Conditions of Employment

Leave

 

Types of leave
Annual leave
Annual leave and  shutdown periods

 

 

A Question of leave entitlement.

 

I received two rather interesting questions on our e-mail facility this week regarding leave. The first concerned maternity leave and the accrual of annual leave, specifically does annual leave continue to accrue to an employee who is absent from the workplace on maternity leave?

 

The answer is simple - yes, annual leave does continue to accrue to the credit of that employee. It seems that employers are inclined to read into the act, conditions that do not exist. In the question under consideration, the employer states that the employee is not working, so why must she accrue annual leave?

 

Well the answer is quite simple.  If you read section 20 of the BCEA carefully, you will see that nowhere does it state that the employee must actually be working in order to accrue annual leave. It states that the employer must grant to an employee at least 21 consecutive days annual leave on full remuneration in respect of each annual leave cycle, and it goes further to define a leave cycle as a period of 12 months in employment with the same employer immediately following an employee's commencement of employment, all the completion of that employees prior leave cycle.

 

It is clear then that the accrual of annual leave is dependent upon a period of employment of 12 months with the same employer - it is not dependent on whether the employee actually attends the workplace or not.

 

When an employee is on maternity leave, the employment contract is not changed in any way at all - the employee is merely exercising her legal entitlement to four months unpaid leave (whether the employer pays a salary for the duration of, or for part of, the maternity leave, is of no consequence)

 

Thus the employment conditions and the requirement to fulfill a twelve-month leave cycle remain unchanged - although on unpaid leave, the employee is still employed by the employer and the 12 month leave cycle is not broken. The only thing the employee is not doing is actually physically attending the place of work.

 

Therefore the annual leave continues to accrue during the period of maternity leave. The second question was concerning an employee who commenced work in November last year, the employer shut down for a period of 12 days over the Christmas season, and the employee was allowed to take 12 days paid leave for the shut down period,  even though he had not yet accrued that amount of leave.

 

On the 30th of January, the employee resigned and the employer wanted to know if he could deduct the period of leave taken by the employee from any final monies due to the employee upon expiry of the notice period.

 

The answer unfortunately is no – because in this particular case, the employee never “took the leave” - he went on paid leave with the consent of the employer. The only agreement (verbal) between employer and employee was that the employer agreed to allow the employee to take 12 days paid leave, although he had not yet accrued any annual leave to his credit.

 

There was no agreement entered into whereby the employee agreed that he would “ repay” the employer for the leave granted should he resign from the employment before having accrued sufficient annual leave days to cover up the "advanced leave."

 

Thus, since there was no agreement to that effect, the employer cannot now come along with a new condition - namely to deduct money -to that agreement without placing himself in breach of the original agreement.

 

Employers must be careful to ensure that whenever they permit an employee to do something or to receive a benefit whereby the position may arise where the employee “ owes” the employer something, then a proper written agreement should be entered into to provide for the reimbursement by the employee to the employer for whatever must be repaid.

 

For further information, contact

Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

Read More >>>

 

Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

Read More >>>

 

Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

Read More >>>

 

Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

Read More >>>

 

 

 

 

 

 

Courses and Workshops

 

                                         

 
 

Compensation for Occupational Injuries and Diseases Course

22 August 2019 (Fully Booked)

Tsogo Sun: Century City: Cape Town

12 September 2019

Southern Sun: Maharani Towers: Durban

Employment Equity Committee Training

23 August 2019 (Fully Booked)

Emperors Palace: Convention Centre

29 August 2019 (Fully Booked)

Tsogo Sun: Century City: Cape Town

30 August 2019

Tsogo Sun: Century City: Cape Town

27 September 2019

Emperors Palace: Convention Centre

04 October 2019

Southern Sun: Maharani: Durban

Shop Steward Training

28 August 2019

Emperors Palace Convention Centre

Basic Labour Relations

04 September 2019

Emperors Palace: Convention Centre

The OHS Act and the Responsibilities of Management

13 September 2019

Southern Sun: Maharani Towers: Durban

19 September 2019

Emperors Palace: Convention Centre

28 November 2019

Protea Hotel By Marriott Tyger Valley: Cape Town

Managing Day to Day Issues/ Problem Employees Full day workshop

20 September 2019

Emperors Palace: Convention Centre

27 September 2019

Tsogo Sun: Century City: Cape Town

Hazard Identification & Risk Assessment Course

18 October 2019

Emperors Palace: Convention Centre

21 November 2019

Tsogo Sun: Century City: Stay Easy: Cape Town

Workshop Incident/Accident Investigation Course

25 October 2019

Emperors Palace: Convention Centre

22 November 2019

Tsogo Sun: Century City: Stay Easy: Cape Town

  

 Our Clients 

 

Android App On Google Play

Android App On Google Play