September 23, 2020

Re: Leave is lost when you don’t take it; nothing like accumulated Leave exists – Austin Gamey

I read your news item with the above lead written by Jessica Ayorkor Aryee and thought I needed to correct the impression left on the reader by Mr. Austin Gamey – a respected Labour consultant in Ghana – that an employee’s Leave will be forfeited or lost if not taken within the calendar year and that it cannot be accumulated.

I disagree with Mr. Gamey on this. Leave or holidays with pay is generally a health and safety issue – it is also a productivity issue – and therefore an important employment relations and workplace matter.

This is made clear when one reads article 24 (1) and (2) of the Constitution of Ghana together with section 20, 25, 26 and 31 of the Labour Act, 2003 (Act 651). These matters are also provided for under relevant articles in the International Covenant on Economic, Social and Cultural Rights as well as the Holidays with Pay and Working Time jurisprudence of the International Labour Organization (ILO).

The other strong takeaway from reading these laws is that leave is a right. Workers are entitled to it. Therefore, the government is under a legal duty to protect and ensure the fulfillment of this right and employers are obliged under law to put in place policies and procedures for workers to enjoy their Leave entitlements. This is reasonable – the employer is in control of the workplace and the work schedule of the worker.

In a normal country, the government will ensure that labour inspectors enforce this right armed with dissuasive sanctions. Good corporate or institutional governance will also require that both public and private institutions or corporations have systems to supervise and monitor the enjoyment of this entitlement by workers.

In practice, the employer (whether private or public) manages the leave schedule to ensure that production or work does not unduly suffer. With such powers of control, it is impossible for the worker to proceed on leave without the direction of the employer. On the other hand, it is possible for a worker intent on proceeding on leave to be stopped from doing so and would oblige for fear of losing her/his job.

Clearly, the enforcement of leave entitlement is the obligation of the employer. The worker cannot at the same time be punished, by forfeiture or loss of leave days, if the employer fails to enforce the leave entitlement.

Therefore, in the situation where a worker has accumulated leave and is still in employment, the worker would be entitled to her or his accumulated leave. Where the worker is at the end of her or his employment, the accumulated leave would be converted into cash as compensation or damages for denial of the worker’s leave entitlement. As I have already indicated, in a normal country, the employer will be sanctioned with a monetary penalty for the breach which will go to resource labour administration services in the country.

In sum, the worker cannot suffer for the wrong of the employer and the employer cannot benefit from his own wrong.

A legitimate question arises where the employer or an employer representative, in control of the workplace, fails to enforce leave allotted to her or him with the aim of benefiting financially from such failure. That situation will amount to perpetrating fraud on the business since he/she was the one in control of the workplace and is obligated to enforce the leave entitlement.

Fraud vitiates everything and therefore such an officer, if on her or his way out, will forfeit the financial compensation or damages. However, if the officer is still in employment, then s/he must be made to take the leave entitled.

Editor, my reaction here is not to address the raging constitutional, administrative and labour law implications of the recent actions of the President of Ghana directing the Auditor – General to proceed on leave based on the precedent of a former President. My intention is to erase any impression created by Mr. Austin Gamey that workers who do not take their leave will forfeit or lose it. That will be against the law. The law as I see it is more nuanced than that.


Source: Business