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Labour Matters Davies Ndumiso Sibanda
ONE of the most problematic things to manage for employers is vacation leave and its mismanagement results in protracted disputes with workers.The Labour Act grants each employee a minimum of 2.5 days per month which translates into 30 days per year.

The law allows a worker to accumulate up to a maximum of 90 days or put in another way three years vacation leave. When counting vacation leave we also count Saturdays, Sundays and Public holidays, for example if an employee takes vacation leave on a Friday and comes back on the following Monday, three days will be counted as having been taken having counted the Friday, Saturday and Sunday.

Employers and workers can agree to have workers given more days than 30 per annum, that would be an internal arrangement.

There is however a “special basket” or type of vacation leave days which do not accrue from length of service or monthly accrual but originate from converting overtime into vacation leave days. These vacation leave days cannot be housed together with the ordinary vacation leave days as their origin is different.

The conversion of overtime to days is guided by the total overtime hours which are divided by the hours that make the working days.

For example, in most industries overtime earned during the week is calculated at one and half times the normal rate and where an employee works on a public holiday or rest day its double the rate.

Simply put, for example, where an employee  who works 8 hours a day, and he works for a day during a public holiday he shall be paid for sixteen hours and converted to days he shall get two days vacation leave.

There are some employers and employees who have made internal arrangements to use working days for calculation of vacation leave days.

Such arrangements benefit workers who go on vacation leave during months that have public holidays during the week use the holidays will not be counted.

Usually those who work a five day week as 22 working days and the monthly accrual rate is 1.8333.

Those who work a 6 day week use 26 working day translation to 2.1666 days per month. Where internal calculation of vacation leave is done there is a need to clearly explain to the workers and to ensure that workers are not short-changed.

On reaching 90 days, vacation leave cease to accrue, however where there is evidence that the worker was requesting vacation leave and the employer was refusing, the law will be in the worker’s favour and the employer will be found guilty of unfair labour practice and be ordered to pay and grant the worker vacation leave.

However vacation leave that originates from overtime has no limit as in case of a dispute the law will go into the origins of the overtime and ensure fairness exists.

The principles of fairness expect that after the employer has converted overtime to days workers will be granted some time off. Conversion of overtime to days for NEC graded employees must be guided by NEC collective bargaining agreement if one is in place.

While vacation leave is every employee’s right, it is taken at the discretion of the employer having balanced the interests of the worker and those of the business.

The employer is reasonably expected to allow each employee at least one month to rest at the end of each year of service.

One of the biggest challenges for employers is workers who apply for cash in lieu of leave.

In the current economic environment many workers find it useful to cash some days in order to augment their salaries that cannot go round.

Where the employer can afford it, it is a useful method to reduce the financial leave provision but it denies workers a chance to rest.

Employers need to manage cash in lieu of leave in a responsible manner.

Leave days are paid out at current rate not the rate at which they were accrued and as such they can be a drain on revenue meaning that leave days have to be carefully managed so as to manage negative financial exposure.

For fixed term contract workers and casual workers, the employer has to be clear on how the question of leave days is managed.

Some include cash in lieu of leave with monthly wages while other accounts for vacation leave separately.

In some industries casual workers’ wages are automatically inclusive of vacation leave.

Employers need to know that all employees are entitled to vacation leave irrespective of the nature of the contracts.

Denying employee vacation leave is unlawful and can prove very costly to a business or organisation.

Major problem areas are farms, non-governmental organisations, churches and rural shop owners who believe they can either have gentlemen’s agreement or intimidate workers into accepting working without taking leave or being paid cash in lieu of leave.

In conclusion, where parties are not sure on how to manage and calculate vacation leave they have to seek appropriate legal advice.

Davies Ndumiso Sibanda can be contacted on: e-mail:[email protected] or cell 0772 375 235.