Computation of paid leave due to the death of a relative

AN indicates that if the death of the relative occurs when the worker has already started the workday or has completed it, the calculation of the permit must start from the next day although the collective agreement sets the right to the permit since the event occurs causative.

The collective agreement of “contact center” regulates in its art.28 the paid permits. Among others, it includes the right of workers to “absent themselves from work, with the right to retribution, and from the time the causal event occurs, for any of the reasons and for the following time:

(…)

d) four calendar days in case of the death of a spouse, father, mother, political parents, political mothers, sons, daughters, brothers and sisters.

e) two calendar days in the event of the death of a relative up to the second degree of consanguinity or affinity “.

The company is computing, as the first day of the permit, the causal event, which means that workers enjoy one day less leave when the death occurs during the workday or once it is over. For this reason, the trade union representation submits a collective dispute request requesting the workers’ right to be counted as the first working day of paid leave the following day of the causal event when the workers have completed their work day completely or have started or are developing their daily work.

The AN estimates the demand according to the following considerations:

a) The purpose of paid leave is that workers attend to the state of need caused by the death of people from their closest emotional environment. Said purpose would not be reached if the day of the causal event is subtracted when the death occurs during the working day and, with more reason, if the death occurs after the end of the day.

b) Although it is true that the collective agreement activates the right “since the causal event occurs”, it does not establish the form of computation. Therefore, in accordance with the provisions of CC art.5.1, the day from which the computation begins must be excluded; in the case analyzed, that of the causative event.

c) The interpretation maintained by the company makes the worse condition, before the same state of necessity, the workers who are the cause of the work during work or once completed with respect to the others, since they enjoy of less days of leave for the same reasons.

Therefore, the AN estimates the demand and declares the right of workers to compute as the first day of paid leave the following day that the causal event occurs when the workers have started or finished the workday.

SAN Sala de lo Social of May 23, 2019. EDJ 2019/598681