By determining the vacation period in accordance with. § 7 para. 1 BUrlG, the employer, as debtor of the vacation entitlement, has done what is necessary. If it is subsequently impossible to obtain an exemption, the exemption claim specified by the employer in accordance with Section 243 Para. 2, § 275 para. 1 BGB below.
According to a ruling by the Ninth Senate of December 16, 2008 ( 9 AZR 164/08 ), a company agreement on short-time work that reduces working hours to zero exempts the employee from his work obligation even if the employer for the period before the introduction of short-time work who granted short-time work vacation. In this case, the achievement intended by the determination of the vacation, namely the exemption of the employee from the obligation to work for the duration of the vacation, cannot occur because the obligation to work was lifted due to the works constitution norm.
If the employer introduces short-time work for operational reasons, he is responsible for the impossibility that subsequently arose as a result and is therefore obliged to grant substitute leave as compensation for damages in accordance with Sections 280 and 283 of the German Civil Code (BGB). According to the decision of the European Court of Justice in the SchultzHoff case of January 20, 2009, Art. 7 para. 2 of Directive 2003/88/EC contradicts national legislation under which no ‘financial remuneration’ is paid at the end of the employment relationship to workers who are unable to take annual leave due to illness. The Ninth Senate abandoned its previous case law with its ruling of March 24, 2009 ( 9 AZR 983/07 ).
After that, Section 7 Para. 3 and 4 BUrlG should be interpreted in such a way that the entitlement to vacation compensation expires if the vacation entitlement could not be fulfilled by the end of the transfer period due to the employee’s inability to work due to illness. § 7 para. 3 and 4 BUrlG in relation to private employers must be continued in accordance with Community law in accordance with the requirements of Article 7 of Directive 2003/88/EC. Claims to compensation for statutory part or full vacation do not expire if the employee falls ill and is therefore unable to work until the end of the vacation year and/or the transfer period. In any case, since the Düsseldorf Regional Labor Court’s request for a preliminary ruling from August 2, 2006 in the SchultzHoff matter became known, there has been no trust worth protecting in the continued existence of the previous Senate jurisprudence. The submission to the ECJ is a turning point in legal developments. The parties to the individual employment contract can freely regulate holiday and holiday compensation claims that go beyond the minimum annual holiday entitlement.
According to established case law, a declaration of exemption from the employer is required in order to fulfill the vacation entitlement. With its decision of May 19, 2009 (9 AZR 433/08), the Ninth Senate confirmed its previous case law, according to which the employer only fulfills the employee’s vacation entitlement if he finally releases the employee from the obligation to work and not subject to revocation . Only then is it possible for the employee to freely and independently use the free time to which he is entitled based on his vacation entitlement.
On the other hand, the employer also fulfills a claim to compensatory free time resulting from a working time account by revocably releasing the employee from his obligation to perform the work. In contrast to the vacation entitlement, the granting of compensatory time off to reduce a time balance that exists in favor of the employee is usually only an instruction on the distribution of working hours in the sense of. § 106 sentence 1 GewO. When exercising his right to issue instructions, the employer must, however, comply with the limits of his reasonable discretion in accordance with Section 315 Paragraph. Comply with 3 BGB.