Section 20 of the Basic Conditions of Employment Act sets out the usual conditions regarding annual leave, (accumulation rate of annual leave, leave cycle, expiry of leave etc.) however many employers often overlook the conditions set out regarding the payment thereof and are under a misconception of what is legally expected from an employer.
Section 21 of the Basic Conditions of Employment Act sets out the following:
Pay for annual leave
21. (1) An employer must pay an employee leave pay at least equivalent to the
remuneration that the employee would have received for working for a period
equal to
the period of annual leave, calculated—
(a) at the employee’s rate of remuneration immediately before the beginning of
the period of annual leave; and
(b) in accordance with section 35.
(2) An employer must pay an employee leave pay—
(a) before the beginning of the period of leave; or
(b) by agreement, on the employee’s usual payday.
Thus it is clear that the goal of the act is neither to deprive the employee of remuneration, nor is it to enrich the employee with any additional payments, but rather to retain the status quo as if the employee had worked, even though the employee was obviously not at the workplace.
Further, it is clear from the above act that employers are obligated to pay employees their annual leave pay before the employee embarks on such annual leave. The above would be the default time of payment that would be in effect unless the employer explicitly includes a clause in the employment contract wherein the employee agrees to the payment of leave on the usual payday. If the employment contract has been agreed to without such a clause, then it would be advisable to add an addendum stating the above, which would have to be agreed to and signed by the parties.
ABOUT THE AUTHOR
Dyllan Jankielsohn is a labour legal advisor and ad-hoc training facilitator at SEESA Bloemfontein. He obtained his LLB degree from the University of the Free State. He is an admitted attorney of the High Court of South Africa and has approximately 5 years of experience in the field of labour law.