An employer is entitled to recover an overpayment of a leave allowance received by the employee.
In order to do so, the employer may claim reimbursement of the allowance in question from the employee. If the employee refuses, the employer may bring legal proceedings to enforce his rights.
However, an employer may not proceed on his own initiative to deduct from the employee’s wages an amount which corresponds to a leave allowance overpaid to the employee, with a view to setting off that allowance against his claim.
Nota Bene
Any deduction from wages made in circumstances where it is not provided for by law is illegal.
An employer may retain amounts from the wages of his employee only in the cases exhaustively listed by law.
Even if the employee and the employer can envisage, in a written agreement, the possibility of a set-off between the employee’s wages and a possible claim of the employer, that agreement will be valid only to the extent to which the employer’s claim corresponds to a specific case provided for by law. In fact, an employee cannot give his consent in advance for a deduction from his wages for cases not provided for by law.
Consequently, since such a specific case is not envisaged by law, the employer, if he has granted his employee paid leave of a duration exceeding the leave to which he was entitled, may require his employee to repay the wages paid in excess, but may not however make a deduction from the employee’s wages.
Nota Bene
If the employer were nevertheless to deduct a sum from his employee’s wages in a case not provided for by law, the employee could then bring legal proceedings and claim payment of the amount unlawfully deducted. The employer will in such a case be ordered to repay that amount to the employee.
However, in a legal action brought by the employee, the employer could claim reimbursement of the overpaid salary and the employee will then also be ordered to reimburse to the employer the amount corresponding to the allowance for leave taken in excess.