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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.
A follower on the Scorpion Legal Protection Facebook page recently asked Scorpion if it’s fair that his employer does not allow employees to take leave during the year, only during their annual shutdown period in December each year. Scorpion takes a look at what SA’s labour laws say.
First, it’s important to know how much leave you are owed. Section 20 of the Basic Condition of Employment Act (BCEA) deals with annual leave and stipulates that employees must be granted 21 consecutive days’ annual leave (with full remuneration) during each leave cycle. When the employee works 5 days a week, this means the employee will be entitled to 15 working days’ leave, or 18 working days if the employee normally works 6 days a week. Nothing stops the employer from granting employees more days than the days prescribed by the BCEA though.
From the question, it seems that the employer has an annual shutdown period in December, which is when they expect employees to take their paid annual leave. This is quite an issue, as the employees do not determine the annual shutdown period and may wish to take their leave outside this period.
There is nothing that stops the employee from requesting to take paid annual leave outside of the annual shutdown period. However, this means that during the annual shutdown period, when the employee doesn’t have enough leave left to cover the entire annual shutdown period because he took this leave during the year, he will still have to take leave but it will be unpaid leave.
Time off gained through overtime works differently
If you have earned paid time off for overtime work (instead of getting paid for it), then by law your employer must give you this time off within one month. Employees who earn less than R211 596.30 per year are protected by the BCEA’s rules regarding overtime pay. Most importantly, this means you must get paid 1.5 times your normal wage rate except for Sunday work and work on public holidays, which must be remunerated at twice the normal wage rate.
Employees who earn more than R211 596.30 per year do not fall within the overtime provisions of the BCEA and they cannot demand to be paid for overtime worked or get time off. But the employer also cannot force employees to work overtime or demand that they work overtime without compensation. Forced labour is not allowed. If the employer wants employees to work overtime, they will need to negotiate compensation with the employees. If the employer refuses to negotiate, then the employee can also refuse to work the overtime.
Be sure to check if there is a sectoral determination for your industry, which may have further rules and protections regarding overtime.
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If you have a query, follow Scorpion Legal Protection on Facebook and ask your question during our next Live Q&A (every first Thursday of the month).
* This is only basic advice and cannot be relied on solely. The information is correct at the time of being sent to publishing. This is not financial advice.
Date added: 30 July 2021
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