Annual leave remains one of the most frequently misunderstood areas of South African employment law. While most employers are aware that employees are entitled to paid annual leave, disputes often arise around how leave accrues, how shutdown periods are handled, and whether leave pay is always owed when employment ends.
The Basic Conditions of Employment Act 75 of 1997 (BCEA) provides clear answers — but only if Sections 20 and 40 are read together.
Annual Leave Entitlement: The Starting Point
In terms of Section 20 of the BCEA, an employer must grant an employee at least 21 consecutive days of annual leave on full remuneration for each annual leave cycle.
An annual leave cycle consists of 12 months of continuous employment with the same employer, calculated from:
- The employee’s commencement date, or
- The completion of the previous leave cycle.
This entitlement translates into:
- 15 working days for employees who work a five-day week, or
- 18 working days for employees who work a six-day week.
The statutory leave provisions do not apply to:
- Employees who work fewer than 24 hours per month, or
- Leave granted in excess of BCEA minimum entitlements (i.e. contractual leave above the statutory floor).
Public Holidays During Leave
If a public holiday falls during an employee’s annual leave and that holiday falls on a day the employee would ordinarily have worked, the employee is entitled to an additional day of annual leave. Public holidays may not be counted as annual leave days.
How Annual Leave Accrues
Annual leave does not vest upfront. It accrues progressively throughout the leave cycle, starting at zero and increasing over time.
There are two recognised methods of accrual:
- Accrual by Agreement
Where agreed between employer and employee:
- 1 day of leave for every 17 days worked, or
- 1 hour of leave for every 17 hours worked.
- Automatic Accrual (No Agreement Required)
In the absence of any agreement:
- 1.25 days per month for five-day workers.
- 1.5 days per month for six-day workers.
- Proportionally adjusted for other working arrangements.
Employers may apply this method unilaterally; no employee consent is required.
Shutdown Periods and Forced Leave
Many employers implement shutdowns, particularly in December. The BCEA permits employers to require employees to take annual leave during a shutdown period.
Where an employee has already exhausted their annual leave entitlement:
- The shutdown period may lawfully be treated as unpaid leave.
Clear advance communication is critical to avoid disputes.
Carry-Over Leave and Employer Obligations
If annual leave carries over into a new leave cycle and is not taken within six months of the new cycle commencing:
- The employee is entitled to demand that the leave be taken, and
- The employer may not refuse such a request.
Employers should actively monitor leave balances to prevent excessive accumulation.
Leave Pay During Employment
Employees must be paid in full while on annual leave. Leave pay must be paid:
- Before the leave starts, or
- On the employee’s normal payday.
Leave Pay on Termination: The Often-Missed Rule
Employers frequently assume that accrued leave must always be paid out on termination. This is not always correct.
While Section 20 regulates leave entitlement, Section 40 of the BCEA governs payments on termination.
The Four-Month Rule
In terms of Section 40(c):
- An employee is entitled to payment for accrued annual leave only if they have been employed for more than four months.
- Where this threshold is met, payment is calculated at one day’s remuneration for every 17 days worked.
If employment ends before four months of service, the employee:
- Is not entitled to payment for accrued leave, even if leave has technically accrued.
When May Leave Be Paid in Cash?
Payment in lieu of annual leave is strictly prohibited during employment. It is permitted only:
- Upon termination of employment (for any reason), or
- On death or retirement.
Key Takeaway
Annual leave compliance requires more than simply granting time off. Employers must understand:
- How leave accrues,
- How shutdowns interact with leave balances, and
- When leave pay is legally owed on termination.
A failure to distinguish between entitlement (Section 20) and payment on termination (Section 40) is a common and costly mistake.
Proper leave management protects both the business and the employment relationship, and ensures that statutory obligations are met without overpayment or underpayment.
Article by Keanu Ward
Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)