Can annual leave be forfeited in South Africa? This is a widely asked question but one that comes with much confusion. Finding a clear answer can be tricky as there are many conflicting reports out there. So, does annual leave expire in South Africa? Let’s find out.
What the BCEA states
First, let’s define exactly when leave can be taken, and what a leave cycle is.
According to the BCEA, the leave cycle is 12 months long, starting from the employee’s date of employment.
It’s up to the employer when the leave may be taken during that period. That means that an employee cannot demand to take leave if the employer can’t do without them at that time.
An employer can also require that an employee must take all their annual leave during their annual leave cycle.
However if leave has not been taken during the employee’s annual leave cycle then it carries forward to the next cycle. If leave has been carried forward then the employer must allow the employee to take that leave within the first 6 months of the new leave cycle.
Can annual leave be forfeited?
There are two types of annual leave. Statutory leave and non-statutory leave.
Statutory leave is the minimum leave an employee is entitled to according to the BCEA. For example, an employee working 5 days a week is entitled to 15 days leave a year.
Non-statutory leave is any additional leave given by an employer. For example, if an employee working 5 days a week receives 20 days of leave then 5 of those days will be non-statutory.
This brings us back to our initial question - can an employer forfeit leave in South Africa?
According to K. Cowley, chairperson of the CEA we, non-statutory annual leave can be forfeited. Cowley explains that, when it comes to non-statutory annual leave, “leave in excess of the statutory minimum is not regulated by the BCEA, but by the contract of employment.”
This means that parties can reach an agreement on how much leave may be accumulated and when that annual leave will be forfeited.
Things are a little more complicated when it comes to forfeiting statutory annual leave. Previous court rulings have produced conflicting outcomes but according to the most recent labour court judgement it appears that an employer can forfeit leave in South Africa.
When leave is carried forward from the previous cycle the employer is obligated to let the employee take that annual leave within the first 6 months of their new leave cycle.
In addition, according to the most recent Ludick v Rural Maintenance (Pty) Ltd case in 2013 the employee is responsible for applying for that leave within the first 6 months. If the employee fails to do so then their annual leave can be forfeited by the employer.
Managing and processing leave, especially when annual leave is forfeited, can sound like a headache but it can be quite simple if you have a good online leave management system in place. LeavePro keeps track of all accrued leave and automatically tracks how much carried forward leave employees have to be forfeited. Employees can apply for leave online and managers get all the information they need to approve or decline applications.
Find out more or try it free at https://www.leavepro.co.za.