Types of Leave: Explanatory notes

There seems to be much confusion regarding various aspects of annual leave.

The following are the ground rules – as per section 20 of the Basic Conditions of Employment Act. Except where indicated otherwise, every employer must follow these ground rules unless a Main Agreement or Collective Agreement contains different conditions.

• the employee is entitled to 21 consecutive days annual leave on full pay in every leave cycle. 
• a "leave cycle" means a period of 12 months commencing from the first day of employment or commencing from the end of the previous leave cycle. 
• whatever number of normal working days falls within that 21 consecutive days is the number of working days that the employee must be paid for. 
• annual leave is accrued – meaning that the number of days to which the employee is entitled starts at zero and increases with the passage of time as the leave cycle progresses. 
• therefore, at the start of the leave cycle the employee would have zero days leave due to him/her. 
• on the 17th day of the leave cycle, the employee would have accrued 1 day annual leave. (section 20 (2) (b)) 
• on the passage of every 17 days after that, another 1 day annual leave accrues to the employee's benefit. 
• the accrual may also be allowed at 1,25 days per month in the case of a 5-day week worker, or 1,5 days per month for a 6-day week worker and so on. 
• annual leave can only be taken by agreement between employer and employee.
• section 20 (10) (a)) 
• in the absence of any other agreement, annual leave must be taken at a time to suit the employer.  (section 20 (10) (b)) 
• annual leave may not be taken during any other period of leave that the employee is entitled to in terms of this Act. 

The employee's excess sick leave requirement must be taken as unpaid leave.   

Similarly, if an employee is on annual leave and he/she falls sick, visits a doctor and obtains a medical certificate to certify that from xxx date to xxx date the employee was medically unfit for work, then upon return from annual leave, and upon production of the above mentioned valid medical certificate, the employee is entitled to convert those sick days from annual leave to sick leave, and his annual leave entitlement must be credited accordingly. 

It is important to note that in such cases, the medical certificate must stipulate that the employee was unfit for work from (date) and will be fit to resume work on (date) 

If the medical certificate does not so stipulate, it means that although the employee was ill, he/she was still fit for work and is therefore not entitled to sick leave if not declared unfit for work. 

• annual leave may not be taken and the employer may not permit it to be taken during a period of notice. 
• So is the employee has 30 days leave due to him and he resigns or is dismissed, he may not take his notice month as annual leave – the employer must pay him out for that leave. 
• annual leave may not be sold back to the employer, and the employer may not purchase annual leave days from an employee. 
• the only circumstances under which the employer may pay the employee for annual leave due is upon termination of the employment contract for any reason, or upon the death or retirement of the employee. 
• For this purpose, refer to The Calculation of Remuneration :  
• lastly, and this is important – an employee is entitled to take annual leave accumulated to him in an annual leave cycle on consecutive days.  

This means that if the employee requests to take his 11 accumulated days in one go as it were, then the employer cannot refuse that request. The employer can refuse to grant the leave until a later date if he can show good cause, but he may not stipulate that the employee can "only take 5 days" or "can only take 7 days" 

If the employee has 11 days accumulated to him, he is entitled to take the 11 days consecutively. (section 20 (3)) 

• should an employee request to take annual leave accrued to him in a leave cycle after the expiry of 6 months from the end of that leave cycle,  then the employer must grant that request.  (section 20 (4))

 This does not mean that the employer must take the leave within 6 months of the expiry of the previous leave cycle. 

It simply means that should the employee request to take the leave, then the employer cannot refuse that request. 

If the employee does not request to take the leave then the leave days accumulated remain to the credit of the employee. 

Those are the basic rules which are quite clear.

For more information contact advice@labourguide.co.za

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