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As we approach the year end, there will be times when staff want to take leave, and also when establishments need as many hands as possible available to deliver service to be proud of. Avoid staffing crises and legal confrontations by making sure you, your managers, and staff are aware of how labour law affects what you can expect in terms of requesting, or refusing, leave and overtime.

Governing everything is the Basic Conditions of Employment Act (BCEA). This law has been around since 1997 but, since then, is still relatively misunderstood.

The act is also modified by agreements that affect whole sectors, such as the motor industry. This does not apply to hospitality and tourism but the Act’s conditions can be clarified or modified by the employment contract or written company policy you issue to employees. Even if you are a small establishment with just two or three employees, this is legally expected of you.

This month’s questions look at some of the most common flashpoints around leave and overtime. All of these can be solved with the three Ps – policy, process and planning:

Q: December is really busy for our business, can I force staff to work overtime?

A: Expecting staff to work overtime is considered reasonable if you give enough notice. Requesting employees on a Thursday to work over a weekend is too late to be considered reasonable, unless you have a genuine crisis on your hands. Generally, the request should be made by Tuesday at the latest to respect the employees’ right to organise their personal or home life. Late bookings happen so often in the hospitality and tourism industry that you can reasonably be expected to have a plan in place for this. The best solution legally is to have a standby roster worked out months in advance so that staff can plan around the possibility that they might be called in.

Q: My chef just told me he wants to go on leave tomorrow and we have had a big function planned for months. Can I stop him?

A: No, unless you have made it clear in your employment contract or company policy that a set period of notice must be given ahead of taking leave, or that no more than five days’ leave can be taken at a time, for instance. Otherwise, the Basic Conditions of Employment Act gives the employee the right to decide when and how much accumulated leave to take.

Similarly, if the employee booked leave back in June for December but you now find yourself fully booked, it is considered reasonable that the employer should make a plan, such as hiring temporary staff. Otherwise, essentially, you are making your problem, and lack of planning ahead, into the employee’s problem, and wanting to infringe his or her rights, which the law takes a dim view of. You could try negotiate a compromise, such as two or three days in December, but you cannot force this.

Q: I’m confused about how many days’ leave my staff are entitled to – please help!

A: Entitlement to annual leave relates directly to how many hours and/or days staff work in a week. Staff working a five-day week usually accumulate 1.25 days’ leave per month worked, adding up to a total of 15 days leave a year. Staff working a six-day week, which can be quite common in the hospitality and tourism sectors, offset their longer hours with more leave. So they accumulate 1.75 days’ leave per month worked, totaling 21 days leave a year. Remember, when you are working out your leave chart that Saturday and Sunday do not count as working days for five-day staffers, but one of these days will count as a standard working day for six-day staffers. For more detail on other configurations of working hours, go to: http://www.labour.gov.za/DOL/legislation/acts/basic-conditions-of-employment

The busy year-end is not likely to be the best time to introduce or modify company policy and/or staff rosters, but if you hit a problem, make a note in your calendar to deal with the issue early in 2018. That way you stand a better chance of freeing the leave experience from misunderstanding and resentment.

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