Can employers force employees to take annual leave?

The COVID-19 pandemic undoubtedly has put many an employer and employee in uncharted territory, having to deal with matters, arising out of the contract of employment, on a much more urgent basis than what was previously expected. Suddenly questions like ‘does section 189 still apply?’ or can we simply retrench staff? or, ‘can an employer be pardoned for not honouring its contractual obligations due to the Act of State enforced by President Ramaphosa?

 One matter, particularly, was the discussion of much debate, with conflicting messages relayed in the media. Given that the COVID-19 Lockdown carried with it dire financial consequences to both employers and employees, many employers placed employees on forced annual leave in an effort to assist them financially through this period. This practice received sharp rebuke in the public with many condemning such employers. Some even went as far as stating that this practice of forcing down annual leave on employees was outrightly illegal. However, during all the noise, what is the legal position in terms of placing employees on forced annual leave?

 The Basic Conditions of Employment Act, Act 75 of 1997 as amended (the Act) gives effect to the right to fair labour practices referred to in Section 23(1) of the South African Constitution. It does so by establishing and making provision for the regulation of basic conditions of employment in the workplace. Consideration must be given to whether provisions of the Act are open for consultation and/or negotiation and whether a compromise can be established in terms of the basic conditions of employment. The Act has various exclusions and collective agreements may typically create improved conditions of employment in the workplace, but the onus to ensure compliance to the provisions of the Act typically rests with the employer.

 In Ludik vs Rural Maintenance (2013) judge van Niekerk stated:

 “The Act establishes a clear floor of rights (or basic conditions of employment) which are positively expressed, and which are incorporated by law into every contract of employment.” 

Basic conditions of employment are therefore suffused into the contract of employment with the provisions of the Act forming an integral part of the employment relationship. Section 20 of the Act regulates Annual Leave with an employer having to grant or permit annual leave within a leave cycle of twelve months after commencement of employment, but by no later than six months after the end of the leave cycle. By default and employer is to grant an employee 21 consecutive days of annual leave in respect to each annual leave cycle or, by agreement, a ratio of either 1 day of annual leave for each 17 days’ worked or 1 hour of annual leave for every 17 hours worked. 

The Minister of Labour in one media statement encouraged solidarity between employers and employees during this pandemic and I cannot agree more. Afterall, Section 20 (10)(a) does state that annual leave must be taken in accordance with an agreement between the employer and employee. Our labour laws do not typically support arbitrary decision-making by employers regarding matters affecting the employment relationship and as such it is always advisable for employers to consult employees with the aim of seeking agreement. One of the primary objectives of the Act is to advance social justice and this can only be obtained by acting in good faith with parties to an employment relationship. 

However, what about situations whereby employees do not agree to annual been taken during a time so determined by the employer? Can it be forced if circumstances so require? It is rather surprising that many people are of the view that an employer cannot determine timelines for annual leave, but they have no problem accepting that employers may dictate hours of work, rosters, lunch breaks, or other basic conditions of employment. There is then no logic in drawing a differentiation with annual leave provisions. 

The language of the legislator, as far as accountability are concerned, primarily addresses the employer to ensure that the basic conditions of employment are adhered to. Section 68 of the Act clothe Labour Inspectors with the necessary powers to keep employers accountable for non-compliance with the Act, securing undertakings from employers to become compliant. Similarly, Section 69 of the Act clothing Labour Inspectors with the power to issue compliance order to non-compliant employers. It is thus clear that the intention of the legislator is to keep employers accountable for ensuring that the provisions of the Act is complied with.

 In addition, Section 20 (10)(b) of the Act provides that if an agreement between an employer and employee cannot be obtained, then Annual Leave should be granted as determined by the employer. It is therefore proper for an employer to first consult and seek agreement, in the absence of which, the employer may indeed dictate the timeline for the granting of leave.

 This was further supported in Ludik, where judge van Niekerk held:

 “The Act imposes an obligation on an employer to grant leave before the expiry of the six-month period. There is no right on the part of the employee to take leave at any time in that period. Section 20 (10) is a clear indication that the BCEA envisages that the timing of leave, once accrued, ought ideally to be the subject of agreement between the parties. In the absence of agreement, the employer may determine the time at which leave should be taken (s 20 (10) (b).” 

The onus to comply with the provisions of the Act rests with the employer, but in the spirit of advancing social justice and solidarity between parties to an employment relationship an employer should seek agreement when it is a requirement by the employer for employees to take leave. However, should agreement not be obtained, the employer is within its right to determine when annual leave should be taken.

It is advisable for employers to ask for the assistance of a professional Labour Relations Specialist when facing employment law difficulties. Tobie Nel is the Managing Director for Ulwazi Labour Relations and has over 15 years’ experience in Labour Law. You can contact him, by phone: 0824479512 or visit:[email protected]