Public Service and Administration Director-General, Ms Yoliswa Makhasi has issued a circular on the payment of annual leave to employees who resigned and reappointed in the same or another government department without a break in service.
In the circular sent out to Heads of national and provincial departments as well as provincial administrations, Ms Makhasi said it is deemed prudent to issue guidelines to assist departments to deal with the payment of annual leave decisively.
Director-General Makhasi said currently, there is a trend in the public service, where employees who got an employment offer from the same or another department within the public service choose to resign from their current position prior to starting work in the new position without taking a break from their previous employment.
She said on resigning, employees invoke the provisions of paragraph 9.1 of the Determination and Directive on leave of absence in the public service and demand payment for any unused annual leave credits that are still available at the time.
Code of Conduct
Ms Makhasi said adherence to the Code of Conduct requires employees to notify the employer when they receive an employment offer from the same or another department within the public service, resulting in a transfer or appointment without a break in service.
Failure to inform the employer, the Director-General said would constitute a breach of the Code of Conduct, potentially leading to sanctions as per the disciplinary code and procedure.
�In adhering to the provisions of the Code of Conduct employees is under obligation to inform the employer if they received an employment offer from the same or another department within the public service which will result in them transferring or being appointed without a break in service.
�If an employee does not advise the employer it will amount to a breach of the Code of Conduct which may lead to a sanction in terms of the disciplinary code and procedure,� she said.
Policy provision
Paragraph 5 of the Determination and Directive on Leave of Absence in the Public Service, read with the applicable collective agreements of the Public Service Co-ordinating Bargaining Council (PSCBC) stipulate that:
- Employees are entitled to annual leave during each cycle of 12 months, commencing 1 January of each year.
- Annual leave should be planned and scheduled at least at the start of a leave cycle, i.e January of each year.
- The utilisation of this leave must take the service delivery requirements of a department into account.
- The remaining days, if any, must be taken no later than 6 months after expiry of the relevant leave cycle where after unused annual leave credits shall be forfeited.
PSCBC Resolution 7 of 2000 stipulate in clause 7.2 (a) state that the cash value of unused annual leave credits is payable at termination of service.
Furthermore, clause 7.1 (d) of the resolution stipulate that �if due to the employers service delivery needs leave is not taken, such leave must be paid out at the end of the 18-month period�.
�Section 14A of the Public Service Act, as amended, determines that an employee of a department who is appointed in terms of section 9 of the Act in another capacity in the same or another department or transferred in terms of section 12(3) or 14 of the Act shall be deemed to continue employment in the public service without any break in service,� she said.
In respect of annual leave, paragraph 13 of the Determination directs that � 7.1.1 �an employee retains all his/her annual leave credits, when he/she is transferred within or between departments, due to him/her at that point in time.
The utilisation of these leave credits are subject to the provisions of this Determination and Directive.� If an employee transfers to an occupational class to which a different leave category applies, he/she adopts the new leave category for that occupational class.
Ms Makhasi said the employee will retain the leave credits due to him/her of the old occupational class, adding that the utilisation of these leave credits is subject to the provisions of this Determination and Directive.
�The provisions in paragraphs 13.1 and 13.2 apply mutatis mutandis in the case of employees who are appointed on contract and who secures a permanent appointment in the Public Service and vice versa.
�In respect of sick leave, paragraph 18.5 of the Determination directs that an employee retains his/her sick leave credits in respect of a particular sick leave cycle, when the employee is transferred within a department or between departments or is appointed in terms of the Public Service Act, without a break in service,� she said.
However, if a break in service of less than 12 months occurred, section 84 of the Basic Conditions of Employment Act, 1997 as amended, read with paragraph 31.3 of the Determination comes into effect.
�In other words, for purposes of determining the length of an employee�s employment with an employer for purposes of the provisions of section 84 of the said Act, previous employment with the same employer must be considered if the break between the periods of employment is less than 12 months.
�In such instances, at re-employment, the employee�s annual leave entitlement must be determined according to the provisions outlined in paragraph 31.3 of the Determination.
�It must be noted that employees who resign and did not secure an appointment or transfer to another department without a break in service, are entitled to have their unused annual leave paid out in accordance with paragraph 9.1 of the Determination,� she said.
Policy Application
Therefore, since such an employee is deemed to continue employment in the public service, Ms Makhasi said no pay-outs of annual leave benefits must be effected.
She said such an employee retains his/her annual and sick leave credits, as provided for in paragraph 13 and 18.5 of the Determination, that the employee continues with his/her annual leave benefits in the same/new employing department.
�The yielding department must take the necessary steps to recover the overpaid amount from the employee.
�The receiving department must recalculate the employee’s leave credits in accordance with Section 5(7) of the Public Service Act, 1994,� she said.