| (1) |
Subject to the provisions of subclause (2) of this clause, an employer shall grant to each of his employees, other than a casual employee, or a special - function casual employee, in respect of each completed period of 12 months of employment with him |
(a)
| (i) |
during the first three years of employment, 21 consecutive days' leave; and |
| (ii) |
thereafter 30 consecutive days' leave; and |
| (b) |
in the case of a night watchman, 28 consecutive days' leave; and shall pay such employee In respect of such leave— |
| (i) |
In the case of an employee referred to in paragraph (a)(i), an amount of not less than three times the weekly wage that the employee was receiving immediately prior to the date on which the leave commenced; |
| (ii) |
in the case of all other employees, an amount of not less than four times the weekly wage that the employee was receiving immediately prior to the date on which the leave commenced. |
| (2) |
The leave prescribed in subclause (1) hereof shall be granted on a date to be fixed by the employer: Provided that— |
| (i) |
such leave shall be granted so as not to commence on a day concurrent with an employee's day off duty; |
| (ii) |
if such leave has not been granted earlier, It shall, save as provided in subclause (3), be granted so as to commence within four months after the completion of the 12 months of employment to which it relates or, if the employer and the employee have agreed thereto in writing before the expiration of the said period of four months, the employer shall grant such leave to the employee as from a date not later than two months after the expiration of the said period of four months; |
| (iii) |
the period of leave shall not be concurrent with sick leave granted in terms of clause 14; |
| (iv) |
an employer my set off against such period of leave any days of occasional leave granted on full pay to his employee at his employee's written request during the period of 12 months of employment to which the period of leave relates; |
| (v) |
when an employer requires his employee to take or consents to his employee taking his annual leave before the expiration of the 12 months of employment to which it relates, the employer, shall grant such employee the full period of leave accruable for 12 months of employment and shall pay such employee in respect of such leave an amount of not less than that which the employee would be entitled to at the date on which the leave would normally accrue: Provided further that where an employee's employment terminates before the expiration of the 12 months in respect of which the leave was granted in terms of this proviso, the employer may set off against any remuneration due to the employee at the termination of employment, the difference between the amount paid to the employee in terms hereof and the amount to which he would have been entitled at termination in terms of subclause (5) of this clause, if the leave had not been granted to him as aforesaid. |
(3)
| (a) |
At the written request of an employee, an employer may permit the leave, or a portion thereof, to accumulate over a period of not more than 24 months of employment. Provided that— |
| (i) |
such request is made by such employee not later than four months after the expiration of the first period of 12 months of employment to which the leave relates; and |
| (ii) |
the date of the receipt of such request is endorsed on the request over his signature by the employer,who shall retain such request at least until after the expiration of the period of leave so taken. |
| (b) |
The provisions of subclause (2) shall mutatis mutandis apply to the leave referred to in paragraph (a) of this sub clause. |
| (c) |
An employee shall have the right to exercise an option to waive not more than a third if the annual leave referred to in subclause (1)(a)(i) and not more than one-half of the annual leave referred to in sub-clause (1)(a)(ii) or (b) and his employer shall, in respect of such period of leave not taken, pay him wages in lieu thereof. |
Provided that—
| (i) |
the employee's request to waive such leave is retained by the employer for at least 12 months from the date of receipt thereof by him; and |
| (ii) |
save as provided in subclause (4), the payment in lieu of leave shall be made to the employee on a date to be agreed upon between the employer and the employee, but not later than the last working day before the commencement of the remaining period of the annual leave. |
| (4) |
The remuneration in respect of the leave prescribed in subclause (1), read with subclause (3), shall be paid not later than the last working day before the date of commencement of the leave: Provided that at the written request of an employee, payment in respect of the annual leave taken by an employee, or a part thereof, together with payment in respect of leave converted as provided for In subclause (3)(c), may be made on the payday immediately succeeding the employee's return from leave. Provided further that such written request of an employee shall be retained by the employer for at least 12 months from date of receipt thereof by him. |
| (5) |
