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10 FAQs on employee leave answered

Disputes over employee leave are never ending, explains labour lawyer Michael Bagraim.

He says he is constantly confronted with different legal issues when it comes to leave entitlement.

According to Bagraim, some employers deliberately ignore labour laws while others can be misguided.

He sets the record straight on many common questions regarding leave rights here:

1. Companies that require doctor's certificates for sick leave taken on Monday or Friday.

Despite it being a common HR practice, Bagraim says this policy is not legal.

Employers can only ask for sick notes when workers are away for two consecutive days or on more than two occasions during in 8-week period.

Michael Bagraim, labour lawyer

2. Can employers refuse workers leave and offer cash incentives instead?

Bagraim says this is unlawful and infringes on the Basic Conditions of Employment.

3. Do employees still accrue their annual leave days whilst on maternity leave ?

Every employee is entitled to 21 consecutive days annual leave on full remuneration (laws further says that 1 day annual leave is granted for every 17 days worked or entitled to be paid).

This is a problem. I got a hold of the Department of Labour and one inspector said yes and other said no.

Michael Bagraim, labour lawyer

4. Leave entitlement is different depending how many consecutive days a week an employee works.

For example, if you work a three day week for an employer then you're entitled to 9 days per annum per leave.

Michael Bagraim, labour lawyer

5. When you want to take leave verses when your employer wants you to: who makes the call on when you get to take the leave?

The employer does call the shots, but they can't to do it to the detriment of the employee, resulting in unfair practice. What happens when your employer tells you when you can take leave?

Michael Bagraim, labour lawyer

6. Can accumulative leave that be carried over into the new cycle?

Only for the first six months.

7. Do contract and permanent workers have the same leave rights?

Yes.

8. Can employers withhold leave pay-outs if workers resign without notice?

No. He says that companies cannot withhold leave, but can take legal action against employers.

You can't take a persons leave away. It's a persons right. Taking their leave away is tantamount to theft.

Michael Bagraim, labour lawyer

9. If companies give sick/annual leave in advance can they expect it to be "paid back" after resigning.

You can't claim back leave that has been taken in advance, or in overdraft as it where.

Michael Bagraim, labour lawyer

10. Falling sick while scheduled to be on annual leave...

If an employee has leave approved, but falls is and is booked off by a doctor during that time, they are able to claim sick leave if they can provide proof of incapacity.

This becomes sick leave and you still have your leave owing. You'd have to be accredited back with your annual leave.

Michael Bagraim, labour lawyer

Listen to the full conversation from The Pippa Hudson Show:


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