Chronicle Editor
Davis Ndumiso Sibanda
AS the festive season sets in, many employees who wanted to be on leave or were sent on leave started asking questions that are related to leave rights.
Jane a shop floor worker was told she will be on vacation leave from 15 December to 14 January and was told to fill vacation leave forms for the period.
The same position applied to all other employees on the production line.
Jane was unhappy and complained that she should not be made to fill a leave form but should just go as it was the employer’s decision.
Jane wanted to find out if she can take legal action against the employer over what she saw as alleged unfair labour practice.
The legal position at common law is that while leave is a right, it is taken at the discretion of the employer, usually as guided by the requirement of the business.
An employee cannot choose when he/she wants to go on leave but it is the employer who decides when an employee can go on leave.
However, the employer cannot deny an employee the right to go on leave indefinitely.
The Labour Act Chapter 28:01 section 14A, which covers leave rights requires an employee to serve at least 12 months before they can qualify to take vacation leave.
However, in practice many employers and employees have managed to negotiate and agree on better arrangements than the minimums set out in the Labour Act.
Those organisations that have shutdowns from mid-December to mid-January will demand that most of the employees take their vacation leave during the shutdown period and only skeleton staff and those doing maintenance work remain to take their leave later.
In such cases, workers have no choice but to go on leave as instructed.
There are many organisations, however, that have made leave management very simple by agreeing on a leave roster that is mutually acceptable to parties.
However, this is only possible where the nature of work is such that work can continue when a few people are not there.
Workers are encouraged to approach the works council and negotiate a leave roster that is suitable for their needs but where the employer rejects, there is nothing workers can do.
On leave accrual the law allows an employee to accrue a maximum of 90 days’ vacation leave beyond which an employee stops accruing vacation leave days.
However, where the employer denies the employee vacation leave and there is evidence that the employee applied for vacation leave and was denied, the employee may litigate and demand that the employer be allowed to send him/her on leave.
I am of the view that where the employer is at fault in denying the employee vacation leave until the worker reaches 90 days, courts are likely to allow the worker to continue accruing the leave days beyond 90 days as guided by section 65 of the Constitution on fairness.
Cash in lieu of leave can be mutually agreed between the employer and employees and parties shall pay each other as agreed.
However, it is advisable that employees always take part of their vacation leave days to rest.
In conclusion, employees cannot choose when they go on vacation leave and they cannot refuse to fill leave forms and while vacation leave is a right, it is exercised at the discretion of the employer and it is up to the employees to negotiate for the betterment of these minimum terms.
– Davies Ndumiso Sibanda can be contacted on: Email: [email protected]
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