During this time of the year many businesses close or go on to part-time heading up to the Christmas/New Year holidays.
Other businesses go into overtime and extra drive as they service the tourism and holiday industry. All round, this is a difficult time for businesses who are on skeleton staff and are sometimes facing their busiest time of the year.
Many businesses have an agreed leave break built into the employment contracts to ensure that their staff take their leave when the business closes. It is absolutely vital that arranged leave is properly contracted to ensure that all the staff are fully aware when their leave must be taken. Leave is after all the prerogative of management.
In terms of the Basic Conditions of Employment Act, leave applies to every employee who works 24 hours a month or more. Annual leave – annual refers to a period of 12 months employment with the same employer immediately following the employee’s commencement of employment or the completion of that employee’s leave cycle.
All employers must grant an employee at least 21 consecutive days annual leave on full remuneration in respect of each annual leave cycle. There might be an agreement of one day of annual leave on full remuneration for every 17 days on which the employee worked or was entitled to be paid, or by agreement one hour of annual leave on full remuneration for every 17 hours on which the employee worked or was entitled to be paid.
When we refer to 21 consecutive days annual leave on full remuneration, this does not mean 21 days leave per annum. This means something entirely different. For instance, if a person works a five-day week they are then entitled to 15 days annual leave per annum. The operative word is consecutive.
It must be noted that an employer must grant annual leave not later than 6 months after the end of the annual leave cycle. It is not legal or fair to demand that people do not take their leave for more than 18 months in a row.
Furthermore, a person must not be required or permitted to take leave during their period of notice of termination of employment.
It must also be remembered that an employer must grant an employee an additional day of paid leave if a public holiday falls on a day during an employee’s annual leave on which the employee would have ordinarily worked.
Most importantly, the employer can determine when the employee must take leave and I hasten to add that no employer may not introduce a practice of paying an employee instead of granting paid leave.
The leave pay must be at least equivalent to the remuneration that the employee would have received for working for a period equal to annual leave taken. This payment is normally given on the employee’s usual pay day.
Much of the arguments that I have been called in to mediate have been misunderstanding of the leave cycle and what payment is due. It should be common practice to indicate how many leave days are owing to an employee on every single payslip.
Every employee must receive a payslip in writing when they receive their pay. This payslip must indicate how much leave is outstanding which can then be queried by the employee throughout the year. It is valuable information for each employee as they start planning holidays and time off work.
* Micheal Bagraim is a veteran labour lawyer and Democratic Alliance MP.
** The views expressed here are not necessarily those of Independent Media.
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