Here's what labout law says...
Are you in breach of the BCEA if you denied her request for annual leave?
According to the current legislation, your employees can't take annual leave during any period of notice of termination of employment. This means that you must pay them out for their accrued leave on termination (Section 40(c) of the BCEA).
And that means you wouldn't be in breach of the BCEA if you denied her request (Section 20(5) of the BCEA)
In fact, you can't require or permit your employee to take annual leave during any period of notice of termination of employment. You'd be in breach of the BCEA if you let her take annual leave.
That said, there's nothing stopping you from letting her take unpaid leave during her notice period.
Let me explain...
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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.
• 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.
Here's what to do if your employee takes unauthorised leave during her notice period:
You can insist on 'no work, no pay' if your employee takes leave without permission. It doesn't matter if he has a valid reason.
Let's say Bob telephonically asks a co-worker to fill in a leave form for 11 days for him. Your policy is leave by prior arrangement and approval. You don't approve his leave and advise him of this on the first day he's absent. He doesn't report to work the next day. You try contact him a few times without success to tell him he's on unauthorised leave. He still hasn't reported for work, so what do you do now?
Send a notice to Bob's home telling him he's absent from work without permission, which is unacceptable. State he must return to work on a specific day. If he returns, hold a disciplinary hearing to discipline him. You can treat the time as unpaid leave.
If he doesn't return, send a notice to his home calling him to a hearing. At the hearing (whether or not he attends), deal with the issue as misconduct and discipline him accordingly.