Answer:
Pursuant to the Labour Code, the time of unpaid leave that obtains the Employer’s consent and accumulates for no more than one month will be considered the working time of the Employee to calculate his or her annual leave[1]. Accordingly, in respect to the unpaid leave, the Employer agrees to grant the Employee leave upon his or her prior request, but to accrue that leave period in the working time to calculate the Employee’s annual leave. Therefore, when calculating the number of annual days off for the Employee, the Employer must add the time of unpaid leave to the actual working time of the Employee.
In addition, it should be noted that the calculation of the number of annual leave days for an insufficient working year is as follows: annual leave days plus additional leave days based on seniority (if any) and then divided by 12 months, multiplied by the number of actual working months in order to get the entitled number of annual leave days of the Employee; the calculation results should be rounded, if the decimal part is 0.5 or above, then it should be rounded up to 01 unit[2].
Thus, where the Employee retrenches his or her job, in addition to other payables in accordance with the Labour Code, the Employer is required to pay salary for the Employes’ untaken annual leave days[3]. The annual leave days will be calculated on the actual working time plus the unpaid leave time agreed upon between the Employer and the Employee, which must not exceed one accumulative month.
[1] Article 65.4 of the Decree No. 145/2020/ND-CP of the Government on 14/12/2020.
[2] Article 66.1 of the Decree No. 145/2020/ND-CP of the Government on 14/12/2020.
[3] Article 113.3 of the Labour Code
