All you need to know regarding Annual leave.
The Basic Conditions of Employment Act (BCEA) Section 19 onwards in Chapter 3 covers employee’s rights with respect to all types of leave. The provisions regarding all types of leave do not apply to employees who work less than 24 hours per month.
Employees are entitled to 15 workings days per annum on full pay.
The Act states “21 consecutive days” (section 20 (2)(a) of the Act) and reference to a calendar will show that 21 consecutive days is 15 working days based on a 5 day week, or 18 working days based on a 6 day week. Employees who work a 6 day week qualify for 18 working days’ annual leave, which still equates to 21 consecutive days.
- (1) Annual leave cycle in terms of the BCEA means period of 12 months’ employment with the same employer immediately following:
- An employee’s commencement of employment or;
- The completion of that employee’s prior leave cycle.
As with much of our labour legislation, the drafters of the legislation did not simply leave it at that, but decided to make it as complex as they can by adding various additional clauses to this – these are covered in section 20 and section 21 of the BCEA. From an employer perspective the most important are:
20 (4) the employee must take leave no later than 6 months after the end of the leave cycle in terms of subsection (2).
20 (5) (b) an employer may not permit an employee to take annual leave during any period of notice of termination of employment.
20 (11) an employer may not pay an employee instead of granting paid leave in terms of this section except –
- On termination of employment and
- In accordance with section 40 (b) and (c)
- (1) an employer must pay an employee leave pay at least equivalent to the remuneration that the employee would have received for working for a period equal to the period of annual leave calculated –
- At the employee’s rate of remuneration immediately before the beginning of the period of annual leave; and
- In accordance with section 35.
(2) an employer must pay an employee leave pay –
- before the beginning of the period of leave; or
- by agreement, on the employee’s normal pay day.
It is critical that if the Company does have a policy of “no leave” during a specific period, due to operational requirements, that this is made clear to the employee when he is interviewed for his job.
Accrual or accumulation of annual leave
The BCEA section 20 (4) stipulates that annual leave must be taken within 6 months of the end of the cycle in which it accrues – so if an employee submits a request to take annual leave due to him upon expiry of the 6 months after the leave became due then the employer may not refuse to grant the request of leave.
Therefore all employers should have in place an annual leave policy, which regulates the accumulation of annual leave, placing limits on the amount of annual leave that may be accumulate and stipulating when the annual leave may/must be taken ( having regard to annual shutdown etc.)
Employers should note also that cannot impose a “use it or lose it” policy on employees.
Nowhere does the Act state that employees must take the leave within the stipulated period or after expiry of a certain time period and nowhere does the Act state that if employees do not take annual leave within certain periods, then the employee shall forfeit that leave.
Annual leave can be taken at any time provided it is first agreed with the employer. This means that the employer has the right to refuse any application for leave if it is not suitable at that time for the employee to take leave.
Payment instead of granting leave
You may not pay your employee in lieu of him taking annual leave (section 20 (11) of the BCEA. This does not apply when the employment contract has been terminated. Annual leave must be paid out regardless of the reason for termination.
Employees must be paid when they go on annual leave – this is often done before the employee goes on leave, however, your policy can also dictate when the employee will be paid leave pay and this may be on the normal date which he would get paid.
Is he entitled to take annual leave during his notice period?
No, you would not be in breach of the BCEA if you deny his request (Section 20 (5) of the BCEA). You cannot allow your employee to take annual leave during any period of notice of termination. You would be in breach of the BCEA if you allowed him to take annual leave. However, there’s nothing that stops you from allowing him to take unpaid leave during the notice period.
An employee of yours takes annual leave and a public holiday falls during that period, but it happens to be on a Saturday. Does the employee qualify for an extra day’s leave?
No- unless the employee usually worked on a Saturday. Employees who are at work during that period also do not get the holiday – in terms of being a paid holiday, it will only be applicable to employees who usually work on a Saturday. If a public holiday falls on a Sunday, the Monday following the Sunday automatically is declared to be a public holiday.
The accrual of annual leave is dependent upon a period of employment of 12 months with the same employer – It is not dependent on whether the employee actually attended the workplace or not. When an employee is on maternity leave, the employment contract is not changed in any way at all – the employee is merely exercising her legal entitlement to four months unpaid leave (whether the employer pays a salary for the duration of, or for part of, the maternity leave is of no consequence).
Thus the employment conditions and the requirement to fulfil a twelve-month leave cycle remain unchanged – although on unpaid leave, the employee is still employed by the employer and the 12 month leave cycle is not broken. The only thing the employee is not doing is actually physically attending the place of work. Therefore the annual leave continues to accrue during the period of maternity leave.