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Can you force Sipho to forfeit his annual leave if he doesn't take it?

by , 20 April 2014
According to the Basic Conditions of Employment Act, you have to give your employees annual leave of at least 21 consecutive days every year. But what happens if, at end of the year, you notice Sipho, one of your employees, hasn't taken any of his leave. Can you force him to forfeit the leave he hasn't taken? Read on to find out how to deal with this dilemma so you can manage annual leave effectively.


All your annual leave questions answered!

Compiled by our labour and HR experts along with the team that gave you the Labour Law For Managers Handbook, The Ultimate Guide to Annual Leave answers the trickiest annual leave questions clearly and accurately so you're never stumped again.

Questions like…

  • How do I deduct employees leave for annual shut down?
  • Can you pay out your employees instead of granting paid annual leave?
  • What's the rule about taking annual leave during notice periods?

This report will make 100% sure you remain in control of this vital employer obligation.


Forcing Sipho to forfeit the annual leave he hasn't taken is a contentious issue

The Practical Guide to Human Resources Management explains that whether or not you can stipulate in your leave policy that your employees will forfeit their annual leave if it's not taken within a specified period is a contentious issue.

The Guide says there are two conflicting Labour Court judgments on the issue:

#1: In Peter Jooste vs Kohler Packaging Limited (2004) 25 ILJ 121 (LC), the Court held that statutory leave can be forfeited if not taken within the time frame provided for in an employer's leave policy.

#2: In Jardine vs Tongaat Hulett Sugar Limited (2003) 24 ILJ 1146 (LC), the Court held that, in its view, it's the Basic Conditions of Employment Act (BCEA) states that an employee can't forfeit his statutory leave.

In terms of this judgment, you'd be required to pay out an employee for any and all statutory leave he hasn't taken at the termination of his employment.

Important: In both cases, the Court highlighted the fact that you must give your employee an adequate opportunity to take his annual leave.


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So how do you handle the fact that Sipho hasn't taken his annual leave?

Firstly, you need to have a leave policy in place.

The reason?

'Excess leave is self-regulated between the employer and employee. It's therefore possible for the excess leave to be forfeited in terms of an employer's leave policy,' says the Guide.

Your leave policy must clearly state when Sipho needs to take his leave. You must also ensure that he takes at the very least, all statutory annual leave he accrues. This will help to prevent disputes over leave.

In addition, make sure your policy distinguishes between statutory annual leave and discretionary/excess annual leave and clarifies how both will be dealt with. You must set out the circumstances in which discretionary/excess leave will be forfeited.

There you have it. Knowing how to handle employees who don't take their annual leave will help ensure you manage leave effectively.

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