September 20, 2020

Is accumulated leave under Ghanaian law; and can leave be lost when it’s not taken? [Article]

Under Ghanaian labour law, every worker is entitled to holidays with pay or leave. Section 20 of the Labour Act, 2003 (Act 651) mandates a minimum of 15days leave with full pay for every worker in any calendar year of continuous service.

The floor of 15 days leave in each calendar year cannot be breached it can only be improved – the more the merrier. In practice, leave is arranged after consultations between the worker and the employer to ensure that the worker maximizes her or his holidays aligned with their social and cultural interests while the operations run as seamlessly as possible.

Once the leave schedule is agreed, barring issues of necessity from both sides that require some accommodation, the employer will enforce the schedule. The employer, as the one in control of the premises, policies and programs of the workplace is the most well placed to enforce compliance.

The legislative purpose of holidays with pay or leave is twofold. First, it protects the health and safety of the worker by addressing such issues as fatigue, stress, burn-out (and associated mental or psychosocial illness) and other social needs with rest and leisure. Secondly, evidence shows that a well-rested worker is more productive at the workplace.

There is an attendant benefit to the economy of increased productivity and increased consumption through leisure and domestic tourism for example – but that is a subject for another day.

Article 24 (1) and (2) of the Constitution of Ghana protects the health and safety of workers and assures us of rest, leisure and reasonable limits on working hours. Under international law, both Article 7 of 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) emphasize the point.

Leave is a right and workers are entitled to enjoy it without fear of it being taken away at their own instance or the instance of the employer1. The language of section 31 of Act 651 is plain. “Any agreement to relinquish the entitlement to annual leave or to forgo such leave is void.”

To determine an action void is to determine it as non-existent in law. The provision is unambiguous – an agreement to forgo or relinquish leave is void – not the leave itself. So under ghanaian law, no worker can forgo or relinquish or waive or omit to go on leave, i.e, leave days protected by law2 or collective agreement3.

That makes sense. Section 31 of Act 651 read properly will ensure that at all cost, the employer enforces compliance with leave entitlements of the worker. An interpretation that leads to forfeiture of leave will result in absurdity.

A fatigued or stressed worker is no less fatigued because he has waived or relinquished his leave. The fatigue or stress remains and it is only a reasonable period of rest that can take it away. In the same vein, less productivity resulting from a fatigued workforce is not improved by keeping them unrested. Meanwhile, the employer will be benefiting from the work of the fatigued, stressed and unhealthy worker albeit with less productivity and at
a health risk to the worker.

In practice, necessity may require that leave planned or being enjoyed is interrupted. The law anticipates under section 25 of Act 651 that where due to the exigencies of the work or necessity leave has to be interrupted or cannot be taken as scheduled “the worker shall not forfeit the right to the remainder of the leave but shall take the leave anytime thereafter…”. Again, the emphasis is that the leave will not be forfeited and section 26 of Act 651 ensures that the employer will reimburses the worker for the cost of interruption.

Again, the law makes sense. The power imbalance (crudely captured as a master-servant relationship) makes it imperative that the employer, who has power to determine the program, policies and discipline in the workplace ensures compliance.

It will avoid the situation where the employer, who stand to benefit from a worker neglecting to or being coerced not to take his leave, enforces the leave entitlement. In accordance with section 122 of Act 651, Labour inspectors are charged with ensuring that employers comply with this and other legal obligations.

As, I have stated elsewhere, “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.

Her or his right has accrued and damages or compensation is in order. The employer cannot benefit from his or her failure to enforce compliance and the worker cannot be punished with forfeiture or loss for neglecting, in good faith, to enforce a measure outside their control.

This situation should be distinguished from a situation where an employer or 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 will amount to fraud. 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”. To conclude;

1. The legally protected leave days in any calendar year of continuous service with full pay cannot be waived, omitted, forfeited, relinquished or voided by the worker.

2. The employer is under a legal obligation to enforce compliance in the employment relationship given the balance of power and as controller of the workplace including workplace program and policies.

3. Failure to enforce compliance will not extinguish the leave days or render them void or forfeited. The legally protected leave days, unable to be taken in good faith, will accumulate and must be taken in kind if possible or compensated for if impossible to take in kind. It is impossible to take only where the person is resigning, being terminated or pensioned.

The law is very protective of the right to holiday with pay or leave and rightly so. Public and private sector employers must enforce compliance.


Source: Business