Coco has had a wonderful offer. She and her family have won a free trip to the Seychelles, all expenses paid! But surely there must be a catch besides the one swimming in the blue water of these Indian Ocean islands?
Coco is a full-time secretary and has been working at her new company for just over a year, but is not sure how much leave she may be entitled to. According to the Basic Conditions of Employment Act 75 of 1997, annual leave does not apply to employees who work less than 24 hours per month. This includes domestic workers. This means that temporary employees and independent contractors are included in this Act.
In terms of the Act, annual leave accrues to an employee. Thus the employee’s leave builds up every month. The leave accrues at the rate of one hour for every 17 hours worked, or one day for every 17 days worked, or 1,25 days per month. The total permitted minimum is 15 working days per annum on full pay in each annual leave cycle or in each period of 12 months, calculated from the date of employment.
The Act refers to 21 consecutive days. This includes weekends, which means that you will actually receive 15 working days, as a “normal” working week consists of five days.
It is important to note that the Act states that the accrual applies at the rate of one day for every 17 days on which the employee worked or was entitled to be paid. Public holidays are seen as working days since the employee is paid on those days as if they are working days and will thus be included in the calculation when determining annual leave.
This also applies to sick leave. If the employee has been booked off for sick leave and he/she was paid on those days, those days can be included in the calculation for annual leave, unless the employee has no sick leave days left, or has been on unpaid sick leave, in which case these days are excluded from the calculation.
It is common practice for some employers to deduct a certain monthly amount from the wages of a temporary employee or from the wages of an independent contractor, to put this money into a “leave account” to the employee’s advantage, and when that employee goes on annual leave or on sick leave, he/she is paid for those days from this account. However, this practice is illegal and the employer will be guilty of breaching the Basic Conditions of Employment Act, and is also guilty of fraud because he has defrauded the employee of a legal entitlement, namely paid annual leave and paid sick leave. If you are ever the victim of such a practice, you are entitled to sue the employer for damages.
There is no provision that states that employees may not take their annual leave days consecutively. Therefore, Coco will be able to go on her holiday, as she is a full-time employee who works more than 24 hours per month and has been working for a year, which means she has 15 consecutive leave days during which to enjoy her opportunity of a lifetime!
This newsletter is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.