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Is any leave not taken accumulated or forfeited?

Certain leave is conditional upon a particular set of contingencies. If the event does not occur, the leave is not granted, and no payment is made.

The prime examples of this, insofar as the BCEA is concerned is sick leave, maternity leave (which is unpaid), family responsibility leave, and the ‘reasonable time off for union responsibilities’ provided by section 14 (5) of the LRA for shop stewards.

The rules which relate to these leaves are simple. If the contingency does not arise there is no entitlement to the leave. More importantly, the employer is entitled to reasonable proof that the contingency has occurred [BCEA Sections 23 and 27(5)]. There is no entitlement to accumulate, or to be paid out for the leave if the event triggering the leave does not occur.

The only leave which does accumulate and needs to be paid out is annual leave – this is the employees by right, accumulates at the rate of one day for every seventeen days worked (one hour for every seventeen), and is very clearly paid out at the termination of the employment in respect of leave in the current cycle of computation and execution, which is the 2 months immediately following the hiring or anniversary of hiring of the employee [BCEA 20(1) and (2)]. This much is clear.

Strictly speaking, if the employee does not terminate, the leave should not accumulate, as the employee is compelled to take the leave in the year (cycle) in which it occurs, or no later than six months later by mutual agreement [BCEA 20(4)]

What is not so clear is what happens if the leave is not taken completely in one cycle, and the employee enters the next cycle, where the same might happen, building up a large amount of leave which has been earned but not taken.

What happens next appears to be confused, and subject to varying interpretations, as well as myriad claims as to what court cases say.

Dealing with court cases first, let’s dispose of that right now.

One court decision does not make a precedent or an inflexible rule. If they did, every time there was a court case we would have to change our practice. And incidentally, arbitrator’s decisions bind no one at all. It is only when superior courts of appeal consistently rule in a set of circumstances that we can say there is fixed law. But in any event, there is always the issue of whether or not the facts of the case are the same. Also, bear in mind, judges are often wrong in their decisions, and this is particularly so in the case of labour.

It has always been my approach that I do not need a lawyer or a judge, who certainly has a lot less experience of the world of work than I have, and probably has less experience of what happens in the world of work, to tell me what is fair, equitable or just, let alone what is practicable and workable in the place of work. I am prepared to back my judgment anytime, and would suggest to you that you do the same – with one proviso. That you are scrupulously honest and do not give the interpretation that suits your purpose. Might I in this regard, refer you to the horse test. That which appears to be patently absurd to a sensible and normal human being, must be absurd. Quoting every day’s new court case is the realm of the charlatan, or the person who has no fundamental understanding of labour.

These are the rules of leave accumulation as I understand them, and commend them to you:

1. Unless there is a specific employment policy setting out the circumstances of leave accumulation, leave does accumulate. i.e. Leave not taken, must be paid out at the current rate of earnings.

2. You may limit the accumulation and carrying forward of leave in any manner that you wish, subject to the proviso that the reason that the employee does not take the leave is not at the employers instance. In other words, the employer has a duty that he must show he has fulfilled, that he has actively urged the employee to take the leave. Secondly, the employer should endure that the policy is in writing, and in this case, it is better if it is in writing.

You may hear all manner of arguments as to what the law actually is – obviously I support my own interpretation, but as yet we have no definitive interpretation – other than to remind you of Sections 2 and 3 of the BCEA and LRA respectively, which deal with the objectives of and the interpretation of the Acts. These make it clear as to how it is to be viewed.