The Basic Conditions of Employment Act 75/1997 (BCEA) states that the provisions for annual leave do not apply in the following instances;
- Employees who work less than 24 hours per month for an employer.
- Leave granted to employees in excess of the entitlement allowed in terms of the BCEA.
Calculation of annual leave
The BCEA stipulates that employers must grant annual leave of at least 21 consecutive calendar days (Section 20(2)(a)). Employees working 5 days in a week should get 15 working days – leave will accrue at the rate of 1, 25 days per month. Employees working 6-days in a week should get18 days – leave will accrue at the rate of 1, 5 days per month.
In the alternative 1 day for every 17 days worked (Section 20(2)(b)), or 1 hour for every 17 hours worked (Section 20(2)(c)). These alternative methods may only be applied by agreement with employees. If there is no such agreement, employers are obliged to apply the above rates. It is advisable to agree on the methods in the contract of employment.
How to calculate employees leave who earns commission or whose remuneration fluctuates
To calculate an employee’s leave per day who earns commission or whose remuneration fluctuates, (Section 35(4)(a)-(b)_ The preceding 13 weeks remuneration (or the period, if shorter) must be added together. The total must be divided by 13 weeks (or the period, if shorter) to calculate the pro-rata remuneration the employee would have received per week. This total must be divided by the total of days the employee works per week.
Period of leave
Employers and employees must agree on the period of leave taken (Section 20(10)(a)). If the parties cannot agree, the employer is allowed to make the final decision (Section 20(10)(b)). Leave must be granted by employers not later than 6 months at the end of the annual leave cycle (section 20(4)), which is 12 months from the date the employee was employed.
When employers have a shutdown period during December, it is advisable that the employer stipulates in the contract of employment that annual leave must be taken to coincide with the shutdown period. When employees utilize their annual leave during the year, the shutdown period will then be treated as unpaid leave.
Annual leave during another period of leave?
A public holiday does not form part of an employee’s annual leave and these days must be excluded. The employee must receive remuneration for the public holiday and receive an additional day annual leave if the public holiday falls on a day during an employee’s annual leave on which employees would ordinarily have worked (Section 20(8)).
Employers are not allowed to allow or force employees to take annual leave during other periods of leave to which employees are entitled to, for example, sick leave, family responsibility leave, maternity leave or leave during notice period (Section 20 (5) (a) – (b)).
Can employers remunerate employees instead of granting annual leave?
Employers may not remunerate employees instead of granting leave. The exception is when employee’s services are terminated (Section 21(11)).
ABOUT THE AUTHOR
Eleanor du Plessis obtained her LLB degree and Post Graduate Diploma in Labour Law from the University of the Free State. She is an admitted attorney of the High Court of South Africa and has 3 years and 4 months experience in the field of labour law.