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FORFEITURE OF ANNUAL LEAVE
Question: Can annual leave be forfeited?
Answer:
(a) Non-statutory annual leave (i.e. leave granted in excess of the minimum statutory leave) can be forfeited.
(b) The forfeiture of statutory annual leave is more controversial, but the most recent labour court judgement indicates that it can be forfeited.
Non-statutory annual leave:
Leave in excess of the statutory minimum is not regulated by the BCEA, but by the contract of employment. The parties can therefore determine by agreement how much leave may be accumulated, when it would be forfeited, etc.
Statutory annual leave:
In terms of the BCEA an employee is entitled, in respect of every 12 months leave cycle, to 21 calendar days’ leave (The number of working days’ leave to which the employee is entitled is equivalent to that which the employee would normally work in a three week period). The employer is obligated to grant annual leave not later than six months after the end of the annual leave cycle.
It is normally upon termination of employment that disputes arise about what leave pay-out an employee is entitled to.
The most recent Labour Court judgment on the issue is Ludick v Rural Maintenance (Pty) Ltd (JS 633/07) [2013] ZALCJHB 291 (30 October 2013). Here the court referred to the conflicting approaches adopted by the Labour Court in Jardine v Tongaat-Hulett Sugar Ltd [2003] 7 BLLR 717 (LC)(forfeiture not permitted) and in Jooste v Kohler Packaging Ltd (2004) 25 ILJ 121 (LC) (section 40 of the BCEA contemplates payment only in respect of leave immediately preceding that during which the termination takes place). The court applied the approach adopted in the Jooste-case and found that leave not taken within 6 months after the end of the most recent leave cycle, could be forfeited.
The effect of the Ludick-case is that it shifts the primary responsibility to ensure that leave is taken from the employer to the employee. The employee should apply for all the annual leave accrued in the most recent leave cycle, and this must be taken within the 6 month period after the end of the leave cycle. If the employer refuses to grant such leave, the employee may approach the Department of Labour to assist with enforcement. If the employee fails to apply for leave or the employee does not go on leave, such leave would be forfeited. (The forfeiture is subject to more favourable provisions that may be contained in the contract of employment or the employer’s leave policy).
Comments
I resigned from saps after 40 years active service because a case was pending
I was sanctioned by DC but the employer was noot happy with outcome and took the sanction to labor court for review
I decided to resign before the feedback from labor court
My question is I have 139 capped leave days accumulated before 1999
Will I receive my capped leave payment or do I forfeit it
Unlike most employers, I would imagine that the SAPS would have a leave policy that clearly spells out to what extent leave may be accumulated.
These comments have a good information. I like it very much Thank You.
I recently resigned and confirmed a month prior that I had 27.5 days leave due to me.i was only paid out 7.5 days with 20 days not paid where do I stand on this issue
Reply to Collin: We suggest you approach the Department of Labour or an attorney who specialises in Employment Law.
Relating to D. Louw’s comments on 2014/02/11. I resigned from SAPS on 2015/04/31 for health reasons.At the time of resignation i had 169 capped leave .All this capped leave was accrued during the previous dispensation.i was one month away of completing 28years of service. am i entitled to be paid my capped leave
Reply to Chris: The case law discussed in the article deals mainly with the accrual and forfeiture of statutory leave. You should be able to claim what is due to you in terms of your contract of employment or policy.
An employee resigned. He had no employment contract, and the accumulation of leave was not discussed. He started work in 2008 and accumulated leave until resignation – 2015.
The employer calculated the leave payout on a 3-year cycle basis. Employee lost 14 days in the first 3-year cycle. Is the employer legally permitted to do this
Reply to Sophia: The fact that the employer looked at a 3 year cycle was probably to the employee’s benefit. The employer could just have chosen to take only the 12 month annual leave cycle into account (in which case the employee would be entitled to leave for previous cycle and proportionately for the current cycle).
I have resigned in my previous employer after 10 years of service and i was suppose to serve notice of four weeks but i only serve three weeks as a results my salary was cut. I also had about 15 days annual leave which i wasn’t paid for so my question is was i not entitled to those leave days.
Reply to Kidwell: If you were prepared to work your four weeks notice, then you are entitled to be paid for the entire notice period. You should also be entitled to be paid for accrued leave that has not lapsed. You can approach the Department of Labour for further assistance.
I have 4 days excess annual leave due to me that expires on the 11th of September 2014. I booked my 4 days of leave for September however only 2 were approved and I was told that my other 2 days would just get forfeited.Am I suppose to get paid out for my 2 days of leave that’s going to get forfeited?
Reply to Chay: If you are talking about minimum statutory leave, then you shouldn’t forfeit the leave that is due (provided it still witin 6 months after the end of the relevant leave cycle).
I resigned from saps in august 2011 and had 140 days capped which i had before 1999 when new policy regarding annual leave was implemented.I was not paid out any money for my capped leave.Is there any ways and means that i can do in order for saps to out to me what is due to me
Reply to Mervyn: One would have to look carefully at the leave SAPS policy. I suggest you seek assistance from an attorney who specialises in labour law. Considering the date of your resignation, your claim might have prescibed or it is about to prescribe (Claims normally prescibe after three years).
I Have sick leave forefeited because i did not take all in my 3 yr cycle will i get paid for this leave when i retire.
Reply to Parkash: Sick leave that has not been taken does not get paid out upon termination of employment for any reason (including retirement)
I have 11 days annual leave and want to make a notice on 19/08/2014,i’ll make a notice of two weeks what about my annual leave(forfeite)
Reply to Nelson: As an employee of a mining company, you probably have very clear and specific leave provisions that apply. I suggest that you discuss the matter with your manager.
I applied for an annual leave and study leave at the same time. My branch manager said I must bring the time table, I brought it. He said I must sign the leave and he will sign it when he is done with what he was busy with. All of a sudden I get a call that I must report to work apparently the branch manager did not sign my leave form. And I have to be preparing for my studies.
Reply to Ncebakazi: As an employee cannot dictate whether or when leave is granted, we suggest you discuss it with you supervisor and try to find a solution. If it cannot be resolved, submit a written grievance.
The question arises regarding policy by the South African Police applied with regard to capped leave. Although this practice was discontinued, the presonnel who had built up a leave credit could discount the capped leave after ten years service (10 days payout) or twenty years service (20 days payout) or 30 years service (30 days). Many members with 30 – 40 years service would have quite a number of days capped leave. As they retire at pensionable age, the capped leave is payed as a benefit to the member. The uncertainty arises on the decision now taken by the Labour Court and how this would affect a member who through voluntary decision, resigns from the SAPS. How would this affect the capped leave. Previously it fell away which to my mind was an unlawful practice, as where the current situation is that the employer pays the employee what is due and this includes the capped vacation leave benefit. I ask this question as I am often posed this question by members contemplating resignation. After 40 years service, I, like many other senior officers decided to resign from the SAPS and I did receive my capped leave payout. I trust that this decision by the Labour Court would not have a negative affect with regard to capped leave in the instance of resignation. Thank you for your considerations.
Reply to Danie Louw: This decision will not affect rights established in terms of existing contracutal arrangements or employer policies.