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How is the right to unpaid leave regulated?
How is the right to unpaid leave regulated?
How is the right to unpaid leave regulated?
According to the Labour Code of the Republic of Azerbaijan, the right to leave, including unpaid leave, is one of the fundamental rights of employees. Under subparagraph “x” of Article 9 of the Code, employees are entitled each year to use the main paid leave of not less than the minimum duration provided for in this Code, as well as additional, social, unpaid, and study leaves, where applicable. But who can be granted unpaid leave and under what conditions? Can an employer refuse this? Human resources expert Ramin Hajiyev provides clarification on these questions.
Regulation of the right to unpaid leave
Under Article 128 of the Labour Code, employees are entitled to unpaid leave in order to fulfil family, household, or other social duties that cannot be postponed, to pursue education, engage in creative or scientific work, or when it becomes necessary to take time off work due to age or physiological characteristics.
Article 129 of the Code states that there are two types of unpaid leave:
- unpaid leave granted at the employee’s request;
- unpaid leave granted by mutual agreement of the parties.
Unpaid leave at the employee’s request is granted in the following cases and for the following durations:
- to one parent of a child with a chronic illness (based on a medical commission’s opinion), or to another family member directly caring for the child – until the child reaches 4 years of age;
- to men whose wives are on maternity leave – up to 14 calendar days;
- to women with children under 16 years old, as well as single parents, guardians, or custodians – up to 14 calendar days;
- to employees with disabilities, regardless of the percentage or cause of functional impairment – up to 1 calendar month;
- to employees injured (wounded, traumatised, concussed) during the defence of the territorial integrity and sovereignty of the Republic of Azerbaijan – up to 14 calendar days;
- to parents raising a child living with HIV, as well as to parents of a child with disabilities – up to 14 calendar days;
- to employees enrolled in doctoral (postgraduate) studies – up to 1 calendar month;
- to employees admitted to university entrance exams – 14 calendar days, and to college entrance exams – 7 calendar days;
- to the author of an invention or a rationalisation proposal during its initial implementation outside the workplace – up to 14 calendar days;
- to one relative caring for a sick family member – up to 14 calendar days (with medical confirmation);
- to employees with children with disabilities – up to 14 calendar days;
- to employees for resolving family, household, and other social matters – up to 7 calendar days.
In the above cases, when an employee applies for unpaid leave, the employer is obliged to grant it. Submission of the required supporting documents is also mandatory.
The second type of unpaid leave is leave granted by mutual agreement of the parties.
According to part 2 of Article 129 of the Labour Code, based on the mutual agreement of the employer and the employee, as well as in cases provided for by collective agreements or employment contracts, unpaid leave may be granted for a period not exceeding six months, as determined by the parties.
As the provision makes clear, if both parties agree, unpaid leave can be used. However, even with the employer’s consent, the duration of unpaid leave granted by mutual agreement may not exceed six months.
Example: An employee uses 3 months of unpaid leave with the employer’s consent. After returning to work for 1 month, the employee may again take 4 months of unpaid leave.
It should also be noted that an employee may use the right to unpaid leave, whether granted by mutual agreement or at the employee’s request, regardless of when the employment contract was concluded.
Employers may also place groups of employees on paid or unpaid leave due to suspension of work at the enterprise. This is allowed only if there are factors disrupting the normal workflow – such as natural disasters, industrial accidents, or other uncontrollable circumstances – and provided that such conditions and procedures are defined in collective agreements, or in employment contracts where no collective agreement exists.
Procedure for formalising unpaid leave
Under Article 138 of the Labour Code, all types of leave are formalised by the employer’s order (instruction, decision) on the basis of the employee’s written application. Thus, all leave, including unpaid leave, requires an application from the employee and an official order from the employer.
According to Article 132 of the Labour Code, the period of unpaid leave is not included in the length of service that grants the right to paid annual leave. If an employee takes 2 months of unpaid leave within one working year, this period will not be counted when calculating annual paid leave.
The periods included in the length of service that grants the right to leave are:
- the employee’s actual working time;
- periods of absence from work when salary is preserved, as provided for in the Code;
- periods of forced absence due to unlawful dismissal or transfer, if the employee is reinstated;
- periods of temporary disability;
- periods of unlawful removal from office or detention, if the employee is subsequently acquitted and reinstated in accordance with the law.
The time spent on partially paid or unpaid leave is considered a period not included in the leave-entitling service. Although Article 132 does not directly list unpaid leave as a non-qualifying period, since no average wage is maintained and the employee does not actually work during unpaid leave, it is considered a period that does not generate leave-entitling service.
It should also be emphasised that, under Article 192.5 of the Code of Administrative Offences, violation of employees’ rights to leave entails liability, with officials subject to fines ranging from 1,500 to 2,000 manats.
