Forced to take leave when resigning

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giovannidc

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So a colleague of mine is resigning and has about a month of leave left. He was planning to work the remainder of his notice and then to use the holiday pay and take a few days to before starting at his new company. Today the company threw a curve ball and pretty much told him they not going to pay his holiday pay, but instead he must take his leave immediately. Its pretty messed up imho, and was wondering if that is even allowed and can he even fight it?
 
giovannidc said:
So a colleague of mine is resigning and has about a month of leave left. He was planning to work the remainder of his notice and then to use the holiday pay and take a few days to before starting at his new company. Today the company threw a curve ball and pretty much told him they not going to pay his holiday pay, but instead he must take his leave immediately. Its pretty messed up imho, and was wondering if that is even allowed and can he even fight it?
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Depends what his contract says, as far as I know.
 
giovannidc said:
So a colleague of mine is resigning and has about a month of leave left. He was planning to work the remainder of his notice and then to use the holiday pay and take a few days to before starting at his new company. Today the company threw a curve ball and pretty much told him they not going to pay his holiday pay, but instead he must take his leave immediately. Its pretty messed up imho, and was wondering if that is even allowed and can he even fight it?
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Illegal. You may not take any form of annual leave during your notice period.

http://labourman.co.za/can-an-employee-take-leave-after-giving-notice/

Section 20 – Annual leave – (5)(b) of the BCEA says that an employer may not require or permit an employee to take annual leave during any period of notice of termination of employment.
 
Doesn't seem to comply with the BCEA:

http://www.mondaq.com/southafrica/x/283720/Contract+of+Employment/Giving+notice+to+leave

The notice period to be served by the employee will affect the employee's annual leave._ in terms or section 20, an employer may not allow or require an employee to take leave during his notice period. This will result in the employer having to compensate the employee for any outstanding annual leave to which he may have been entitled at the end of his notice period.
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giovannidc said:
So a colleague of mine is resigning and has about a month of leave left. He was planning to work the remainder of his notice and then to use the holiday pay and take a few days to before starting at his new company. Today the company threw a curve ball and pretty much told him they not going to pay his holiday pay, but instead he must take his leave immediately. Its pretty messed up imho, and was wondering if that is even allowed and can he even fight it?
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Depends,

If he has a no compete clause, they might ask him to leave and serve his notice at home (Thus not being in contact with sensitive information and the likes) But they can not i repeat CAN NOT take his annual leave and allocate it to him for that period. They need to pay him out his annual leave days available on the day he served his notice. He is not allowed to take or be forced to take leave from his annual leave.

At our company if we resign we get what is referred to as "Garden Leave" fully paid 30 days at home compliments of the company :o
 
Last edited:
Sinbad said:
Illegal. You may not take any form of annual leave during your notice period.

http://labourman.co.za/can-an-employee-take-leave-after-giving-notice/

Section 20 – Annual leave – (5)(b) of the BCEA says that an employer may not require or permit an employee to take annual leave during any period of notice of termination of employment.
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This, taking leave during notice period is illegal (unless a special arrangement has been made with the employer.)

I had resigned last year from a company i was working at, they had changed the notice period clause in our contract without having us sign the amendment. I resigned on the 10th and they said nothing about my notice period changing, on the 10th in the following month they called me telling me my notice period was changed to a full calendar month, I went back to my signed contract and the clause was not there. i simply refused to serve the full calendar month, they didn't pay out my leave days but I didnt give a rats ass.
 
namzsteve said:
This, taking leave during notice period is illegal (unless a special arrangement has been made with the employer.)

I had resigned last year from a company i was working at, they had changed the notice period clause in our contract without having us sign the amendment. I resigned on the 10th and they said nothing about my notice period changing, on the 10th in the following month they called me telling me my notice period was changed to a full calendar month, I went back to my signed contract and the clause was not there. i simply refused to serve the full calendar month, they didn't pay out my leave days but I didnt give a rats ass.
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Even that is illegal... you would need to have an updated contract, or some proof that you've accepted the change in contract terms.
 
namzsteve said:
This, taking leave during notice period is illegal (unless a special arrangement has been made with the employer.)

I had resigned last year from a company i was working at, they had changed the notice period clause in our contract without having us sign the amendment. I resigned on the 10th and they said nothing about my notice period changing, on the 10th in the following month they called me telling me my notice period was changed to a full calendar month, I went back to my signed contract and the clause was not there. i simply refused to serve the full calendar month, they didn't pay out my leave days but I didnt give a rats ass.
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Your are entitled to go back and claim your leave.
 
If they want him to leave immediately they must still pay out both his notice and leave balance
 
The reason they gave for shafting him is that they can't afford to pay his holiday pay and so according to their lawyer they are allowed to do this. Told him not to sign anything, but it seems like he doesn't want to unnecessary fight
 
giovannidc said:
The reason they gave for shafting him is that they can't afford to pay his holiday pay and so according to their lawyer they are allowed to do this. Told him not to sign anything, but it seems like he doesn't want to unnecessary fight
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He should stay home and approach the CCMA. That way he stays home and they still need to pay him out his full leave :D
 
giovannidc said:
The reason they gave for shafting him is that they can't afford to pay his holiday pay and so according to their lawyer they are allowed to do this. Told him not to sign anything, but it seems like he doesn't want to unnecessary fight
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If I was you I would begin looking for a new job, company sounds as if it is sinking.
 
giovannidc said:
The reason they gave for shafting him is that they can't afford to pay his holiday pay and so according to their lawyer they are allowed to do this. Told him not to sign anything, but it seems like he doesn't want to unnecessary fight
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He must ask them to get in writing that they do not wish to comply with the Basic Conditions of Employment Act.
 
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