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Can the employment contract of an employee who is on leave be terminated?
Can the employment contract of an employee who is on leave be terminated?
Article 79 of the Labour Code of the Republic of Azerbaijan lists the cases and categories of employees for whom the termination of an employment contract by the employer is prohibited. According to this article, the employer is prohibited from terminating the employment contract of:
• pregnant women, as well as women with children under the age of three, and men who are raising a child under the age of three on their own;
• employees whose only source of income is the enterprise where they work and who are raising a child of preschool age on their own;
• employees who have temporarily lost their ability to work;
• employees suffering from diabetes or multiple sclerosis;
• employees due to their membership in a trade union or any political party;
• employees who have a child with a disability under their care or another family member determined to have a disability due to 81–100% impairment of bodily functions;
• employees during their period of annual leave, business trip, or participation in collective negotiations — in these cases, termination on the grounds specified in Article 70 of the Labour Code is prohibited.
As seen, one of these cases is that the employment contract of an employee who is on leave, on a business trip, or participating in collective negotiations cannot be terminated on the grounds specified in Article 70 of the Labour Code. But can the employment contract of an employee on leave be terminated in any exceptional case? Can an employee on leave resign based on their own request? Expert Nüsrət Khalilov clarifies these questions.
Under Article 70 of the Labour Code, an employment contract may be terminated by the employer on the following grounds:
a) when the enterprise is liquidated;
b) when the number of employees or staff positions is reduced;
c) when a competent authority adopts a decision that the employee does not meet the requirements of the position due to insufficient professional qualification or skills;
ç) when the employee fails to perform their job duties or the obligations under the employment contract, or when they grossly violate labour duties in the cases listed in Article 72 of the Code;
d) when the employee does not pass the probation period;
e) when an employee of an organisation financed from the state budget reaches the age limit for employment.
Thus, the employment contract of the persons listed in Article 79 cannot be terminated on the grounds specified in Article 70. The only exception is subparagraph “a” of Article 70. Subparagraph “a” refers to “liquidation of the enterprise”. This means that when the enterprise is liquidated, the employment contracts of all employees working there may be terminated on this basis.
Consequently, according to Article 79 of the Labour Code of the Republic of Azerbaijan, the employment contract of an employee who is on leave cannot be terminated by the employer, except for the case specified in subparagraph “a” of Article 70.
So, can an employee on leave terminate the employment contract based on their own request?
An employee has the right to terminate the employment contract on their own initiative at any time — including during their period of leave. For this, the employee must submit a written application to the employer.
While Article 70 regulates termination by the employer, termination initiated by the employee is governed by Article 68 of the Labour Code.
According to Article 143 of the Labour Code, when an employee who has unused annual leave days terminates the employment contract on their own will, they are granted the unused leave for the relevant work year(s), and the last day of leave is considered the date of dismissal. Alternatively, the employee may submit a resignation request after they have already gone on leave. In this case, termination is carried out in accordance with Article 69 (rules for termination by the employee).
Summary
• Termination of an employment contract for an employee who is on leave is restricted only in cases where the employer terminates the employment contract (Article 79).
• An employee may apply to terminate the employment contract on their own initiative at any time—regardless of whether they are on leave.
Example 1: The employee is on leave from October 1 to 20. On October 15, they submit an application requesting termination of their employment contract on their own initiative effective from October 20. What happens in this situation?
The employee’s application is valid. Even if the employee is on leave, they may request termination. However, the requirements of Article 69 of the Labour Code must be observed. Under this article, an employee may terminate the employment contract by notifying the employer in writing (on paper or via an electronic information system) at least one calendar month in advance. After one month from the date of application, the employee has the right not to report to work and to request final settlement. The employer is obliged to meet these requirements.
In this example, the employee submitted the application on October 15 and requested termination on October 20, providing only a 5-day notice period, which violates the standard one-month notice rule.
If both the employee and employer agree, the employment contract may be terminated on October 20 under Article 69.3 of the Labour Code.
If the employer accepts the request and agrees to terminate on that date, termination may occur accordingly. Otherwise, the employer may demand compliance with the full one-month notice period.
Being on leave does not prevent an employee from submitting a termination request.
The employee may request termination even while on leave.
Example 2: The employee is on leave from October 1 to 20. On October 5, they submit an application requesting termination effective from October 10. How will the situation be handled?
One-month notice period: When an employee wishes to terminate the employment contract, they must notify the employer in writing at least one calendar month in advance.
Here, the notice period is shorter than required. From October 5 to October 10, there are only 5 days—less than the prescribed one-month notice period.
Conclusion:
Even if the employer accepts the application, termination cannot legally take effect on October 10. It may only become effective one month after the application date—on November 5.
In this case, the employee will remain on leave until October 20 and must return to work from October 20 until November 5, after which the contract will be terminated and the final settlement completed.
