Mbongeni* works at a factory, and every year the company closes for 10 days over the December holidays. When this happens, all the staff have to take their annual leave, whether they want to or not. Mbongeni thinks this is unfair because he wants to take leave over the Easter holidays, and wants to take his boss on about it, but he’s not sure what the law says. Can he refuse to take his annual leave when the company closes? Scorpion discusses.

Scorpion Legal Protection’s advice

Let’s start with how annual leave works. The Basic Conditions of Employment Act (BCEA) says that an employee must get 1.25 days’ leave per month worked, or 1 day for every 17 days on which the employee worked or was entitled to be paid. Annual leave works in cycles of 12 months, so an employee’s annual leave cycle begins from the first day of employment, or from the end of the previous leave cycle.

Each company will have its own annual leave policy that sets out the rules with regard to how and when leave can be taken. Many employers have a shutdown period over December. If this is the case, the employer can stipulate that annual leave must be taken to coincide with the shutdown period. Should an employee use their annual leave at another time during the year, then the shutdown period will be treated as unpaid leave, and he/she will not be paid for those days.

If a public holiday falls in the period for which you put in annual leave, and the day it falls on is a day you would normally work (so for most people, any weekday), then you are entitled to get an extra day’s annual leave for each public holiday. For example, Mbongeni puts in his annual leave for 16-27 December. That’s 10 days. But 16 December is a public holiday (Day of Reconciliation), as is 25 December (Christmas Day) and 26 December (Day of Goodwill), so only 7 days will be taken from Mbongeni’s annual leave.

Tips:

• Every employer will have their own annual leave policy. Some may give you extra days for free when they shut down over the holidays, and some may not. This is up to the employer to decide.
• If you want take your leave at another time of the year but don’t have enough leave for the time the company shuts down, your employer can count these days as unpaid leave and take them out of your salary.

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* This is only basic advice and cannot be relied on solely. Names have been changed to protect identity.