Is this something I can take to the CCMA ? [SORTED]

[Crabby]

Hi all

I have been working at a company for the past 14+ years. I have been asking for additional leave for the past 5 years as with our 15 days, it doesn't cover the Xmas shutdown year-end and we always end up in the negative or being forced to take unpaid leave which bites over the festive season.

Speaking to a colleague about it at the beginning of the year, he mentioned that he got additional long service leave since 2015/2016. So now I'm a little peeved, so I mail my manager on Monday asking him what the criteria are and why it gets applied seemingly randomly. If it is long service leave, then they can go ahead and apply it to my entire team who qualify for it, and they can then backdate it and either add it to our current leave or pay us out for it.

I got a response a day later from HR saying that the criteria is 5-9 yrs gets +3 days and 9+ years gets +2 additional days. Please check your leave balances and confirm that it shows correctly and they are applying it across the board for all employees.

The catch? It's effective 1 Jan 2020...

I'm now under the impression that they've been caught out with their bullshit and quickly covered it up by implementing updates to the leave system.

I am currently waiting on a response from them as to what criteria was used prior to 2020 and why they aren't backdating it in line with the other employees who got additional leave.

Knowing the company, they will give me some spiel about why my team hasn't qualified for the same leave as others, even though all of us have been at the company 5+ years.

By my calculations, I'm owed an additional 21 days leave and I would like that to be paid out.

Does anyone have any advice for me on the next steps I can take, if any? Can I take this to the CCMA as a discrimination case or something similar?

What would you do in my position?

TIA

 

[R4ziel]

@KingAuthor Can you share your opinion on this please, need the experts advice

 

[KingAuthor]

@KingAuthor Can you share your opinion on this please, need the experts advice

Got it

 

[KingAuthor]

@KingAuthor Can you share your opinion on this please, need the experts advice

It is sad that someone asked a genuine question and you decide to take it as a joke. Why not maybe hep him/her out?

 

[R4ziel]

It is sad that someone asked a genuine question and you decide to take it as a joke. Why not maybe hep him/her out?

I am not familiar with any HR processes around leave at all, rather than giving him an uninformed answer which will not help him, I decided to get the HR expert here to advise on the situation as you would be more familiar with the leave accrual and HR processes since you seem to be gathering knowledge about leave and employee processes

 

[KingAuthor]

I am not familiar with any HR processes around leave at all, rather than giving him an uninformed answer which will not help him, I decided to get the HR expert here to advise on the situation as you would be more familiar with the leave accrual and HR processes since you seem to be gathering knowledge about leave and employee processes

Yeah right. You were being sarcastic, how sad.

Hopefully someone will truly try to help him out.

 

[Kosmik]

Hi all

I have been working at a company for the past 14+ years. I have been asking for additional leave for the past 5 years as with our 15 days, it doesn't cover the Xmas shutdown year-end and we always end up in the negative or being forced to take unpaid leave which bites over the festive season.

Speaking to a colleague about it at the beginning of the year, he mentioned that he got additional long service leave since 2015/2016. So now I'm a little peeved, so I mail my manager on Monday asking him what the criteria are and why it gets applied seemingly randomly. If it is long service leave, then they can go ahead and apply it to my entire team who qualify for it, and they can then backdate it and either add it to our current leave or pay us out for it.

I got a response a day later from HR saying that the criteria is 5-9 yrs gets +3 days and 9+ years gets +2 additional days. Please check your leave balances and confirm that it shows correctly and they are applying it across the board for all employees.

The catch? It's effective 1 Jan 2020...

I'm now under the impression that they've been caught out with their bullshit and quickly covered it up by implementing updates to the leave system.

I am currently waiting on a response from them as to what criteria was used prior to 2020 and why they aren't backdating it in line with the other employees who got additional leave.

Knowing the company, they will give me some spiel about why my team hasn't qualified for the same leave as others, even though all of us have been at the company 5+ years.

By my calculations, I'm owed an additional 21 days leave and I would like that to be paid out.

Does anyone have any advice for me on the next steps I can take, if any? Can I take this to the CCMA as a discrimination case or something similar?

What would you do in my position?

