Mmegi

Leave forfeiture is illegal -Court

INNOCENT SELATLHWA Staff Writer

Year in year out, companies especially in the private sector, force their employees to forfeit their unclaimed leave days. But the Gaborone Industrial Court has ruled that the practice is illegal because it is the responsibility of the employer to grant leave days.

This came to the fore following a case in which Karabo Lekgasa had taken his former employer, Security Services (Pty) Ltd over unpaid leave days. The case was heard last year by Justice Isaac Bahuma of the Industrial Court.

According to court papers, on February 15, 2021 Lekgasa filed a claim for payment of leave days against his erstwhile employer Security Services Botswana. The claim was opposed by the respondent by way of filing a statement of defence on February 28, 2021.

“On April 29, 2021 the parties attended a status hearing where at a trial date of June 3, 2021 was agreed upon. On the agreed trial date, the respondent did not attend court and no reason was provided. After hearing Lekgasa’s evidence, the court made an order that the company pay him the sum of P5,670 as leave pay. On June 11, 2021 the respondent filed an application for “reinstatement of the case”. An affidavit in support of the application was also filed. Ordinarily the application ought to be dismissed outright since an application for “reinstatement of case” where a default judgement has been granted is incompetent. However, since ours is a court of equity alive to the shortcomings of self actors, I shall treat this application as an application for rescission of judgement which it ought to be,” Justice Bahuma stated.

Justice Bahuma added that in this case the application for rescission was made well within the 30 day period contemplated by Rule 30. He said the reason for not attending court as reflected in the affidavit was that the company’s representative was on sick leave on the hearing date. “A certificate from a medical practitioner in support of the allegation has been filed for record. The reason for the applicant’s default is reasonable and the court so finds”.

Justice Bahuma stated that the question that the court had to address is whether the employer has “a bona fide defence which carries some prospects of success.

“The defence proffered by the employer in this case is that they do not deny that applicant did not go on leave but that all leave days accrued have been forfeited in terms of Section 98 of the Employment Act. The argument advanced by the employer is that the applicant did not take leave as contemplated by the above provisions and he is therefore a victim of his own negligence. A reading of Section 98 (2) of the Employment Act reflects that the duty to grant leave rests on the employer hence the use of the phrase, “Every employer shall grant leave to every employee,” he highlighted.

Justice Bahuma pointed out that the employer has discretion to grant or not grant leave depending on the labour requirements of the establishment. He said what the Act seeks to do in his view, is to regulate the rights of the employer to grant leave and protect those of the employee to be granted leave.

“That is why the Act is specific as to when leave should be granted and such provisions are in mandatory terms. The protection of the employee’s entitlement to leave is demonstrated further by the inclusion of Section 98 (9) of the Act which reads thus; “An employer who contravenes this section shall be guilty of an offence and liable to the penalties prescribed by Section 151 (b),” he further stated.

Justice Bahuma held that the use of the word shall in Section 98 is intended to compel the employer, in mandatory terms, to grant the employee leave in the terms subscribed. He said through the reading of Section 98 of the Act, it will be noted that it does not provide for forfeiture of leave anywhere.

“In my view therefore, since the duty to grant leave rests on the employer, they cannot claim that leave is forfeited when the failure of the employee to take it was due to their own failure to grant it in terms of the mandatory terms of the Act” he said. Justice Bahuma emphasised that leave is a primary right of an employee, and designed inter alia to protect the employee from abuse by way of being made to work endlessly by profit seeking employers. He said leave is intended to provide the employee with an opportunity to rest and or have time to attend to their private affairs.

“Leave is earned, it is not granted gratuitously by the employer. In my view if it was the intention of the Legislature that leave not taken by an employee under the circumstances envisaged by Section 98 of the Employment

Act be forfeited, the Legislature would have stated so in clear and unambiguous terms,” he said.

Justice Bahuma said given that leave is an entitlement which is earned, he holds the view that an interpretation of Section 98 of the Employment Act that seeks to forfeit leave earned by an employee through months of hard work does not resonate with the provisions of Section 26 of the Interpretation Act. He said such an interpretation with respect is not for public good nor is it a fair and liberal construction of Section 98 of the Employment Act. “The question that arises next is whether leave not taken should be allowed to accumulate? The answer in my view is yes. The reason for this is that, as the Act says, the duty to grant leave is on the employer. If the employer does not grant the employee leave in terms of Section 98 and thereby allows leave to accumulate, such an employer has only themselves to blame.

Such leave cannot be forfeited thereby denying an innocent employee their right to leave and by extension benefiting the employer by free labour. It is not the intent of the Act that the employee should accumulate leave ad infinitum that is why the employer is compelled, twice, by the use of the word “shall” and the penalty provision under Section 98 (a) to grant leave. But where, despite these safeguards the employer allows leave to accrue it, cannot be intention of section 98 that such leave be forfeit,” Justice Bahuma indicated.

He added that in this case, Security Services relies solely on the interpretation of Section 98 that applicant’s leave is forfeit. “In the absence of any other ground upon which their defence is based, the Court makes a finding that the defence is not bona fide. There are no reasonable prospects of success in the main case even if rescission is granted. Consequently the application for rescission of judgement is dismissed,” he concluded.

Court

en-bw

2023-03-17T07:00:00.0000000Z

2023-03-17T07:00:00.0000000Z

https://enews.mmegi.bw/article/281668259209329

Dikgang Publishing