawyer, our company is facing several resignation cases with legal violations as follows:

1. Disappearance: Some employees abandoned their shifts for more than five consecutive days, and we are currently processing their termination as dismissal.
2. Resignation with insufficient notice: Employees are required to give 30-45 days’ notice. However, some individuals failed to meet this requirement and requested early termination. The company has denied their requests and wants them to be held accountable for the violation.

We would like your legal advice on whether the company is required to pay for unused leave in these cases. Are there any circumstances where the company is not obliged to compensate for unused leave?

Regarding the first case (disappearance), if we proceed with dismissal and issue a termination decision, can we penalize the employees for unlawfully terminating the employment contract under Article 40 of the 2019 Labor Code?

Answer:

Based on Clause 3, Article 113 of the 2019 Labor Code, if an employee loses their job or resigns without using up their annual leave, they are entitled to payment for unused leave. Therefore, in all the cases you mentioned, the company is obligated to pay for any remaining leave days, if any.

1. Disappearance Case: In this situation, the company is dismissing the employee due to unauthorized absence for five consecutive days, as stipulated in Clause 4, Article 125 of the Labor Code. This does not qualify as unlawful unilateral termination by the employee. As a result, the company cannot demand compensation for unlawful termination under Article 40.
2. Unlawful unilateral termination of Employment Contract: This applies to employees who attempt to shorten their notice period without approval. Even if the company denies the early termination request, if the employee still leaves on the notified date, this constitutes unlawful termination. In this case, the employee must compensate the company for wages corresponding to the notice period not fulfilled.

However, the employee is still entitled to receive payment for any unused leave days, regardless of the violation.