Know what the BCEA says about taking annual leave during notice periods so you can comply

Simangele Mzizi, Fsp Business, 18 Nov. 2014

Tags: bcea, leave, annual leave, basic conditions of employment act

You know what the Basic Conditions of Employment Act (BCEA) says about calculating your employees’ leave entitlement.

You know it says you must grant your employees at least 21 consecutive days annual leave on full remuneration for each annual leave cycle. And that 21 consecutive days of annual leave equates to 15 working days and six weekend days (three weeks of annual leave).

But, do you know what the BCEA says about taking annual leave during notice periods? Is something like that even legal?

Read on to find out what exactly the Act says about this so you can comply and manage annual leave correctly.

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The BCEA has this to say about taking annual leave during notice periods

According to the BCEA, taking annual leave during notice periods is illegal.
The Act makes it clear that you can’t require or permit your employees to take annual leave during any period of notice of termination of employment.
If, for example, you dismiss Jane for operational requirements, you can’t ask her to take annual leave that’s due to her during the notice period. Jane is however entitled to a payment for her accrued leave.
Experts behind the Labour Law for Managers Loose Leaf Service warn that the inclusion of the words “permit” in the Act seems to suggest that you can’t even agree with your employee that she takes annual leave during a period of notice. So thread carefully.
Now that you know what the BCEA says about taking annual leave during notice periods, remember these all important points about this leave type.

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Four points you must always remember about annual leave

1. You must grant your employees annual leave not later than six months after the end of the annual leave cycle.
Remember, if, for example, you denied your employee annual leave for operational requirements, you must reschedule his annual leave for another time – still within the 18 month window allocated in law.
You have a duty to ensure your employees go on annual leave within the agreed timeframes.
2. You can’t pay your employees instead of giving them paid leave except on termination of employment and if this payment is in line with Section 40(b) and (c) of the BCEA.
3. You and your employees must agree on when it’s appropriate to take annual leave. If you can’t reach an agreement, you (the employer) can determine when your employees must go on leave.
4. If, for example, you terminate your employee’s employment and he has leave owing to him, you must pay him for annual leave he hasn’t taken (Section 40 of the BCEA). The only condition is that your employee must be due the leave in terms of Section 20(2).
The bottom line: Taking annual leave during notice periods is illegal. Now that you know about this, comply with the BCEA and manage annual leave correctly.
PS: For more information on annual leave, check out The Ultimate Guide to Annual Leave.

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