TIA

You can raise an internal grievance if the company leave policy is documented prior to that date. Then you could escalate it but keep in mind its not a BCEA breach but a contractual breach between employer and employee as they have not applied the stipulated policy. Regardless of them claiming its effective now for your staff, if there is a company-wide documented policy predating that, that states the additional accrual, you have the right to ask for it to be backdated.

 

[Neuk_]

Is it legal for a company to force you to take more than your annual allocated leave?

 

[KingAuthor]

Is it legal for a company to force you to take more than your annual allocated leave?

Like when you have 10 annual leave days but the company forces you to take 13 days?

 

[Neuk_]

Like when you have 10 annual leave days but the company forces you to take 13 days?

Yes.

 

[KingAuthor]

Yes.

The company cannot dictate how many annual leave days you can take when you want to take annual leave unless if it is due to operational reasons, but the operational reason issue must not be a frequent excuse - must happen only once or twice.

But why wouldn't you want to take more leave days than allocated? Do they deduct them in the next leave cycle?

 

[Neuk_]

The company cannot dictate how many annual leave days you can take when you want to take annual leave unless if it is due to operational reasons, but the operational reason issue must not be a frequent excuse - must happen only once or twice.

But why wouldn't you want to take more leave days than allocated? Do they deduct them in the next leave cycle?

I don't have this issue but the OP states that he is forced in to negative leave to make up for the shortfall.

 

[ArmatageShanks]

Even if you can take it to the CCMA, would you?

Your future at the company would not be bright if you did.

 

[Crabby]

You can raise an internal grievance if the company leave policy is documented prior to that date. Then you could escalate it but keep in mind its not a BCEA breach but a contractual breach between employer and employee as they have not applied the stipulated policy. Regardless of them claiming it's effective now for your staff, if there is a company-wide documented policy predating that, that states the additional accrual, you have the right to ask for it to be backdated.

Thanks Kosmik, I have raised it internally. I'm now dealing with the HR manager, but still waiting for a response on certain questions I have. I will have to source a recent policy doc and have a look and compare it to the new policy doc that specifies this leave. I don't recall seeing it in previous policy docs otherwise I would have tried to enforce it earlier. It seems to me that this was not official policy, but something that certain people allowed to happen based on current office politics and brown-nosing.

The company cannot dictate how many annual leave days you can take when you want to take annual leave unless if it is due to operational reasons, but the operational reason issue must not be a frequent excuse - must happen only once or twice.

But why wouldn't you want to take more leave days than allocated? Do they deduct them in the next leave cycle?

For reference, we get 15 days accrued leave a year, plus any carry over from the previous year. We are currently contracted out to a company that has operational shut down over Xmas that ranges from 10 -18 days depending on the year. We are forced to take the operational shut down leave. If we have taken ANY leave during the year, it then forces us into the negative over Xmas. The negative is at the sole discretion of the manager. If that negative > -5 or the manager decides we don't warrant it, then we are forced into unpaid leave over Xmas.

If we are in the negative at the start of the year, then due to accrual, we only end up in the positive by March or April and the cycle repeats itself as we already have less leave, and we know that we need to keep as much as we can for the end of the year. It's a deep pit that we can never get out of unless we take absolutely no leave except for year-end, and even then, we might not have enough due to client decisions.

 

[Crabby]

Even if you can take it to the CCMA, would you?

Your future at the company would not be bright if you did.

My future at this company has been strained for a few years now. I'm already black marked to the point where I don't receive increases. That is unlikely to change this year, so me taking up an issue with the CCMA isn't going alter much. If they use that as an excuse to attempt something, then I think the CCMA will have an even bigger field day with them.

If they could just find something to pin on me that they could use to get rid of me, they would of already, and then there is the fact that I'm one of the clients golden boys, so have a very small level of security in that they wouldn't want to piss off a major client of theirs.

Yes, I should be looking to move, but I enjoy the client, and really, the only thing I need from my parent company is equitable leave and a decent salary every month that the client pays anyway. Further than that, I couldn't care less about interacting with them.