• If the employer agrees, according to Article 69.3, the employment contract may be terminated on the date indicated in the application. In this scenario, the employee would be recalled from leave early (October 10), and the employment contract would be terminated on that date, with compensation paid for unused leave days.
Effect on leave:
Being on leave does not affect the notice period—notice must still comply with the one-month requirement.
In general:
• The employee must give at least one month’s written notice to terminate the contract.
• Being on leave does not change this requirement.
• If the employee requests termination on their specified date without waiting one month, this is only possible with the employer’s consent under Article 69.3.
• Otherwise, termination is postponed until the end of the notice period.
Article 69.6 rule on using leave before termination
Under Article 69.6, an employee may apply to take their leave for the relevant work year and request termination effective on the last day of the leave period.
Until the end of the leave period, the employee may withdraw their termination application or declare it invalid by written notice (paper or electronic). In this case, the employer must comply with the request.
Example 3: An employee worked from January 1 to December 31, 2023. They decide to take leave in January 2024 and request termination after the leave ends. They submit their application on January 5, 2024:
“I request to take my leave starting January 5, 2024, under Article 69.6, and to terminate my employment contract on the last day of the leave period—February 5, 2024.”
This application is valid.
Example 4: An employee submitted an application in December 2023 to take leave and terminate the employment contract afterward. However, while on leave in January 2024, they change their mind and submit a new application on January 15, 2024:
“I withdraw my previous application requesting termination of the employment contract submitted in December 2023. As I have changed my decision during my leave, I request that the contract not be terminated and that I continue in my current position.”
In this case, the employment contract cannot be terminated—provided that the employer has not officially informed the employee (in writing or electronically) that a new employee has been hired for that position.
If the contract has already been terminated following the legal procedure, the employee’s withdrawal request has no legal effect.
Key Principles
No new employee hired:
If the employer has not appointed a new employee to the position before terminating the contract, the employee may withdraw their application. In this case, the contract cannot be terminated.
New employee hired and notice provided:
If the employer has already hired a replacement and has officially notified the employee (in writing or electronically), the employee cannot legally withdraw their application. The contract will be terminated as planned.
Conclusion
Article 69.6 of the Labour Code protects the employee’s rights in termination procedures.
However, the exercise of this right depends on specific conditions:
• If no new employee has been hired—or the employee has not been notified of such hiring—the employee may withdraw their application, and the contract will not be terminated.
• Otherwise, even if the employee withdraws the application, the contract will still be terminated.
Article 79 of the Labour Code of the Republic of Azerbaijan lists the cases and categories of employees for whom the termination of an employment contract by the employer is prohibited. According to this article, the employer is prohibited from terminating the employment contract of:
• pregnant women, as well as women with children under the age of three, and men who are raising a child under the age of three on their own;
• employees whose only source of income is the enterprise where they work and who are raising a child of preschool age on their own;
• employees who have temporarily lost their ability to work;
• employees suffering from diabetes or multiple sclerosis;
• employees due to their membership in a trade union or any political party;
• employees who have a child with a disability under their care or another family member determined to have a disability due to 81–100% impairment of bodily functions;
• employees during their period of annual leave, business trip, or participation in collective negotiations — in these cases, termination on the grounds specified in Article 70 of the Labour Code is prohibited.
As seen, one of these cases is that the employment contract of an employee who is on leave, on a business trip, or participating in collective negotiations cannot be terminated on the grounds specified in Article 70 of the Labour Code. But can the employment contract of an employee on leave be terminated in any exceptional case? Can an employee on leave resign based on their own request? Expert Nüsrət Khalilov clarifies these questions.
Under Article 70 of the Labour Code, an employment contract may be terminated by the employer on the following grounds:
a) when the enterprise is liquidated;
b) when the number of employees or staff positions is reduced;
c) when a competent authority adopts a decision that the employee does not meet the requirements of the position due to insufficient professional qualification or skills;
ç) when the employee fails to perform their job duties or the obligations under the employment contract, or when they grossly violate labour duties in the cases listed in Article 72 of the Code;
d) when the employee does not pass the probation period;
e) when an employee of an organisation financed from the state budget reaches the age limit for employment.
Thus, the employment contract of the persons listed in Article 79 cannot be terminated on the grounds specified in Article 70. The only exception is subparagraph “a” of Article 70. Subparagraph “a” refers to “liquidation of the enterprise”. This means that when the enterprise is liquidated, the employment contracts of all employees working there may be terminated on this basis.
Consequently, according to Article 79 of the Labour Code of the Republic of Azerbaijan, the employment contract of an employee who is on leave cannot be terminated by the employer, except for the case specified in subparagraph “a” of Article 70.
So, can an employee on leave terminate the employment contract based on their own request?
An employee has the right to terminate the employment contract on their own initiative at any time — including during their period of leave. For this, the employee must submit a written application to the employer.
