Q & A / by

Frequently Asked Questions:

Q

Does an employee continue to accrue annual leave whilst on maternity leave?

A    

The answer is, yes, annual leave does continue to accrue while on maternity leave.  The BCEA does not state anywhere that an employee must actually be at work in order to accrue annual leave.

Q   

Must an employee take annual leave within 6 months of the end of the cycle in which it occurs?

A    

No, the BCEA states that should an employee submit a request to take annual leave which is due to him / her upon expiry of the 6 months period, then the employer may  not refuse to grant that request for leave.  In practice it means:

(a)

that when an employee goes on annual leave, is it negotiable during the 6 month period, and after that period has expired, is it no longer a negotiable item;

(b)

the BCEA does not prohibit the accumulation of annual leave, provided that such accumulation of leave does not contravene the employer’s leave policy.  Employers should, therefore, have an annual leave policy in place which regulates the accumulation of annual leave.

Q   

What is the definition of a “sufficiently representative union”?

A   

The LRA defines a representative trade union as meaning a registered trade union (or two or more registered trade unions acting together) that is sufficiently representative of the employees employed by an employer in a workplace.  No guidance is given by the LRA as to what level of membership a union must have before it is sufficiently representative.  Approximately twenty-five percent (25%) and upwards has become a benchmark for employers over the years.

Q   

What is an automatically unfair dismissal?

A   

It is automatically unfair for an employer to dismiss an employee for any of the following reasons:

employee’s participation in, or support of, a protected strike or protest action;

an employee’s refusal to do any work normally done by an employee who at the time, was taking part in a protected strike or was locked out, unless such work is deemed necessary to prevent  actual danger to life, personal safety or health;

the employee’s refusal to accept a demand in respect of any matter of mutual interest between the employee and the employer;

the employee’s action or intended action against an employer, by exercising any right conferred by the LRA or participating in any proceedings in terms of the LRA.

the employee’s pregnancy, intended pregnancy, or any other reason related to her pregnancy;

to dismiss an employee on any arbitrary ground such as race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.

an employee’s present or planned membership of a union or workplace forum, as well as an employee’s participation in the lawful activity of a trade union or workplace forum.

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