May 31, 2019

LABOUR LAW AND YOUR EMPLOYEES’ ANNUAL LEAVE

Most small businesses do not have dedicate HR departments, so when a member of staff plans a trips or wants a few days off, the leave process is often left to be dealt with by the owner. While leave entitlement and processes should be stipulated in the contract between an employer and employee, here are important things to guide you when implementing leave policies and dealing with leave requests or disputes. 

Entitlement

According to the Basic Conditions of Employment Act, which all employers must subscribe to, annual leave is not applicable to anyone employed for less than 24 hours per month.

In most cases, leave works on an accrual basis. Employees who work five days per week must accrue at least 1.25 days of leave each month, totalling 15 days of annual leave, while employees who work six days per week must accrue at least 1.5 days of leave each month, totalling 18 days of leave. It’s important to note that these must be working days, and public holidays or weekends cannot constitute leave days. 

For temporary employees, contract employees, or fixed-term employees, the easiest way to work out leave is by hours worked instead of by days worked. In this case, at least 1 hour of leave must be granted for every 17 hours worked. This system of accrual is only applicable if both parties agree to it, and this must be stipulated in a contract between the employee and the employer.

Cycles

Leave cycles refer to a 12-month period in which the employee has worked for the employer. 

Accrued annual leave is carried over into the next cycle, unless a contract stipulates otherwise. If leave is carried over into a new cycle, those days are available to the employee for the first six months of the new cycle.

Public holidays during leave

If a public holiday falls on an ordinary working day during a period for which an employee has applied for leave, they are entitled to an additional day’s leave.  

Additionally, if an employee falls ill while on leave and obtains a doctor’s note indicating that, had they been at work, they would not have been able to perform their duties, they can claim that as sick leave, and be granted additional leave.

Approval

Employees and employers should agree on when annual leave is taken, but if there is a dispute or conflict, the employer reserves the right to stipulate time that best suits the business. 

Notice

Employees cannot take annual leave during their notice period, and employers cannot force them to take leave during this period.

Shutdowns

If the business shuts down, which often happens over the Decembers, the days that the business are closed are debited from employees’ annual leave.

Unpaid leave

Employees are not automatically entitled to take unpaid leave. They still need to apply for these days and agree on timing with their employer. If the employee has not accrued sufficient annual leave days, the employer may grant them the leave and debit the days negatively, or require (or allow) these days to be unpaid. 

Study leave

Unless stipulated in a contract, employees are not entitled to paid study leave. These days are debited from annual leave.

Exchange for cash

Employees cannot exchange their accrued leave for cash, unless they have leave days available to them when their contract is terminated. 

Leave disputes are often best worked out between the business owner or manager and the employee involved. However, if you cannot resolve a dispute, contact our office on 011 347 0300 or info@lawmen.co.zato make an appointment with one of our labour law specialists. 

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