In the battle of annual leave versus ‘always-on culture’, which will prevail?   

There’s a Japanese word for ‘death caused by overwork’. Karoshi describes someone who works such long hours that they drop dead from heart failure, or stroke on the job. This cultural phenomenon used to be unique to Japan, but it’s now happening across the globe – potentially also in South Africa, where the Covid pandemic amplified remote/hybrid work and an ‘always on’ work culture.  

“More and more, we hear about employees finding it hard to switch off completely, even when on their statutory annual leave,” says Melissa Cogger, a partner at Bowmans law firm, who specialises in employment and data protection law. She explains that while employees and employers have been adapting to the ‘anywhere, always-on’ workplace, they still have to abide by South Africa’s labour laws that regulate working hours and annual leave. The law is meant to avoid trends “where employees take less annual leave, or are tempted to work while on leave, and ultimately forfeit annual leave that is not taken on time,” she says.  

When to take leave?  

You must take annual leave no later than six months after the annual 12-month leave cycle, otherwise you forfeit it. “This use-it- or-lose-it provision is intended to ensure that employees do take the annual leave to which they are entitled,” says Melissa. “The rationale is that employees need a certain amount of time to rest and recharge, and to immerse themselves in their personal and family lives.”  

The law is meant to avoid trends where employees take less annual leave, or are tempted to work while on leave, and ultimately forfeit annual leave that is not taken on time

That’s why you can’t have your statutory annual leave paid out (only on termination of employment). Some employees do allow you to cash out on any accumulated leave that’s above the statutory minimum (15 days).  

“Many employers deal with the timing of annual leave in terms of their policies and procedures, including forced shutdowns or specific periods when employees should take leave and how far in advance leave should be applied for,” says Melissa. But what if several employees want to take leave on the same dates – during school holidays, for example? Is leave approved on a ‘first come, first served’ basis? No, says Melissa. “If multiple requests are received, the employer has discretion on which employee should have preference, taking into account the operational requirements. Any exercise of discretion must be fair, rational and justifiable, and must not amount to differentiating employees on prohibited grounds such as race or gender.”  

Who gets leave?  

In the case of multiple overlapping leave requests, the decision on who should be granted the leave should be based on whether:  

• a specific employee is required to be present in the workplace during a busy season due to operational requirements;
• a department has sufficient cover during the period of annual leave;
• any employees have recently taken leave; 
• the request for leave is in relation to the current leave cycle or from a previous leave cycle which may be forfeited if not taken;
• there are any personal circumstances motivated by an employee. 

The right to relax  

Employers need to record annual leave, and remind staff not to forfeit their leave and to schedule their leave requests well in advance. Options for employees who are denied annual leave without valid reason include: raising an internal grievance with their company’s HR team; turning to their trade union; going to the Commission for Conciliation, Mediation and Arbitration; or filing a complaint with the Department of Labour.  

It’s crucial to know your rights so you can switch off and recharge before you are at risk of burnout. While we’re not like France, where companies with 50+ employees may not digitally contact employees after hours, South African employers are paying more attention to employee wellness and mental health. Ultimately, everybody benefits when the workforce is better rested, productive and not at risk of karoshi.  

By: Silke Colquhoun
Photos: Gallo/Getty Images