 

[Smokey888]

My future at this company has been strained for a few years now. I'm already black marked to the point where I don't receive increases. That is unlikely to change this year, so me taking up an issue with the CCMA isn't going alter much. If they use that as an excuse to attempt something, then I think the CCMA will have an even bigger field day with them.

If they could just find something to pin on me that they could use to get rid of me, they would of already, and then there is the fact that I'm one of the clients golden boys, so have a very small level of security in that they wouldn't want to piss off a major client of theirs.

Yes, I should be looking to move, but I enjoy the client, and really, the only thing I need from my parent company is equitable leave and a decent salary every month that the client pays anyway. Further than that, I couldn't care less about interacting with them.

Why don't you try and get a job at the client?

 

[Kosmik]

Companies with shutdown periods normally stipulate the period and estimated days that should be kept aside to cover them. It's perfectly legal to my knowledge and they will use unpaid leave if an employee is short. However, this scenario is slightly different as the shutdown period is greater than the normal BCEA allotment of leave days so not 100% sure how that would work, its also based off a third parties shutdown, not the actual employers.

 

[KingAuthor]

Thanks Kosmik, I have raised it internally. I'm now dealing with the HR manager, but still waiting for a response on certain questions I have. I will have to source a recent policy doc and have a look and compare it to the new policy doc that specifies this leave. I don't recall seeing it in previous policy docs otherwise I would have tried to enforce it earlier. It seems to me that this was not official policy, but something that certain people allowed to happen based on current office politics and brown-nosing.



For reference, we get 15 days accrued leave a year, plus any carry over from the previous year. We are currently contracted out to a company that has operational shut down over Xmas that ranges from 10 -18 days depending on the year. We are forced to take the operational shut down leave. If we have taken ANY leave during the year, it then forces us into the negative over Xmas. The negative is at the sole discretion of the manager. If that negative > -5 or the manager decides we don't warrant it, then we are forced into unpaid leave over Xmas.

If we are in the negative at the start of the year, then due to accrual, we only end up in the positive by March or April and the cycle repeats itself as we already have less leave, and we know that we need to keep as much as we can for the end of the year. It's a deep pit that we can never get out of unless we take absolutely no leave except for year-end, and even then, we might not have enough due to client decisions.

See this

“Some businesses also implement an annual shutdown, which sees the company closing (typically between Christmas and New Year) completely so that no one is able to work. Consequently, staff are forced to take leave during this time.”


In such an instance, the employer is entitled to stipulate that annual leave must be taken to coincide with the shutdown period. Should an employee take their annual leave at another time during the year, then the shutdown period will be treated as unpaid leave.


“Irrespective of the strategy employed, companies must do everything in their power to encourage their employees to take their annual leave. Not only is it beneficial for the individual and limits the possibility of burnout, it also mitigates financial risk for the business,” Myburgh concludes.

http://www.hrpulse.co.za/editors-pick/237431-managing-staff-leave

 

[KingAuthor]

Companies with shutdown periods normally stipulate the period and estimated days that should be kept aside to cover them. It's perfectly legal to my knowledge and they will use unpaid leave if an employee is short. However, this scenario is slightly different as the shutdown period is greater than the normal BCEA allotment of leave days so not 100% sure how that would work, its also based off a third parties shutdown, not the actual employers.

True.

The maximum days that an employee can accrue is 15 days in an annual leave cycle, yet the company can at most shutdown for 18 days. So it's not possible to accumulate 18 days in the annual leave period, unless they have a more favourable agreement.

 

[Crabby]

I don't really have too much issue with the fact that we have to shut down. There have been years where it's worked out for everyone, and others that ended up with unpaid leave.

I'm happy to manage my own leave in this regard.

The issue I have is that I could have had an easier time managing my leave if it was applied fairly across the board. This they have now addressed, as of yesterday, I (and my staff) do have 20 days leave that can accrue this year, which makes a massive difference.

This effective 1 Jan 2020 is what I am complaining about. I was forced to take unpaid leave, unfairly in my opinion if I was given the leave due to me, the same way leave was given to other people. I took a financial hit, and I expect a financial return if they backdate it to ensure employee equality.

Why don't you try and get a job at the client?

As an old white man, I don't qualify. They get around their BEE requirements by contracting us instead.