Question 1 – Maternity leave and the accrual of annual leave
Does annual leave continue to accrue to an employee who is absent from the workplace on maternity leave?
The answer is simple – yes, annual leave continue to accrue to the credit of that employee.
It seems that employers are inclined to read into the Basic Conditions of Employment Act (BCEA), conditions that do not exist. In the question under consideration, the employer states that the employee is not working, so why must she accrue annual leave?
Well, the answer is quite simple. Nowhere is it stated in Section 20 of the BCEA that an employee must actually be working in order to accrue annual leave.
It states that the employer must grant to an employee at least 21 consecutive days annual leave on full remuneration in respect of each annual leave cycle, and it goes further to define a leave cycle as a period of 12 months in employment with the same employer immediately following an employee’s commencement of employment, or the completion of that employees prior leave cycle.
It is clear then that the accrual of annual leave is dependent upon a period of employment of 12 months with the same employer – it is not dependent on whether the employee actually attends the workplace or not.
When an employee is on maternity leave, the employment contract is not changed in any way at all – the employee is merely exercising her legal entitlement to four months unpaid leave (whether the employer pays a salary for the duration of, or for part of, the maternity leave, is of no consequence).
Thus, the employment conditions and the requirement to fulfil a twelve-month leave cycle remain unchanged – although on unpaid leave, the employee is still employed by the employer and the 12 month leave cycle is not broken. The only thing the employee is not doing is actually physically attending the place of work.
Therefore the annual leave continues to accrue during the period of maternity leave.
Question 2 – Forced leave during an annual shut down period
If an employee has not accrued annual leave at the time of the shut down period, but is forced to take annual leave and later resigns, does the employee then “owe” the employer the annual leave taken, but not accrued yet?
This question concerns an employee who commenced work in November last year, the employer shut down for a period of 12 days over the Christmas season, and the employee was allowed to take 12 days paid leave for the shut down period, even though he had not yet accrued that amount of leave.
On the 30 January, the employee resigned and the employer wanted to know if he could deduct the period of leave taken by the employee from any final monies due to the employee upon expiry of the notice period.
The answer unfortunately is no – because in this particular case, the employee never “took the leave” – he went on paid leave with the consent of the employer.
The only agreement (verbal) between employer and employee was that the employer agreed to allow the employee to take 12 days paid leave, although he had not yet accrued any annual leave to his credit.
There was no agreement entered into whereby the employee agreed that he would “repay” the employer for the leave granted should he resign from the employment before having accrued sufficient annual leave days to cover up the “advanced leave”.
Thus, since there was no agreement to that effect, the employer cannot now come along with a new condition – namely to deduct money – to that agreement without placing himself in breach of the original agreement.
Employers must be careful to ensure that whenever they permit an employee to do something or to receive a benefit whereby the position may arise where the employee “owes” the employer something, then a proper written agreement should be entered into to provide for the reimbursement by the employee to the employer for whatever must be repaid.