The new case law that workers also an allowance in lieu have if they were all over the leave year and over the vesting period beyond sick, applies not only to the statutory minimum leave, but also for the additional leave of severely disabled people. For over and above the statutory minimum holiday entitlement to leave the tariff agreement, however, parties may determine that compensation is ruled out.
The case:
The handicapped applicant has worked since 1971 in the field for the defendant. On the employment of the collective agreement for employees of the Federal Insurance Institute for Salaried Employees, was applicable, the one above the legal minimum holiday entitlement in excess leave envisaged.
The plaintiff was the beginning of September 2004 until the termination of the employment relationship on 09/30/2005 incapacitated for work because of a severe disc disease. In his application, he demanded compensation
- the statutory minimum leave,
- the severely disabled and leave
- the statutory rate on leave for the years 2004 and 2005.
After the defendant had accepted the conviction on appeal to settle the minimum holiday entitlement, the parties argued in the review only on the settlement of the severely disabled and the supplementary period of collective legal holiday.
The BAG was an action for compensation for the severely disabled supplementary period as opposed to an action for compensation in the statutory More holiday instead.
The reasons:
The plaintiff against the defendant is entitled to compensation for the supplementary period for the handicapped.
The new jurisdiction of the Senate (BAG, ruling of 03.24.2009 - 9 AZR 983/07), under which the four-week statutory minimum leave is at the termination of the employment relationship even financially compensated do if employees are off work sick until the end of the transfer period , applies to the severely disabled, according to additional leave.
shares entitlement to severe disability additional leave the legal fate of the minimum holiday entitlement.
However
is not entitled to compensation in the statutory holiday More.
The collective bargaining parties may stipulate that over and above the statutory minimum leave allowance in lieu of tariff is void if the leave entitlement because of the illness of the employee can not be met. Such legislation is available here. Claims for compensation in the statutory More holiday should go down to the apparent will of the parties to collective agreements at the end of the transmission tariff period.
(BAG decision of 23.3.2010, 9 AZR 128/09 - Source: BAG PM No 25 of 23.3.2010)
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