Annual leave is a legal employment right of all employees
The title of this article sounds untrue or that it is unthinkable that such practice exists. However, it is unfortunately true that there are various employers that refuse to grant annual leave to an employee if that employee has been repetitively or excessively on sick leave.
Whether sick leave is being abused or exhausted due to its excessiveness and the management thereof is not the focus of this article.
The Law
The minimum annual leave and sick leave provisions are stipulated in sections 20 and 22, respectively, of the Basic Conditions of Employment Act (BCEA) or where relevant, in collective agreements.
Without going into too much detail, an employer must grant an employee at least 21 consecutive days’ annual leave on full remuneration in respect of each leave cycle. Annual leave not taken at the end of the leave cycle may not be exchanged for cash, in other words, the employer may not pay an employee instead of granting paid leave, except on termination of employment.
An employer may not refuse to grant an employee leave, the timing of which is by mutual agreement, but it must be granted.
An employer must grant an employee sick leave of 30 days (if it is a 5-day work week) or 36 days (if it is 6-day work week) over a sick leave cycle of 3 years. If an employee, for example, takes the 30- or 36-days sick leave in the 1st year of the 3-year sick leave cycle, any additional sick leave over the remaining 2 years of the cycle, must be unpaid leave.
An employer is not required to pay an employee if the employee has been absent from work for more than 2 consecutive days or on more than two occasions during an 8-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.
In other words, an employee must submit a valid medical certificate after 3 days or more absence from work or if the employee is absent from work more than twice in an 8-week period.
Case Study
A new manager at a large national employer has unilaterally decided that employees that have been on sick leave on five or more occasions in a particular year of the 3-year sick leave cycle, and who take any further sick leave in the following year, will forfeit or will be refused their annual leave. The affected employees were required to, or better described as coerced into signing a written agreement to enforce the practice. This is clearly unlawful and furthermore a blatant abuse by the manager of his/her authority.
The previous manager, replaced by the new manager who has implemented the aforementioned practice, has been negligent or incompetent to manage and control employee absences from work. This lack of control and discipline created an environment where employees abuse sick leave to their liking or as they please.
Understandably, the new manager wants to take control and manage the abuse of sick leave by introducing discipline and strict control. While the intention is to be complimented in comparison with the previous manager, the new manager’s practice is not only unlawful and an unfair labour practice but will also cause employee dissatisfaction and poor work relationships.
Conclusion
An employer, or manager for that matter, may not refuse to grant annual leave to an employee, which of course, as alluded, is by mutual agreement. An employee must apply for leave which means that such leave application may be declined or postponed for good reason or for operational requirements. However, a manager cannot unilaterally penalise an employee by refusing to grant annual leave because the employee has taken too much or exhausted sick leave.
Abuse of sick leave by employees is a problem experienced by most employers. However, employers must apply the law and manage all absences from the workplace, not only sick leave, in a manner that will effectively reduce absenteeism.
