As per Section 20 of the Basic Conditions of Employment Act (BCEA), an employer should grant an employee at least twenty-one (21) consecutive days annual leave on full remuneration in respect of each annual leave cycle.
The BCEA states that the provisions for annual leave do not apply to an employee who works less than twenty-four (24) hours per month for an employer, and these provisions do not apply to leave granted to an employee in excess of the entitlement allowed in terms of the BCEA.
An annual leave cycle is a period of twelve (12) months with the same employer, calculated from the employee’s commencement of employment or from the completion of that employee’s previous leave cycle.
The entitlement is twenty-one (21) consecutive days of annual leave on full remuneration for each annual leave cycle. If an employee works a five-day week, this equals fifteen (15) working days, or if the employee works a six-day week, it equals eighteen (18) working days.
Whatever the number of standard working days that fall within that, twenty-one (21) consecutive days are the number of working days for which the employee must be paid.
Should a public holiday fall during a period whilst an employee is on annual leave, and the public holiday falls on the day on which the employee would ordinarily work, then the employee is entitled to an extra day annual leave for each such public holiday.
Annual leave is accrued – meaning that the number of days to which the employee is entitled starts at zero and increases with time as the leave cycle progresses.
There are two methods of calculating the annual leave accrual as the leave cycle progresses.
The employer and employee may agree to one day of annual leave for every seventeen (17) days worked by the employee or an hour leave for every seventeen (17) hours the employee worked. This method of calculation is useful when dealing with temporary employees or those working on a fixed-term contract.
If there is no other agreement with the employee, then the accrual is allowed at 1,25 days per month in the case of a five-day week worker, or 1,5 days per month for a six-day week worker and so on. No employee agreement is required to apply this method of accrual.
The employee and the employer must agree on when annual leave can be taken, and if there is no agreement, annual leave is taken at the time that suits the employer.
The employer’s annual official absence from work policy may vary from one company to another. At times, the employer is entitled to dictate the timing of accrued off days, depending on their business schedules.
Many employers have a shutdown period over December. If this is the case, the employer is entitled to stipulate that annual leave must be taken to coincide with the shutdown period. Should an employee utilise his annual leave at another time during the year, the shutdown period will be treated as unpaid leave.
An employee must be paid in full during leave. Leave pay should be paid before the leave starts or on an employee’s normal payday. If an employee leaves the employer’s employ, he/she must be paid for any leave accrued but not taken at a rate of one day’s pay for every seventeen (17) days worked.
The only circumstances under which the employer may pay the employee for annual leave due is upon the termination of the employment contract for any reason or upon the death or retirement of the employee.
Should the annual leave be carried over from one cycle to the next, and the employee has still not taken his annual leave from the previous cycle within six months of the new cycle, then the employee can demand to take that annual leave of the prior cycle, and the employer may not refuse such permission.
It is thus imperative that employers follow the provisions of Section 20 of the BCEA and that employees are granted their annual leave in terms of these provisions.
Article by: Arlene Jacobs
Dispute Resolution Official – Bloemfontein