The question of remuneration for accumulated leave not taken by the employee in the years preceding the termination of the contract of employment or resignation by the employee often arises. The Basic Conditions of Employment Act No. 75 of 1997 in South Africa, (hereinafter referred to as “the BCEA Act”), addresses such an issue. Relevant sections of the BCEA Act and an analysis of recent case law, reveals crucial points to be noted.
In most cases, the courts dismissed the employee’s application for payment of accumulated leave on the basis that it was in direct contravention of the BCEA Act.
Parties are however allowed to enter into employment contracts or agreements that allow for the remuneration of leave not taken over and above the statutory prohibitions, as long as the statutory minimum is observed.
It is clear that accumulated leave beyond the amount accrued to an employee in the annual leave cycle, being the period of 12 months employment with the same employer, immediately prior to the termination of service is not allowed for.
In the judgment of Jooste v Kohler Packaging, the court stated that “the purpose of the BCEA Act is to ensure that any employee takes annual leave and that the employer may not refuse him that entitlement”. The BCEA Act contemplates that leave will be taken so that, amongst others, the problem of accumulation of leave does not arise.
To permit payment upon termination for statutory leave accumulated from prior cycles would allow both the employer and the employee to circumvent the intention of the BCEA Act and would render the relevant regulations superfluous.
The judge in Newton v Wiloburg came to the same finding and further added, that it is the obligation of the employee to ensure that he took his annual leave and that if this was not possible for operational requirements of the business, he should have obtained a written undertaking from the employer regarding the future disposal or accrual of the annual leave owing.
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