Do I get paid for unused leave when I leave a job?

Yes. Annual leave that you have accrued and not taken must be paid out to you when your employment ends. The Basic Conditions of Employment Act 75 of 1997 (BCEA) requires it, and it makes no difference whether you resigned, were dismissed for misconduct, or were retrenched.

What is not paid out is unused sick leave and unused family responsibility leave. Those are entitlements you use if you need them, not a savings account.

How much annual leave you should have

The BCEA gives you at least 21 consecutive days of annual leave on full pay for each annual leave cycle of 12 months. For someone working a normal five day week, that works out to 15 working days a year. For a six day week it is 18 working days.

An employer can give more, and many do. It cannot give less. Your contract, a workplace policy or a bargaining council agreement may improve on the minimum.

Leave accrues as you work. If you leave part way through a cycle, you are entitled to the leave that has built up for the period worked, less anything you have already taken.

What must be paid out

On termination your employer must pay you:

1. Any leave that accrued in the previous completed cycle and that you did not take.
2. Leave accrued in the current, incomplete cycle, worked out proportionally for the time you actually worked.
3. Anything more generous that your contract or a collective agreement provides.

This sits alongside the rest of your final payment: your salary to your last day, notice pay if applicable, and severance if you were retrenched. See What is the notice period when you resign? and Can my employer retrench me without paying severance?.

How the payout is calculated

The payment must be at the rate of your remuneration, worked out immediately before the employment ended. In practice most employers calculate a daily rate and multiply it by the number of days owed.

The important point is that "remuneration" is not always only your basic cash salary. Regular allowances and payments in kind can form part of it. If you receive a fixed monthly transport, housing or cell phone allowance, ask for it to be included and ask your employer to show you the calculation in writing.

Ask for a written breakdown of your final payslip. It should show the number of leave days paid, the daily rate used, and how that rate was reached.

Leave you cannot be forced to give up

Two rules protect your leave.

No forfeiture. Your employer may not require or permit you to forfeit accrued annual leave. A policy that says "use it or lose it by 31 December" cannot be applied to take away leave you are legally entitled to, though an employer can require you to take leave at a particular time.

No payment instead of leave while employed. While you are still working, the BCEA does not allow annual leave to be replaced with a cash payment. The idea is that leave is for rest, not for topping up your salary. The exception is exactly this situation: on termination the outstanding leave is paid out.

Your employer can, however, require you to take leave at a time that suits the business, and can require leave to be taken within a set period after the cycle ends.

Can leave be set off against notice?

Annual leave and notice may run at the same time only by agreement. Your employer cannot unilaterally decide that your four week notice period will be "taken as leave" so that no leave payout is due. If you agree to it, that is a different matter, so be careful what you agree to in the exit meeting.

Notice may not run at the same time as sick leave.

What about sick leave, maternity leave and family responsibility leave?

• Sick leave. The BCEA gives you, over a three year cycle, the number of days you would normally work in a six week period. Unused sick leave is not paid out and does not carry over beyond the cycle.
• Family responsibility leave. A limited number of days a year for specified family events. Unused days fall away and are not paid out.
• Maternity, parental and adoption leave. These are periods of leave rather than accruing balances, and there is no cash payout for unused entitlement. Payment during the leave usually comes from the Unemployment Insurance Fund, and the Unemployment Insurance Act 63 of 2001 governs those benefits.
• Study leave, birthday leave and similar perks. These come from your contract or policy, not the BCEA, so whether they are paid out depends entirely on what that document says.

If your employer does not pay

Start in writing. Ask for a breakdown and give a short, reasonable deadline. Keep the correspondence.

If that fails, all of these routes are free:

• The Department of Employment and Labour. Its inspectors enforce BCEA entitlements such as leave pay, notice pay and severance. This is often the fastest route for a straightforward money claim.
• A bargaining council, where one covers your sector.
• The CCMA on 0861 16 16 16. Referring a dispute is free.

Take your contract, payslips, leave records and the termination letter with you. If your employer never kept leave records, that usually counts against them, because keeping those records is the employer's legal duty.

For a claim about the fairness of the dismissal itself, remember the separate 30 day deadline to refer an unfair dismissal, explained in how to refer an unfair dismissal to the CCMA.

If you cannot afford advice, Legal Aid South Africa is on 0800 110 110.

Before you sign anything

Employers sometimes present a final settlement that lumps everything into one figure and includes a full and final release. Once you sign that, going back for the leave money is difficult. Ask for the breakdown first, check it against your own leave record, and only then decide.