Our enquiry this week comes from a reader who works for a company that has recently come under new management.
The company has always had a policy whereby staff may not accumulate more than thirty days of annual leave.
Some months ago, our reader verbally applied for leave with the area manager and was told that it could not be authorised. She enquired about the reasons and was informed that there was no one to assume her duties while she was away.
Our reader then asked whether they would pay her out for the leave days, but was told this was impossible.
She advised management that she would take the matter to her union for further assistance. She was then informed that if she could prove that she had applied for her leave in writing and was denied in writing, she would be granted the time off, but, if not, she would have to forfeit it.
As she has no record of her application or of the area manager’s response, she feels very hard done by.
She says she has been with the company for many years and has always been treated fairly and wants to know whether the new management’s actions are legal.
The Basic Conditions of Employment Act (BCEA) states that, with the exception of those who work fewer than 24 hours per week, employees, irrespective of their status or remuneration, are entitled to leave of at least 21 consecutive days per annual leave cycle.
At most companies, employees have to apply for leave in writing on a proper leave form (some businesses even make use of an electronic system).
On this form, the employee will state whether he/she is taking annual, sick or study leave and the relevant dates on which the leave is required. This will be handed in to a direct manager or relevant department for approval.
It is advisable to keep a copy for record purposes. Verbal leave requests, as in our reader’s case, are not advisable as it leaves no “paper trail”.
The employer and worker must agree on the timing of the leave. If they are unable to, it is up to the employer to make the final decision.
Leave must be granted no later than six months after the end of the annual leave cycle and employers may not pay workers instead of granting leave, except on termination of employment – clearly the reason why our reader was denied her request to be paid out.
Annual leave may not be taken during a period of sick leave or while an employee is on notice of termination of service. An employer may also not permit an employee to work while one leave.
Employees may, by agreement, receive pay for their leave before it commences or on normal pay days.
Annual leave not taken during a particular cycle may be claimed during subsequent cycles, provided that the contract of employment does not contain a forfeiture clause.
Send your labour and injury on duty questions to firstname.lastname@example.org.
Booysen & Rossouw Attorneys in Port Elizabeth specialises in labour related legislation. The firm also covers injury on duty cases as well as all other aspects of the law.
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