Open letter to South Africa’s students‚ universities and government‚ represented by Minister in the .
THE primary objective of the Basic Conditions of Employment Act 75 of 1997 (BCEA) is to set out and enforce minimum conditions of employment so as to protect workers from exploitation.
Annual or vacation leave is an entitlement provided for in the BCEA, which an employee must ensure they utilise.
The BCEA sets out the amount of annual leave days an employee is entitled to in a 12 month cycle. Section 20 of the BCEA provides that an employer must grant an employee, who works more than 24 days a month, either:
21 consecutive days paid leave; or
By agreement, one day of paid leave for every 17 days on which the employee worked or was entitled to be paid; or
One hour of paid leave for every 17 hours on which the employee worked or was entitled to be paid.
An employer must grant this annual leave not later than six months after the end of the 12 months cycle.
This annual leave must not be taken in any other period in which the employee is entitled to leave in terms of the BCEA. For example, an employer may not force an employee to take annual leave during maternity leave or during sick leave.
The BCEA prohibits an employer from paying an employee instead of allowing the employee to take annual leave; however, this prohibition does not apply to annual leave granted over and above the mandatory 21 days.
The only instance whereby an employer is permitted, and is in fact obliged to pay an employee in lieu of them taking annual leave, is upon termination of employment.
Upon termination of employment, section 40 of the BCEA provides that an employee must be paid for any accumulated annual leave not taken at the date of termination. Annual leave granted in terms of the BCEA that is not taken can accumulate. The employer may have a policy which makes provision for leave granted over and above the statutory entitlement of 21 days not to accumulate or that the leave will only be allowed to accumulate to a specified maximum of days, where after if it is not taken, will be forfeited.
In Jooste v Kohler Packaging Ltd (2003) 12 BLLR 1251 (LC), it was held that in order for an employer to rely on any such policy, the policy must be well known to the employees and be consistently applied.
In the event that an employer does not grant an employee annual leave that is due to the employee, the employee can refer the matter to the CCMA.
The BCEA provides employees with rights and entitlements; annual leave is one such entitlement. It is the duty of the employee to ensure that they use this entitlement, if this right is denied, the employee must use the mechanisms provided by the law to enforce his/her rights.
l The writer is deputy chairperson of Eversheds