An employee whose contract of employment terminates during any period of 12 months of employment before the period of leave prescribed in subclause (1) in respect of that period has accrued, shall upon termination, and in addition to any other remuneration that may be due to him, be paid in respect of each completed month of such period of employment an amount of not less than— |
| (a) |
in the case of an employee referred to in subclause (1)(a)(i), a quarter; and |
| (b) |
in the case of an employee referred to in subclause (1)(a)(ii), a third, of the weekly wage he was receiving immediately before the date of such termination: Provided that an employer may make a proportionate deduction in respect of any period of leave granted to an employee in terms of subclause (2)(iv) and (v): Provided further that an employee who leaves his employment without having given and served the period of notice prescribed in clause 13, unless the employer has waived such notice, or without the employee having paid the employer in lieu of notice, unless in failing to give such notice or to work during such period of notice the employee was acting within his legal rights, and subject to the provisions of clause 13(4), shall not be entitled to any payment in terms of this subclause. |
| (6) |
An employee who has become entitled to a period of annual leave prescribed in subclause (1), read with subclause (3), and whose employment terminates before such leave has been granted, shall upon such termination be paid the amount he would have received in respect of the leave had the leave been granted to him as at the date of termination. |
| (7) |
For the purposes of this clause— |
| (a) |
the expression,"employment" shall be deemed to include— |
| (i) |
any period in respect of which an employer,in terms of clause 13, pays an employee in lieu of notice; |
| (ii) |
any period during which an employee is absent— |
| (aa) |
on leave in terms of this clause; |
| (ab) |
on sick leave in terms of clause 14; |
| (ac) |
on the instructions or at the request of his employer; |
| (ad) |
with the consent or condonation of his employer; |
| (ae) |
for any other reason not being in breach of the contract of employment, amounting in the aggregate in any year to not more than 10 weeks; and |
| (b) |
employment shall be deemed to commence— |
| (i) |
in the case of an employee who before the coming into operation of this Agreement has become entitled to a period of annual leave in terms of any law, on the date on which such employee last became entitled to such leave under such Jaw; |
| (ii) |
in the case of an employee who was in employment before the coming into operation of this Agreement and to whom any law providing for annual leave applied in terms thereof, on the date on which such employment commenced; |
| (iii) |
in the case of any other employee, on the date on which such employee entered his employer's service. |
(8)
| (a) |
For the purposes of this clause, "employer" includes— |
| (i) |
in the case of the death of an employer, the executor of his estate, or his heir or legatee; and |
| (ii) |
in the case of the insolvency of an employer or the liquidation of his estate or sale or transfer of his business, |
the trustee or liquidator or the new owner of the business, if such executor, heir legatee, trustee, liquidator or new owner continues to employ that employee; Provided that where the previous employer gave his employee appropriate notice of termination of employment in writing,the new employer shall not be liable to pay any arrears remuneration.
| (b) |
Notwithstanding anything to the contrary in the subclause, when an employer sells his business and he and the purchaser make provision in a written contract that the purchaser "takes over" the business with all assets and liabilities, or words to that effect, then the purchaser shall be liable to pay all arrears remuneration in terms of this clause. |
| (a) |
Notwithstanding anything to the contrary contained in this clause, an employer may for the purposes of annual leave, at any time, but not more than once in any period of 12 months, close his establishment for 14 consecutive days and in that case shall remunerate his employee in terms of subclause (1) or in terms of paragraph (b) or (c) hereof, as the case may be; |
| (b) |
Whenever a public holiday as defined,is observed on a day which otherwise would be a working day for an employee and falls within the closed period referred to in paragraph (a),another working day shall be added to the said closed period as a further period of leave and the employee shall be paid an amount of not less than his daily wage in respect of each such day added. |
| (c) |
An employee who, at the date of the closing of an establishment in which he is employed, is not entitled to the full period of annual leave prescribed in subclause (1) shall, in respect of any leave due to him, be paid by his employer on the basis set out in subclause (5), and for the purposes of annual leave thereafter this employment shall be deemed to commence on the date of such closing of the establishment. |
| (d) |
An employer and his employee may agree that any leave in excess of 21 days, plus days in lieu of public holidays accrued to the employee, may be paid out. |
| (e) |
An employer and his employee may agree in writing to observe an annual closed period of not less than 14 consecutive days, in which case all excess leave shall be paid to the employee. |
South African Council for Educators Act, 2000
