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Here's how the labour court deals with cases relating to untaken leave

by , 21 November 2014
During this time of year, employers are confronted with leave issues.

After all, most employees take leave during the December holidays so they can spend more time with their loved ones.

One thing we've picked up from the queries our experts have been getting is that employers want to find out about how to handle untaken leave.

To bring you a clear picture, we're turning to previous case law because it will help you deal with this issue accurately. Read on to find out how the labour court deals with cases relating to untaken leave.

Here's one Labour Court case that deals with the issue of leave accumulated in excess of what the BCEA permit

According to the Labour Law for Managers Loose Leaf Service, in the case between Jardine vs Tongaat Hulett [2003] 7 BLLR 717 (LC), Jardine got dismissed for writing an impolite letter to a superior. He'd accumulated 48.8 days annual leave during the course of his employment.
But when the company dismissed him, it only paid him for 40 days leave as this was in line with their policy. But Jardine claimed for payment of the 8.8 days.
When the matter went to court, the company said Chapter Three of the Basic Conditions of Employment Act (BCEA) didn't apply because the company offers leave provisions that are more generous than those in the BCEA. It also said that its leave policy didn't allow its employees to accumulate in excess of 40 days leave.
So how did the Labour Court rule?

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Here's how the court ruled on untaken leave

  • The court accepted that the company's leave policy was more favourable than the provisions of the BCEA.
  • It held that Section 20(4) of the BCEA protects employees who might otherwise be denied annual leave. It imposes an obligation on the employer to make sure employees take annual leave. But it doesn't impose an obligation on the employee to take leave within six months after the end of the annual leave cycle.
  • The court said while the company didn't have a duty to pay the excess accumulated leave since it was greater than the statutory minimum, it had to pay for the 8.8 days leave. This because when you read Section 20(4) of the BCEA together with the company's policy, the company was obligated to ensure Jardine took annual leave. And the company failed to do so.
  • The court held that by dismissing Jardine, the company deprived him of his right to take leave due to circumstances beyond his control.
  • Finally, the court said the company should have given Jardine a hearing in terms of their policy before depriving him of his excess leave.
  • As a result, the court said the company must pay Jardine for the additional 8.8 days annual leave he was asking for.
So what lessons can you take from this case?

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Here's what you can learn from this 'untaken leave' Labour Court case

The Labour Law for Managers Loose Leaf Service explains that this case shows that you must tell your employees that accumulating leave is illegal.
Another important message that comes through is you MUST ensure your employees take their leave when it's due.
Lastly, you must have annual leave policy that you communicate well and stick to.
PS: For more information on how to handle annual leave issues, check out The Ultimate Guide to Annual Leave.

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