Labour law
Query on Labour and Employment Law
I have resigned and have 25 days leave due to me. Can I take this leave during my notice period ? I have told my employer I want to take my leave in my period of notice but he refuses.
By  Sameer Kedia  |  15 Jul 2016  |  Upvotes: 0  | 

1 Answer(s)

Rashi Gahlaut
Advocate

Section 20 (5) (b) of the BCEA states clearly that "the employer may not require or permit an employee to take annual leave during any period of notice of termination of employment.” This means that, in terms of the act, an employee is prohibited from taking leave during his period of notice on resignation, and the employer is prohibited from forcing the employee to take leave during any period of notice. We have an employee who has given us four weeks notice, but the employment contract states one calendar month - what can we do ? The conditions of the employment contract are lawful, provided that the period of notice applies to the employer - namely that if the employee should be retrenched or dismissed with notice, then the employer is obliged to also give the employee one calendar months notice. If the condition applies to both parties, then the employer can force the employee to comply with the condition. Should the employee refuse and simply walked out, the only thing the employer can do is sue the employee for damages in terms of breach of contract.

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