As the festive season fast approaches it is important that employers are fully informed of all issues relating to annual leave. Issues surrounding annual leave tend to become more common during this time.
The conclusion of an employment contract creates reciprocal rights and obligations between employer and employee and the parties to an employment contract have some discretion to agree on the terms and conditions of employment they are prepared to accept, subject to the limits of the law and what is reasonable.
The Basic Conditions of Employment Act 75 of (1997) regulates hours of work, leave, payment of remuneration, and termination of employment as well as providing methods of enforcing its provisions. For the purpose of this article, the provisions of annual leave do not apply to employees who work less than 24 hours a month for an employer.
In terms of the Act, an employee is entitled to leave of 21 consecutive days or 1.25 days per month. The total permitted minimum leave days is 15 working days per annum on full pay in each annual leave cycle or in each period of 12 months calculated from the date of employment. An employee who works a 6 day week will also be entitled to 21 consecutive days which will mean that he/she will receive 18 working days on full pay, and these 18 days will be the equivalent of 21 consecutive days.
The Act does not specify when an employee may take these days, and it is advised that these arrangements are made with the employer and in accordance with the Company Policy. An employer must grant annual leave not later than six months after the end of the annual leave cycle.
Our members are encouraged to ensure they have a proper company annual leave policy in place. If an employer has an annual shutdown period, the employee should be aware that he/she should have sufficient leave days to his/her credit to cover the full annual shutdown period, failing which, the number of days short shall be treated as unpaid leave.
The following is also relevant regarding Company Policies regulating annual leave:
- The employer may not introduce a “use it or lose it” policy as the Act provides for the legal entitlement of annual leave;
- The employer is entitled to consider requests for annual leave and grant the same at its own discretion. The employer’s discretion must be exercised reasonably given the circumstances the company may find itself in.
- Upon termination of the employment relationship, the employee is entitled to be paid for any leave due but not taken.
A common issue that employers have had to deal with is when their employee’s do not report for work on the return date specified. Employees may fail to return to work on the day that they are due back after their annual leave. This is a breach of the employee’s duty to remain in service as per the employment contract. If an employee is unable to return to work after a period of annual leave, the employee can reasonably be required to inform the employer of his/her whereabouts and the reason for the absence from work. This requirement is often not fulfilled, and the employer is required to investigate the employee’s absence from work and the reason for the absence.
An employee’s failure to return to work following annual leave does not necessarily warrant dismissal. The reason for the employee’s absence should be established first. Once this has been done, the employer can determine the action to be taken.
One must draw a distinction between absenteeism, abscondment and desertion. Absenteeism relates to a short period of unauthorised absence from work. Abscondment is unauthorised absence from work for an unreasonably long period of time. Desertion involves an employee who has left the employer’s employment or failed to return to work with a clear intention of not returning to work at all. The intention of not returning to work must be apparent from the employee’s actions. If the employee has an intention of returning to work, then he/she will not have deserted but rather simply have been absent from work or absconded, depending on the duration of the absence.
In every instance of an employee failing to return to work following annual leave, the employer should investigate the matter before taking any action, as this will determine what process is to be followed by the employer. The employee should also be afforded a hearing so as to ensure procedural fairness.
Article by: Gordon Flanagan
Dispute Resolution Official – East London