THE EMPLOYEE’S ENTITLEMENT TO ACCUMULATED LEAVE PAY: HOW MUCH SHOULD THE EMPLOYER PAY?

Abstract

The Basic Conditions of Employment Act 75 of 1997 (hereinafter “the BCEA”) as well as its predecessor, the Basic Conditions of Employment Act 3 of 1983 (hereinafter “the BCEA 1983”), make provision for an employee’s entitlement to pay for accumulated leave on termination of employment (s 40 and s (12)(4) of the respective Acts). Although it is clear that the legislature intended that an employee be compensated for accumulated leave on termination of employment, it is unclear whether an employee is entitled to compensation for all accumulated leave, or only the leave accumulated by the employee since the start of the leave cycle preceding the termination of the employee’s services. It is pertinent to note that the uncertainty likewise existed under the forerunner to the BCEA, the BCEA 1983. This uncertainty is exacerbated when employers, employees and labour practitioners, faced with a dispute, have to
consider the effect of collective agreements and contracts purporting to regulate an employee’s entitlement to accumulated leave pay.
The purpose of this article then is to attempt to quell some of this uncertainty through an analysis of the relevant statutory provisions and case law, and ultimately a suggestion proffered on the way forward.