Section 20 5(B) of the Basic Conditions of Employment Act states that the employer may not require the employee to use his/ her annual leaves during the period of notice, following the termination of employment for whatever reasons. Given this clause, the employees are not entitled to leave during the notice period in South Africa.
However, despite these conditions, employers are subjected to making payments for the unused accumulated leaves in the employee’s credit. Hence, the employee will still receive their due compensation on full remuneration.
What is the BCEA Notice Period?
Now that we know you won’t get paid during the notice period, it is important to understand how long the notice period is according to the Basic Conditions of Employment Act. Here are some things outlined in BCEA regarding the notice period.
- If the employee has been working for six months or less, their notice period would be one week.
- If the employee has been working for more than six months but less than a year, their notice period would be two weeks.
- If the employee has been working for one year or more, their notice period is also four weeks.
- The notice period for farm workers and domestic workers employed for more than six months is also four weeks.
Please note that the notice period can be longer than this, as mutually agreed by the employee and employer. This is because BCEA only indicates minimum conditions for work and notice period duration. Hence, the parties are free to agree to an extended notice period according to their employment contract.
The Gardening Leave Situation during the Notice Period
However, gardening is one situation where leave is permissible during the notice period. Simply put, garden leave is when a senior employee is leaving a job role and is restricted access to a job hunt by the employer. In return, he/ she is entitled to full salary during the notice period, as allocated by the employer.
The intention of the Garden Leave is to keep these employees out of the job for the longest time, so the company can safekeep its confidential and proprietary information. During the notice period of the garden leave, the employment agreement still exists between both parties. Here are some requirements from both sides regarding the gardening leave.
- The employer must pay the employee his/ her full salary and contractual benefits during the notice period.
- The employee must be available throughout the notice period. They must also not seek employment opportunities in the marketplace.
Final Words
In conclusion, according to BCEA, employees are not entitled to leave during their notice period, even if they have unused leave days in their credit. However, certain conditions like gardening leave demand the employer to make payments for the leave days.