By Sanette Viljoen
If, for instance, a violent strike makes it impossible for a person to get to work, how does it affect that person’s vacation leave? The person has no control over the circumstances, so must they now sacrifice their leave?
Section 10(a) Basic Conditions of Service Act (Act75 of 1997) provides that employers and employees must agree on when the worker may take their annual leave. Section 10(b) further provides that should the parties not have an agreement, the employer may stipulate when the employee may take leave.
An employer may therefore legally instruct an employee to take leave during a period that suites the employer.
Many businesses force their employees to take leave over December when their businesses close for Christmas or when, for example, a factory closes for annual maintenance.
This practice may not be popular because employees like to decide for themselves when they want to take their leave, but this is by no means illegal.
Employers may therefore legally force their employees to take leave during a strike because the employer cannot use their services during that period.
The advantage is that the workers still get paid during their absence, but they do lose leave days. It would be unfair to force an employer to pay workers for a period that they cannot come to work but still to grant them leave at a later stage. Just as little as it is the employees’ fault that they cannot perform their duties because of a strike, just as little can an employer be held liable for financing the malpractices of a few striking workers.
The best option for a business would be to stay in contact with the employees and to try and make arrangements to get them to work safely, if possible, or otherwise to explain to the workers why it would be in their interests rather to take leave.