While Article 70 regulates termination by the employer, termination initiated by the employee is governed by Article 68 of the Labour Code.
According to Article 143 of the Labour Code, when an employee who has unused annual leave days terminates the employment contract on their own will, they are granted the unused leave for the relevant work year(s), and the last day of leave is considered the date of dismissal. Alternatively, the employee may submit a resignation request after they have already gone on leave. In this case, termination is carried out in accordance with Article 69 (rules for termination by the employee).
Summary
• Termination of an employment contract for an employee who is on leave is restricted only in cases where the employer terminates the employment contract (Article 79).
• An employee may apply to terminate the employment contract on their own initiative at any time—regardless of whether they are on leave.
Example 1: The employee is on leave from October 1 to 20. On October 15, they submit an application requesting termination of their employment contract on their own initiative effective from October 20. What happens in this situation?
The employee’s application is valid. Even if the employee is on leave, they may request termination. However, the requirements of Article 69 of the Labour Code must be observed. Under this article, an employee may terminate the employment contract by notifying the employer in writing (on paper or via an electronic information system) at least one calendar month in advance. After one month from the date of application, the employee has the right not to report to work and to request final settlement. The employer is obliged to meet these requirements.
In this example, the employee submitted the application on October 15 and requested termination on October 20, providing only a 5-day notice period, which violates the standard one-month notice rule.
If both the employee and employer agree, the employment contract may be terminated on October 20 under Article 69.3 of the Labour Code.
If the employer accepts the request and agrees to terminate on that date, termination may occur accordingly. Otherwise, the employer may demand compliance with the full one-month notice period.
Being on leave does not prevent an employee from submitting a termination request.
The employee may request termination even while on leave.
Example 2: The employee is on leave from October 1 to 20. On October 5, they submit an application requesting termination effective from October 10. How will the situation be handled?
One-month notice period: When an employee wishes to terminate the employment contract, they must notify the employer in writing at least one calendar month in advance.
Here, the notice period is shorter than required. From October 5 to October 10, there are only 5 days—less than the prescribed one-month notice period.
Conclusion:
Even if the employer accepts the application, termination cannot legally take effect on October 10. It may only become effective one month after the application date—on November 5.
In this case, the employee will remain on leave until October 20 and must return to work from October 20 until November 5, after which the contract will be terminated and the final settlement completed.
• If the employer agrees, according to Article 69.3, the employment contract may be terminated on the date indicated in the application. In this scenario, the employee would be recalled from leave early (October 10), and the employment contract would be terminated on that date, with compensation paid for unused leave days.
Effect on leave:
Being on leave does not affect the notice period—notice must still comply with the one-month requirement.
In general:
• The employee must give at least one month’s written notice to terminate the contract.
• Being on leave does not change this requirement.
• If the employee requests termination on their specified date without waiting one month, this is only possible with the employer’s consent under Article 69.3.
• Otherwise, termination is postponed until the end of the notice period.
Article 69.6 rule on using leave before termination
Under Article 69.6, an employee may apply to take their leave for the relevant work year and request termination effective on the last day of the leave period.
Until the end of the leave period, the employee may withdraw their termination application or declare it invalid by written notice (paper or electronic). In this case, the employer must comply with the request.
Example 3: An employee worked from January 1 to December 31, 2023. They decide to take leave in January 2024 and request termination after the leave ends. They submit their application on January 5, 2024:
“I request to take my leave starting January 5, 2024, under Article 69.6, and to terminate my employment contract on the last day of the leave period—February 5, 2024.”
This application is valid.
Example 4: An employee submitted an application in December 2023 to take leave and terminate the employment contract afterward. However, while on leave in January 2024, they change their mind and submit a new application on January 15, 2024:
“I withdraw my previous application requesting termination of the employment contract submitted in December 2023. As I have changed my decision during my leave, I request that the contract not be terminated and that I continue in my current position.”
In this case, the employment contract cannot be terminated—provided that the employer has not officially informed the employee (in writing or electronically) that a new employee has been hired for that position.
If the contract has already been terminated following the legal procedure, the employee’s withdrawal request has no legal effect.
Key Principles
No new employee hired:
If the employer has not appointed a new employee to the position before terminating the contract, the employee may withdraw their application. In this case, the contract cannot be terminated.
New employee hired and notice provided:
If the employer has already hired a replacement and has officially notified the employee (in writing or electronically), the employee cannot legally withdraw their application. The contract will be terminated as planned.
Conclusion
Article 69.6 of the Labour Code protects the employee’s rights in termination procedures.
However, the exercise of this right depends on specific conditions:
• If no new employee has been hired—or the employee has not been notified of such hiring—the employee may withdraw their application, and the contract will not be terminated.
• Otherwise, even if the employee withdraws the application, the contract will still be terminated.