Know your rights when it comes to leave

Bradley Workman-Davies

Bradley Workman-Davies

In terms of the Basic Conditions of Employment Act, all employees are entitled to a minimum number of leave days per year.

This minimum leave entitlement is 21 consecutive leave days per yearly leave cycle, which is in effect 15 working days' leave yearly.

The act provides for additional entitlements to leave, such as sick leave, family responsibility leave and maternity leave for female employees.

All of the entitlements to these types of leave are the minimum that must be given to employees.

These minimums can also be set in terms of collective agreements entered into by bargaining councils, or sectoral determinations promulgated for particular industries.

Workplace practice often means that employers provide their employees with additional leave entitlements in any or all of these leave categories.

The act provides in section 18 that employers may not require any employee to work on a public holiday, unless the employee agrees.

If an employee is requested to work on a public holiday, and the employee refuses then the employer cannot force the employee to do so.

But the act is not clear on whether a specific agreement is required for each request to work on a public holiday. If an employee has a general agreement to work on public holidays in his/her contract of employment and is requested to do so, then this agreement may be sufficient for compliance with the requirements of section 18 of the act . The employee can be disciplined for failure to obey a lawful instruction, if he/she fails to work on the public holiday when requested to do so.

The act provides that any employee who agrees to work on a public holiday, which is that employee's normal day of work, must be paid double his/her normal wage for the day, or his/her normal rate of pay for the day plus the amount earned for work on the public holiday, if this is greater (section 18(2)).

If the public holiday is not the employee's normal day of work, and the employee agrees to work on such a day, the employee must be paid his normal rate of pay for the day plus the amount earned for work on the public holiday.

Any employee who does not work on the public holiday must be paid his normal wage for that day (section 18(3)).

If the employee does not ordinarily work on the public holiday and does not in fact work on such day, no adjustment needs to be made.

The question that sometimes arises is if a day is a public holiday or not.

This difficulty stems from the wording of the Public Holidays Act, which provides that the public holidays mentioned in schedule one of the act are public holidays, and whenever any public holiday falls on a Sunday, the following Monday is a public holiday.

This wording has led some employees to claim that if a public holiday falls on a Sunday, then the Sunday remains a public holiday and the Monday becomes an additional public holiday.

If this is the case, the employee cannot be made to work on either the Sunday or Monday, without his/her agreement. If the employee works, then he/she must be paid in accordance with the Basic Conditions of Employment Act, sectoral determination or collective agreement.

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