If my employment is terminated after the co-operation negotiations, what will happen to my accumulated time off in lieu?

My employer commenced co-operation procedures to reduce the number of personnel. The proposal for negotiations and its appendices were written on Friday, but they were distributed via e-mail on Saturday when the server did not work. The employees’ representative and employees received the invitation on Monday. The negotiations started on Wednesday.

 

The co-operation negotiations resulted in the termination of 12 employment contracts. The supervisor had informed two of the employees about the termination of their employment confidentially by e-mail before the negotiations. At the final negotiations, the employer combined the release from the obligation to work with the holding of holidays during the notice period. In the employer’s view, it was agreed that the so-called new holidays – i.e. the holidays that would have taken place in summer 2010 had the employment continued – should be held during the notice period after the obligation to work had lifted. Likewise, the employer ruled that our release from the obligation to work gave us the right to statutory employment leave, which we would not be compensated for.

 

I have 120 overtime hours and 15 flextime hours, which I will not be able to take off in lieu before my employment terminates. What will happen to the accumulated hours when the employment terminates?

 

The written proposal for negotiations and the statutory information appended to it must be issued at least five days prior to the commencement of the negotiations. This requirement was not met in the negotiations referred to in the question.

 

The co-operation procedure should primarily be conducted between the employer and the employees’ representative, i.e. the shop steward or the elected representative. Matters pertaining to an individual employee shall be discussed between the employee and the employer. However, employees have the right to demand the handling of the matter between their representative and the employer.

  

Redundancy negotiations shall be held in a cooperative spirit, in order to achieve an unanimous outcome. The grounds and effects of the measures shall be discussed at the negotiations. The negotiations shall always include a discussion on how to limit the number of personnel affected by the measures and how to mitigate the personnel effects caused by them. The negotiations shall be held in two or more sessions.

 

If the intention is to serve notice of termination to at least ten employees due to financial or production-related reasons, the employer shall at the commencement of the negotiations provide the employees’ representatives with a proposal on a plan of action to promote employment. If the employer’s intention is to terminate the employment of less than ten employees, the employer shall present the principles for the promotion of employment at the commencement of the negotiations.

  

The employees whose employment has been terminated are entitled to the employment programme compiled by the Employment and Economic Development Office, the so-called change security. In order to be eligible for change security, the person’s employment must have been terminated on financial or production-related grounds and the person must have an employment history of at least three years with the same employer or another employer. Within the programme, the parties agree on potential co-operation with the employer on termination matters and on the employee’s independent job-seeking, analyse the job-seeker’s employment and training opportunities, and agree on other measures that develop their professional skills.

 

Since July 2009, job-seekers who – at the termination of their employment – have an employment history of at least five years within the last seven years are also eligible for the programme. Employees laid off for a period of 180 calendar days are also eligible for the programme, provided that their employment history covers at least three years.

  

The employment programme is voluntary, but a person who has entered the programme may not leave it before the maximum period of 500 days has expired.

 

The co-operation negotiation period is either six or two weeks. If the employer’s intentions to terminate employment, lay off personnel for over 90 days or reduce employment contracts to part-time contracts concern at least ten employees, the negotiation period is six weeks from the commencement of the negotiations.

 

If the employer’s intended terminations of employment, lay-offs or part-time employment arrangements concern less than ten employees, the negotiation period is two weeks. If the lay-off period does not exceed 90 days and if the lay-offs concern at least ten employees, the the negotiation period is two weeks.

  

The employer shall, on request, ensure that minutes are prepared on the negotiations. The minutes should indicate at least the negotiation time, participants, outcomes and any dissenting opinions. Signing the minutes means confirming their correspondence with the actual negotiations. If a participant feels the minutes do not correspond to the actual negotiations, they should not be signed.

 

Notifying of the termination of employment before or during the co-operation negotiations violates the Act on Co-operation within Undertakings.

  

The legal compliance of the co-operation procedure and the actual grounds for termination are evaluated separately and independently from each other. An employer who has terminated the employment of or laid off an employee, or reduced an employment contract to a part-time contract in violation of the Act on Co-operation within Undertakings is obligated to pay indemnification to the employee whose contract was terminated or reduced to a part-time contract or who was laid off. The maximum indemnification amount is EUR 30,000.

  

In accordance with the Annual Holidays Act, the so-called new holiday, i.e. the summer holiday of 2010, could be granted before May 2 (marking the start of the new holiday season), only if such an arrangement was agreed upon between the employer and the employee. The existence of an agreement on the timing of the holiday shall be determined on the basis of an overall assessment of the circumstances. It is not necessary to make an agreement on the annual holiday, since any remaining annual holiday earned up to the end of employment shall be converted into holiday compensation.

 

The employee’s right to employment leave is based on the Employment Contracts Act. The length of the employment leave is determined by the notice period as follows:

1. a maximum of five working days in total, if the notice period does not exceed one month;
2. a maximum of 10 working days in total, if the period of notice is longer than one month but does not exceed four months;
3. a maximum of 20 working days in total, if the period of notice is longer than four months.

 

The employee is entitled to fully paid leave in order to participate during his or her period of notice in the preparation of an employment plan as referred to in the Act on Public Employment and Business Service, in labour market training or related practical training or on-the-job learning, or to engage in job-seeking and attend job interviews on his or her own initiative or at the initiative of the authorities, or to attend re-assignment coaching.

 

When the employees’ obligation to work is lifted, they are automatically entitled to employment leave without separate agreement; no separate compensation shall be paid for the days taken as employment leave. When the obligation to work has not been lifted by agreement and the employment leave is applied, the employee must notify the employer about the use of the employment leave or a portion of it as early as possible and present, on request, a reliable account of the grounds for each period of leave.

 

Any overtime and flextime hours earned up to the end of employment shall be paid as cash.