| (1) |
In this clause "annual leave cycle" means the period of 12 months employment with the same employer following— |
| (a) |
the employee’s commencement of work; or |
| (b) |
the completion of that employee’s prior leave cycle. |
| (2) |
Subject to subclause (4), an employer shall grant to an employee, and the employee shall take, in respect of an annual leave cycle, leave as follows— |
| (a) |
a watchperson whose ordinary hours of work— |
| (i) |
exceeds 48 in a week and who normally works on— |
| (aa) |
not more than five days in a week, 20 consecutive work-days; |
| (bb) |
more than five days in a week, 24 consecutive work-days; |
| (ii) |
do not exceed 48 in a week and who normally works on— |
| (aa) |
not more than five days in a week, 15 consecutive work-days; |
| (bb) |
more than five days in a week, 18 consecutive work-days; |
| (b) |
any other class of employee who normally works on— |
| (i) |
not more than five days in a week, 15 consecutive workdays; |
| (ii) |
more than five days in a week, 18 consecutive work-days; |
| (c) |
an employee who works on an hourly or a daily basis, one hour for every 17 hours worked; Provided that an employee who normally works on— |
| (i) |
not more than five days in a week, one day for every 153 hours or 17 days worked; |
| (ii) |
more than five days in a week, one day for every 136 hours or 17 days worked. |
Provided that an employee who before this determination became binding had been entitled to a longer period of annual leave than that prescribed in this subclause, shall retain the right to such leave while employed by the same employer;
| (3) |
The employer shall pay an employee in respect of the leave mentioned in subclause (1), in the case of an employee referred to in— |
| (a) |
subclause (2)(a)(i), an amount of not less than four times; |
| (b) |
subclause (2)(a)(ii) or (2)(b), an amount of not less than three times, |
| (c) |
subclause (2)(c), an amount proportional to the weekly wage which the employee was receiving immediately prior to the date on which the leave commenced. |
| (4) |
The leave mentioned in subclause (2) shall be granted and be taken, as the case may be, at a time to be fixed by the employer: Provided that— |
| (a) |
if such leave has not been granted and taken earlier, it shall be granted and be taken so as to commence within six months after the completion of the 12 months of employment to which it relates; |
| (b) |
the period of leave shall not be concurrent with any period— |
| (i) |
of sick leave in terms of clause 14(2) or with absence from work owing to incapacity in the circumstances set out in clause 14(7)(b) or (c), amounting in the aggregate in any period of 12 months to not more than 15 weeks; |
| (ii) |
during which the employee is under notice of termination of employment in terms clause 21, or |
| (c) |
an employer may set off against such period of leave any days of occasional leave granted up to a maximum of 7 days per annum on full pay to his employee at such employee’s written request during the period of employment to which the annual leave relates; |
| (d) |
when an employer requires an employee to take leave before the expiration of the 12 months of employment to which such leave relates, the employer shall grant such employee the full period of leave accruable for 12 months of employment and, with due regard to the accrual of any increments in terms of clause 3, shall pay such employee in respect of such leave an amount of not less than that which the employee would have been entitled to at the date on which the leave would normally have accrued. |
| (e) |
If the employment of an employee referred to in paragraph (d) terminates before the expiration of 12 months in respect of which leave was granted in terms of that paragraph, the employer may set off the difference between the amount paid to the employee and the amount to which the employee would have been entitled in terms of subclause (7) had leave not been granted to him or her against the remuneration due to such an employee at the termination of the contract. |
| (5) |
The remuneration in respect of the leave mentioned in subclause (2), shall be paid not later than the last work-day before the date of commencement of the leave or, at the written request of the employee, not later than the first pay-day after the expiration of the leave. |
| (6) |
An employee whose employment terminates during an incomplete leave cycle and who has been in employment for longer than 4 months shall, upon such termination and in addition to any other remuneration which may be due to him or her, be paid one day’s remuneration in respect of every 17 days on which he or she worked or was entitled to be paid; Provided that an employer may make a proportionate deduction in respect of any period of leave granted to an employee in terms of proviso (c) to subclause (4). |
| (7) |
An employee who has become entitled to the period of leave mentioned in subclause (2), read with subclauses (4)(c) and whose employment terminates before such leave has been granted and been taken, shall and with due regard to subclause (9), upon such termination be paid the amount he or she would have received in respect of the leave had the leave been granted to and taken by him or her as at the date of the termination. |
| (8) |
For the purposes of this clause— |
| (a) |
the weekly wage at any date of an employee who is engaged in piecework or commission work shall be his or her average weekly remuneration for the preceding 13 weeks or, if a lesser period has been worked, for the number of completed weeks so worked; |
| (b) |
"employment" and "period of employment" shall be deemed to include— |
| (i) |
any period in respect of which an employer pays an employee in lieu of notice in terms of clause 21; |
| (ii) |
any period amounting in the aggregate in any period of 12 months, to not more than 15 weeks during which an employee is absent— |
| (aa) |
on leave in terms of this clause; |
| (bb) |
on sick leave in terms of clause 14(2) or owing to incapacity in the circumstances set out in clause 14(8)(b) or (c); |
| (cc) |
at the instance of his or her employer; |
| (dd) |
with the consent or condonation of his or her employer; |
| (ee) |
for any other reason that is not in breach of the contract of employment. |
| (iii) |
previous employment with the same employer if the break in employment is less than one year. |
| (c) |
employment shall be deemed to commence— |
| (i) |
in the case of an employee who, before this determination become binding, had become entitled to a period of annual leave in terms of any law, on the date on which he or she last became entitled to leave under that law; |
| (ii) |
in the case of an employee who was in employment before this determination became binding and to whom any law providing for annual leave applied but who had not yet become entitled to a period of leave 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 the employer’s service or the date on which this determination became binding, whichever is the later; |
| (a) |
Despite 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 or her establishment for 14 consecutive days or suspend an activity for 14 consecutive days and in that case he or she shall remunerate his or her employee in terms of subclause (2) or in terms of paragraph (c) hereof, as the case may be. |
| (b) |
Whenever a paid holiday falls on a day which otherwise would be a work day for an employee and such paid holiday falls within the closed or suspension period referred to in paragraph, (a), another work-day shall be added to the said closed or suspension period as a further period of leave and the employee shall be paid an amount of not less than his or her daily wage in respect of each such day added. |
| (c) |
An employee who, at the date on which an establishment or activity in which he or she is employed is closed or suspended, is not entitled to the full period of annual leave mentioned in subclause (2) shall, in respect of any leave due to him, be paid by his or her employer on the basis set out in subclause (7), and for the purposes of annual leave thereafter his or her employment shall be deemed to commence on the date of such closing of the establishment or suspension of the activity. |
| (10) |
An employer may not pay an employee instead of granting paid leave in terms of this clause, except upon termination of employment and in accordance with subclauses (6) and (7). |
Contingency Fees Act, 1997
