What the labour law say about an employee’s leave
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The structure and taking of leave have always been hotly debated. Over the past 16 months of the pandemic, the issue became confusing.
Initially, the minister of employment and labour said employers could not place employees on leave while businesses were ordered to be shut down during the lockdowns. The advice was wrong.
The state of emergency, which has been ongoing, did not suspend our labour laws. Leave is governed by the Basic Conditions of Employment Act, Act No 75 of 1997 as amended. Chapter 3, Sections 19 to 27 of the BCEA are applicable and have been applicable throughout the pandemic.
Although we have discussed leave in a previous column, it does bear repeating.
In essence, an employer has the right to structure the leave of all the employees in accordance with the business’s operational requirements. Unless there is a specific agreement in writing between employer and employee, management has the right to demand that employees take leave when it suits it.
Fortunately, most employers are willing to discuss leave requirements with their employees, so as to ensure both parties are reasonably satisfied.
During the pandemic, when businesses were shut by government decree, it was more functional for employers to demand that the leave requirements be fulfilled while no business could take place. It would make no sense to have someone take their leave once the government had opened the employer.
It also became clear early in the pandemic that there would be a situation of no work therefore no pay. It made sense for the employees to at least get their leave pay while unable to perform their duties.
Unfortunately, once the leave requirements had been fulfilled and all leave had been taken and paid out, many employees found themselves sitting without work and no pay. Ostensibly, the Department of Employment and Labour did step in to offer the emergency fund payments (Ters) for those who were not earning.
History tells us the Department of Employment and Labour was predictably ill equipped to handle the claims and bungled the payments for more than a year. Even now that the Ters payments have been extended, employers and employees are suffering the results of an incompetent department. The uphill battle to get the payments has been ongoing but, fortunately, eventually most claims are going through. I have some outstanding claims for individuals since March last year. For many of those cases, it’s going to be a long road ahead.
Leave does not apply to an employee who works less than 24 hours a month for that employer.
Annual leave is calculated in a leave cycle of 12 months, starting from the employee’s first date of employment.
The structure would be put into place by the employer and would be renewed annually for each employee as it would differ from one employee to the next. The employee would then accrue a further period of leave for the next 12-month cycle.
The employer has to grant at least 21 consecutive days’ annual leave on full remuneration in respect of each annual leave cycle. It needs to be borne in mind that if the employee works a five-day week, then the employee would be entitled to 15 paid leave days for that annual cycle. The easy calculation would be to look at how many days an employee works a week and multiply that by three.
I regularly get employees bemoaning the fact that they received less than 21 days a year. The calculation can be broken down to one day annual leave on full remuneration for every 17 days worked or one hour of annual leave on full remuneration for every 17 hours worked. If the employee has not taken the annual leave during that cycle, then leave must be taken within the first six months of the next cycle. If the leave is not taken, it will be forfeited and not paid.
It must be remembered and understood than an employee cannot cash in their leave in exchange for not taking leave. Leave is specifically given as a health feature build into the BCEA.
It has become common practice in South Africa for employees to “cash in their leave”. This is condoned by employers who would rather pay out leave but keep the employee working.
* Michael Bagraim is a labour lawyer. He can be contacted at [email protected]
** The views expressed here are not necessarily those of Independent Media.
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