How is the right to unpaid leave regulated?
According to the Labour Code of the Republic of Azerbaijan, the right to leave, including unpaid leave, is one of the fundamental rights of employees. Under subparagraph “x” of Article 9 of the Code, employees are entitled each year to use the main paid leave of not less than the minimum duration provided for in this Code, as well as additional, social, unpaid, and study leaves, where applicable. But who can be granted unpaid leave and under what conditions? Can an employer refuse this? Human resources expert Ramin Hajiyev provides clarification on these questions.
Regulation of the right to unpaid leave
Under Article 128 of the Labour Code, employees are entitled to unpaid leave in order to fulfil family, household, or other social duties that cannot be postponed, to pursue education, engage in creative or scientific work, or when it becomes necessary to take time off work due to age or physiological characteristics.
Article 129 of the Code states that there are two types of unpaid leave:
- unpaid leave granted at the employee’s request;
- unpaid leave granted by mutual agreement of the parties.
Unpaid leave at the employee’s request is granted in the following cases and for the following durations:
- to one parent of a child with a chronic illness (based on a medical commission’s opinion), or to another family member directly caring for the child – until the child reaches 4 years of age;
- to men whose wives are on maternity leave – up to 14 calendar days;
- to women with children under 16 years old, as well as single parents, guardians, or custodians – up to 14 calendar days;
- to employees with disabilities, regardless of the percentage or cause of functional impairment – up to 1 calendar month;
- to employees injured (wounded, traumatised, concussed) during the defence of the territorial integrity and sovereignty of the Republic of Azerbaijan – up to 14 calendar days;
- to parents raising a child living with HIV, as well as to parents of a child with disabilities – up to 14 calendar days;
- to employees enrolled in doctoral (postgraduate) studies – up to 1 calendar month;
- to employees admitted to university entrance exams – 14 calendar days, and to college entrance exams – 7 calendar days;
- to the author of an invention or a rationalisation proposal during its initial implementation outside the workplace – up to 14 calendar days;
- to one relative caring for a sick family member – up to 14 calendar days (with medical confirmation);
- to employees with children with disabilities – up to 14 calendar days;
- to employees for resolving family, household, and other social matters – up to 7 calendar days.
In the above cases, when an employee applies for unpaid leave, the employer is obliged to grant it. Submission of the required supporting documents is also mandatory.
The second type of unpaid leave is leave granted by mutual agreement of the parties.
According to part 2 of Article 129 of the Labour Code, based on the mutual agreement of the employer and the employee, as well as in cases provided for by collective agreements or employment contracts, unpaid leave may be granted for a period not exceeding six months, as determined by the parties.
As the provision makes clear, if both parties agree, unpaid leave can be used. However, even with the employer’s consent, the duration of unpaid leave granted by mutual agreement may not exceed six months.
Example: An employee uses 3 months of unpaid leave with the employer’s consent. After returning to work for 1 month, the employee may again take 4 months of unpaid leave.
It should also be noted that an employee may use the right to unpaid leave, whether granted by mutual agreement or at the employee’s request, regardless of when the employment contract was concluded.
Employers may also place groups of employees on paid or unpaid leave due to suspension of work at the enterprise. This is allowed only if there are factors disrupting the normal workflow – such as natural disasters, industrial accidents, or other uncontrollable circumstances – and provided that such conditions and procedures are defined in collective agreements, or in employment contracts where no collective agreement exists.
Procedure for formalising unpaid leave
Under Article 138 of the Labour Code, all types of leave are formalised by the employer’s order (instruction, decision) on the basis of the employee’s written application. Thus, all leave, including unpaid leave, requires an application from the employee and an official order from the employer.
According to Article 132 of the Labour Code, the period of unpaid leave is not included in the length of service that grants the right to paid annual leave. If an employee takes 2 months of unpaid leave within one working year, this period will not be counted when calculating annual paid leave.
The periods included in the length of service that grants the right to leave are:
- the employee’s actual working time;
- periods of absence from work when salary is preserved, as provided for in the Code;
- periods of forced absence due to unlawful dismissal or transfer, if the employee is reinstated;
- periods of temporary disability;
- periods of unlawful removal from office or detention, if the employee is subsequently acquitted and reinstated in accordance with the law.
The time spent on partially paid or unpaid leave is considered a period not included in the leave-entitling service. Although Article 132 does not directly list unpaid leave as a non-qualifying period, since no average wage is maintained and the employee does not actually work during unpaid leave, it is considered a period that does not generate leave-entitling service.
It should also be emphasised that, under Article 192.5 of the Code of Administrative Offences, violation of employees’ rights to leave entails liability, with officials subject to fines ranging from 1,500 to 2,000 manats.