This question is not easy to answer or to explain. It can be confusing unless the provisions of the Basic Conditions of Employment Act (BCEA) are very carefully read and considered.
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.
This is interpreted to mean that an employee cannot take leave when he has tendered his resignation and when working his notice period. The converse also applies in that if the employer terminates the employment with notice, the employee also cannot take leave during that notice period.
Section 37 – Notice of termination of employment – (5)(a) of the BCEA says that notice of termination of a contract of employment given by an employer must not be given during any period of leave to which the employee is entitled and (5)(b) not run concurrently with any period of leave to which the employee is entitled, except sick leave.
Section 37(5)(a) is interpreted to mean that the employer may not terminate employment of an employee while the employee is on annual leave, maternity leave and family responsibility leave. This is because by law the employer must follow a fair procedure and have substantive or good reason to terminate the employee’s employment. The employer cannot comply with the law in terms a procedural and substantive fair dismissal, when the employee is on leave.
Section 37 (5)(b) is interpreted to mean that an employer cannot give notice to an employee of termination of employment alongside (or parallel to) any period of leave, except sick leave. This therefore means that an employer can give notice to an employee of termination of contract of employment when the employee is on sick leave or, otherwise interpreted, that if the employer has given notice to the employee, and the employee becomes sick during the period of notice, then the notice of termination of employment is permissible.
However, employers usually do not allow employees to take annual leave during their notice period. This is often set out in an employee’s contract of employment or in the employer’s policies and procedures. This is to ensure continuity of business and a smooth hand-over. An employee can be allowed to take leave so he does not have to report to the workplace during his notice period, if the employer likes to. However, the employer must confirm that the employee has requested the leave and that the employer has granted it in writing.