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Welcome to Scorpion’s Legal Tips! Every week we’ll share stories of injustice and show you how you can strike back legally.
Nkosazana* resigned from her company because of a fantastic career opportunity. She was excited to move onto bigger things, but she loved her job and wanted to make sure that everything was 100% in order before she left. She had 15 days’ leave saved up that she could use, but with so much to do she just never found the time to take them. She thought it was fine and that she would just get her leave paid out when she finished working for the company. She was shocked when she received her final payslip and noticed that leave payout wasn’t included. She contacted her employer about the matter, and he said that she should’ve taken her leave while she worked there and sorry, but they are not going to pay her out for the leave days. AZIKHIPHI! That’s not on! Scorpion Legal Protection discusses how leave works and why her former employer could get in trouble with the law.
Section 20, clause 10 of the Basic Conditions of Employment Act (the Act) says that the employee and the employer must agree on when annual leave can be taken, and if there is no agreement, then unfortunately annual leave must be taken at a time determined by the employer. This means your employer can refuse to allow you to take leave; however, your employer is not allowed to refuse to pay out your leave. Sections 40 (a) and (b) of the Act deal specifically with this issue. When you resign and end your employment with a particular company, they must pay you for any period of annual leave due to you that you haven’t taken, as well as any other time off due to you. For example, if you have an agreement with your employer that you get time off for working on public holidays or overtime, then this must also be paid out to you when you resign. If Nkosazana’s employer still refuses to pay out the leave days owed to her after she’s spoken with them, then she can refer the matter to the Department of Labour and lodge a dispute for leave payout.
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* This is only basic advice and cannot be relied on solely. Names have been changed to protect identity.
Date added: 14 May 2019
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