The expiration of annual leave after 18 months

The court found in the first case of Jardine v Tongaat-Hulett[3] that this above-mentioned practice of forfeiting accumulated annual leave after 18 months was not automatically enforced, but rather that employees were able to use their total accumulated leave indefinitely even after the prescribed period of 6 months, after the annual leave cycle. In contradiction to this outcome, the court in the case of Jooste v Kohler Packaging[4] stated that strict adherence to the process in section 20(4) of the BCEA[5] must always be upheld. The court in Jooste[6] further found that in order to permit payment in respect of prior and further leave cycles, both the employer and the employee would have to circumvent the provisions of the BCEA. The confusion was somewhat resolved in the case of Ludick v Rural Maintenance[7] where the court addressed both of the outcomes of the previously mentioned cases. It was stated that with regards to the contractual provisions regarding leave, the employer could not contract out the relevant provisions of the BCEA, confirming that an employee is entitled to utilise their respective accumulated leave for 6 months after the previous leave cycle as set forth in section 20(4) of the BCEA. The judge in this case held further that any annual statutory leave not taken during this 18 month period would therefore be forfeited, in particular the statutory minimum of 15 days of the current annual leave cycle.

The question now remains whether the leave cycle that would be subject to the 6-month discretionary period for accumulated leave days commences, in cases of resignation for example, immediately upon the commencement of the employee’s contract and the following 12 months, or following the calendar months from January through to December, the latter option ensuring that the 6-month period will be fixed from January to June for all employees. As Van Niekerk J found in the Ludick case, the purpose of this extension is to ensure that employees are taking their annual leave that they are entitled to without the unnecessary hassle of being forced to use all accumulated leave within only 12 months. Having the annual leave cycle of each employee start immediately upon their instatement will only enforce the purpose of the BCEA and allow employees more room to plan their leave accordingly.

It is my belief that if employees were given the opportunity to have their leave cycle start immediately upon employment, that such an annual cycle would ensure that along with the 6 month grace period, more of the annual leave would be used and not unintentionally forfeited. If the alternative option is taken, having the annual leave cycles be restricted to Jan-Dec and the 6-month grace period to then be restricted to the following Jan-Jun, more problems would be invited than could have been avoided. The former option would also allow the employees to make more flexible decisions about when to use their annual leave and not to have to wait for the commencement of a new calendar year for their leave cycle to proceed as normal, along with the subsequent 6-month grace period.