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Vacation Leave by Agreement
The right of employees to vacation leave is one of the foremost entitlements in employment law, not just nationally, but also at EU level. The Court of Justice of the European Union has had ample opportunity to comment on this right’s importance in the context of the EU Organisation of Working Time Directive (2003/88/EC). In its judgements, the CJEU described the right of every worker to paid annual leave as ‘a particularly important principle of EU social law from which there may be no derogations’. So much so, the CJEU added, that said right is expressly laid down in Article 31(2) of the Charter of Fundamental Rights of the European Union, entitling every worker to an annual period of paid leave.
As idealistic as these legal principles may sound, they also beg the question as to the extent to which they are respected in practice. In Maltese law, notwithstanding the purported inability to derogate from the right to vacation leave, Article 3 of the Annual Leave National Standard Order provides that annual leave is to be availed of on days agreed upon between the employer and employee. Article 4 adds that once annual leave has been agreed, it cannot be cancelled unilaterally, such cancellation requiring the agreement of both parties.
Notwithstanding this seemingly balanced compromise in the law, it is a common drafting practice to stipulate, in employment contracts, that vacation leave shall only be availed of in accordance with the employer’s needs. In such cases, therefore, the employee’s right to avail himself of vacation leave is entirely at the mercy of his employer – a far cry from the CJEU’s description of this right as one from which there may be no derogations.
This clash between principles came to the fore in one recent decision of the Maltese Industrial Tribunal, in the names Igors Malasenoks vs Audio Visual Centre Limited, dated the 16th January 2026.
Facts of the Case and the Parties’ Arguments
In the aforementioned dispute before the Industrial Tribunal, the plaintiff, a former ‘delivery person’ employed with the defendant company, alleged that his dismissal from his place of work was unlawful. The employer countered that it had good and sufficient reason for dismissing the plaintiff, namely due to his insubordination at his place of work.
One of such cases of alleged insubordination related to the employee’s exercise of his right to vacation leave. The employee had applied for three days of vacation leave, during a peak period of work where the employer does not typically grant such requests. To appease the employee, the employer had approved two out of the three requested days, meaning that on the third day, the employee was required to report to work. The justification given by the employer for this refusal was that the employee was needed to assist with the unloading of a container expected to be cleared on that day.
Notwithstanding this refusal, the employee informed the employer that he would still not be attending to work on that day for which vacation leave was denied. The employee explained that on that day, his 78-year-old mother was visiting him from abroad, and it would not be reasonable for him to be expected to leave her in Malta on her own. According to the employee, therefore, his refusal to abide by his employer’s instruction was justified. He also explained that unloading containers was a task he was never instructed to do, given that this did not form part of his job description. Thus, the employer’s justification for refusing his application for vacation leave was also invalid.
The Tribunal’s Findings
The Tribunal held it to be an accepted practice that annual leave is always approved and subject to the needs of the employer, especially when it comes to needs which are unforeseen. It was in adherence to this accepted practice, therefore, that contracts of employment are drafted in terms that vacation leave is to be availed of according to the needs of the employer.
The Tribunal commented that while it was true that the employee’s job was not to unload containers, the determination of the dates when the employee’s right to leave is to be exercised is a prerogative of the employer, not of the employee. The Tribunal concluded therefore that the employee could not stubbornly insist on not reporting to work on the day on which his leave request was refused, no matter what the reason for his insistence was. The Tribunal understood that, for that day, the employee’s mother was more important to him than his job. However, this did not exonerate him from his failure to abide by his employer’s instructions.
Even if it had to be argued that unloading containers was not part of his job duties, that did not justify the employee’s failure to report to work. The appropriate mode of conduct in that case would have been to report to work and refuse to carry out the duties that were not in line with his job description.
From the employer’s perspective, an important point which the Tribunal made was that the employer is obliged to take proactive disciplinary action in the case of leave-related insubordination. The employer is to clearly communicate to the employee the eventual consequences of his actions. Thus, in that case, the Tribunal held that when faced with the information from the employee that he would not be reporting to work, the employer was bound to inform him that should he do so, his actions would be tantamount to gross misconduct which would lead to dismissal.
The Tribunal found comfort in making its observations about the exercise of vacation leave by referring to a previous judgement of the Court of Appeal, dated the 28th May 2016, in the names Chris Dimech Debono vs GlobeGround Malta Limited. In that case, the employee was issued with a warning when he failed to abide by a request to report to work while on leave, which request was made to him due to unforeseen urgent reasons. The Court on appeal found that this warning was validly given, confirming the principle that the exercise of the right to vacation leave is contingent on the needs of the employer. The Court went as far as saying that the employer was highly tolerant by limiting itself to a mere warning in those circumstances.
Conclusion
The Tribunal found that the employee’s shortcomings, foremost among which was his insubordination in leave utilisation, gave his employer good and sufficient cause for his dismissal. This decision therefore illustrates the point that while employees are entitled to vacation leave, that right must be exercised in cohesion with the needs of the business. Maltese law attempts to reflect this equilibrium, requiring the two parties to an employment relationship to agree on the dates on which vacation leave is to be availed of. The Tribunal’s decision caters for situations where that agreement is not reached, clarifying that in such cases, the employee would still be obliged to report to work, and his failure to do so would render him susceptible to justifiable disciplinary action.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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