When you have been working in the same job for a long time, sometimes wear and tear makes you not perform at your best. Although there are holidays to recover and recharge, there is another figure that not many know, but that may be interesting to take into account. We are talking about voluntary leave.
But What is a voluntary leave of absence? What rights do you have? Who can apply it? How do you order? If you want to know more about this figure that is contemplated in the Workers' Statute, as well as in other laws, here we tell you more about it.
What is voluntary leave
To define voluntary leave, we should first go to article 46 of the Workers' Statute, or ET, where the following is stated:
"1. The leave of absence may be voluntary or forced. The forced, which will give the right to the retention of the position and the computation of the length of its validity, will be granted by the appointment or election to a public position that makes it impossible to attend work. The reentry must be requested within the month following the cessation of public office.
2. The worker with at least one year of seniority in the company has the right to be recognized the possibility of taking voluntary leave of absence for a period of no less than four months and no more than five years. This right may only be exercised again by the same worker if four years have elapsed since the end of the previous voluntary leave.
3. Workers will have the right to a period of leave of absence of duration not exceeding three years to take care of each child, both when it is by nature, as by adoption, or in the cases of custody for the purpose of adoption or permanent foster care , counting from the date of birth or, where appropriate, from the judicial or administrative resolution.
Workers to care for a relative up to the second degree of consanguinity or affinity will also have the right to a period of leave, lasting no more than two years, unless a longer duration is established by collective bargaining, than for reasons of age, accident, illness or disability cannot fend for himself, and does not carry out paid activity.
The leave of absence contemplated in this section, the period of which may be enjoyed in a fractional manner, constitutes an individual right of the workers, men or women. However, if two or more workers of the same company generate this right by the same causative party, the employer may limit its simultaneous exercise for justified reasons of operation of the company.
When a new causative subject gives the right to a new period of leave, the beginning of the same will end the one that, if applicable, has been enjoying.
The period in which the worker remains on leave of absence in accordance with the provisions of this article will be computable for seniority purposes and the worker will have the right to attend professional training courses, whose participation must be summoned by the employer, especially with occasion of his reinstatement. During the first year you will have the right to reserve your job. After this period, the reservation will be referred to a job in the same professional group or equivalent category.
However, when the working person is part of a family that is recognized as a large family, the reservation of their job will be extended to a maximum of fifteen months in the case of a large family of general category, and up to maximum of eighteen months if it is a special category. When the person exercises this right with the same duration and regime as the other parent, the job reservation will be extended to a maximum of eighteen months.
4. Likewise, workers who exercise provincial or higher union functions for the duration of their representative office may request their passage to the situation of leave of absence in the company.
5. The worker on voluntary leave retains only one preferential right to re-entry in vacancies of the same or similar category to his own that exist or occur in the company.
6. The situation of leave of absence may be extended to other cases collectively agreed upon, with the regime and the effects provided therein. "
Based on the above, we can define voluntary leave as a situation in which a worker requests a suspension of the employment contract from his company. In this way, not even the worker has to go to work. Nor does the company have to pay him his salary, or even contribute for him.
As it is voluntary, it implies that it is the worker who requests it, for any reason, without giving explanations to the company. Provided it is incurred in good faith.
Of course, this has a number of repercussions that must be taken into account.
Who can request voluntary leave
In order to request voluntary leave it is necessary that a series of requirements What are they:
- That you have an employment contract with the company.
- That has a minimum age of one year.
- Has not applied for a voluntary leave of absence in the last four years.
If all this is done, you can start the paperwork It must be taken into account, as it is said in the ET, that this will be of a minimum of four months and a maximum of five years.
Actually, the ET establishes different modalities of this type of leave of absence. But it does not mean that only in those situations can it be requested. In fact, it can be ordered for any reason without having to give explanations to the company itself.
How to request a voluntary leave of absence
If after what you have read you think that is what you need to do, it is necessary that you know what are the steps you must take to request a voluntary leave of absence.
In this case, The first thing to do will be to write a letter from the worker where he communicates to the company the use of the right to a voluntary leave of absence. In this document it is not necessary to specify the reasons that lead you to this. But there is a duration, both at the beginning and at the end. In addition, you have to know if there is a minimum notice period under the Collective Agreement. And if there is not, it should be announced to the company as soon as possible so that it can respond (affirmatively or negatively) to that request.
In this case, you can find two assumptions:
- The company accepts your right. In this case, when the date that you have determined as the start arrives, the employment relationship will be suspended, which is not broken. After time, as long as it is not more than five years, you will be able to reintegrate again whenever there are vacancies.
- The company does not accept your right. You will have to sue for breach of a right and, until there is a firm judicial resolution, you will have to continue working. In these situations, many workers end up asking for voluntary dismissal when it is impossible to reconcile the problem that led to a voluntary leave of absence with the working day.
In no case should a worker stop going to his job, because if he does, the company could fire him for abandonment of work. If the company does not respond to the request, as in the case of non-acceptance, it will be necessary to sue and wait for the result of this.
Back to work
The first thing you should know about voluntary leave is that, if you ask for it, the company is not obliged to reserve your job for you. In other words, when you want to return to the company, it does not have to give you the same job that you had before. In reality, what you will have is only a right of preferential re-entry. What does this mean? Well, if there is any vacancy in a position of the same or similar category, they will offer it to you.
However, that does not mean that, by Collective Agreement, or by other regulations that govern the management of the company, other characteristics cannot be established. For example, if there is a position reservation for a limited time, and after this it is only a preferential re-entry.
How to request re-entry to the company
Provided that five years have not elapsed since the voluntary leave, the worker may request the company, in writing, to request re-entry to a job.
La The company must study this request, studying the vacancies that may exist and respond to that request. This is recommended to do as soon as possible, especially since the closer to the end of the voluntary leave the worse it will be.
As for the company's response, you may find yourself with multiple options:
- That does not respond: You will have to sue for your right to re-entry (which is not being attended), as well as for a dismissal. For legal purposes, the fact that the company does not respond within a certain period is equivalent to a dismissal, and it would be necessary to report.
- Accept the request: The company will offer the worker a job of the same or similar category and the worker may accept or not. If you accept, you can go back to work; if not, then it is as if he said goodbye (unless what he was offered was not of the same or similar category).
- Does not accept the application but does not deny re-entry: This usually happens when companies do not have vacancies at those times. And, therefore, the worker cannot rejoin. You have to wait a while to reapply for re-entry.
- Do not accept the application and do not want re-entry: It qualifies as a dismissal, and therefore the company can be sued.