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Thread: Can an emloyee sell his/her leave

  1. #1
    Gold Member IMHO's Avatar
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    Can an emloyee sell his/her leave

    Employees sometimes, when in need of cash, want to sell their leave to raise the cash. I read somewhere that it is prohibited by law, in the interest of the employee, who must be able to take leave and rest during the year.

    I now refused to sell leave to a lady and used that as a reason. She subsequently went to the dept and queried my reason. She was told that it is not true and that it is up to the employer whether he wants to sell or not. I am still opting not to sell, for reasons we can discuss later if need be. I did sell leave in the past, but made sure that the employee is left with minimum two weeks of leave.

    Can someone clarify what the law says on the subject?
    ~Expenses will eat you alive! - My first Boss~

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    You are 100% correct.

    Section 20(11) An employer may not pay an employee instead of granting paid leave in terms of this section except—
    (a) on termination of employment; and
    (b) in accordance with section 40(b) and (c).

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    Gold Member IMHO's Avatar
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    Thanks. It is just strange that the dept. tells the employee otherwise?
    ~Expenses will eat you alive! - My first Boss~

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    Gold Member Singhms's Avatar
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    Employee could be pulling your leg and not of went to the department at all. Just told you that too check what you would say!
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    Gold Member Houses4Rent's Avatar
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    Exactly my thoughts too, but I did not post it as I thought it would be too obvious.
    I do not know the law but I doubted leave was sellable as it would defeat the primary purpose.
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    Some large corporates allow certain leave types to be convertible to cash. it is covered in their conditions of service.
    In your case however, it is obviously just normal annual leave, and @ CLIVE-TRIANGLE is 100% correct in his quote of the act.
    (Section 20 referring to severance pay only)
    Your employee is taking a chance

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    From the SEESA website:

    The Labour Court, with reference to two previous conflicting cases, considered the accumulation and forfeiture of statutory annual leave (granted in terms of the Basic Conditions of Employment Act (BCEA)) in the case of Ludick v Rural Maintenance (Pty) Ltd.

    As a result, employers should note that the balance of authority from the Labour Court now suggests that:

    1 Untaken accrued statutory annual leave from the current annual leave cycle and the immediately preceding leave cycle, is not forfeited and must be granted or paid out on termination of employment.
    2. Statutory annual leave from prior leave cycles is forfeited and an employee has no right to be paid in respect of such annual leave, unless the employee’s employment contract or the employer’s leave policy provides for such accumulation and payment.
    3. Annual leave must be taken by agreement between the employer and the employee and failing such agreement, the employer may determine when the employee may take leave.
    4. If an employee is frustrated from taking leave, he or she must use the enforcement mechanisms contained in the BCEA.
    5. Leave granted in addition to that which the BCEA provides for, are subject to the limitations prescribed by the BCEA, and may be subject to conditions determined by the employer.

    Employers operating in industries regulated by a main agreement concluded in a bargaining council, should take note that principles set out above only apply to the BCEA. The particular provisions of the main agreement might differ from those of the BCEA.

    (References to "payment" means on termination)

    For full story you can access the article here

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    This thing has surfaced again. Now her mother's aunt died and she needs the money. I am not dead set against selling the leave, but I do not know what the implications could be if I do. Could I end up owing her the leave should she leave the employment and have to pay it out again?

    She just came back from maternity leave a month ago.
    She has 4.66 weeks leave accrued.
    She wants to sell 3.33 weeks.
    That leaves her with 1.33 weeks plus what she will earn towards the end of the year, just under 2 weeks.
    9 years service.

    I feel like selling it and get it over with, but worry about complications and a knife in the back.
    ~Expenses will eat you alive! - My first Boss~

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