Leave is often times a sore subject to discuss within the employee-employer relationship.  The employee wants to be able to be absent from work, with sufficient reason, and not be replaced whereas the employer needs to protect his business interests and is also faced practically with the workload of an absent employee.  Where is the balance?

The South African legislature has tried to set the bar for this balance in the Basic Conditions of Employment Act.  “Basic” is an indication though that this is a minimum requirement for both employee and employer and it should be interpreted as such.  Leave is often used as an added incentive to accept an offer of employment or as reward for service excellence and dedication, which is completely legal in terms of the Act.  Regardless of the agreement between employee and employer the basic requirements, as set out below, must always be met:

The different forms of leave and their minimum requirements:

1. Annual Leave

An annual leave cycle is defined as a 12 month period starting on the date of employment.

In an annual leave cycle the employee is entitled to:

  • 21 consecutive days on full pay, regardless of the number of normal working days that fall into that period.
  • 21 consecutive days equates to 15 working days for an employee that works 5 days a week, and 18 working days for an employee that works 6 days a week.

Annual leave is accrued at a rate of 1 day for every 17 days worked, or 1 hour for every 17 hours worked.

If a public holiday falls in the period of annual leave it can not be deducted as annual leave.

If an employee falls ill during the leave period and can produce sufficient proof (like a medical certificate) that he or she was medically unfit to perform their duties on that day, annual leave should be changed to sick leave for the period that the employee was ill.

Annual leave can not be deducted simultaneously as any other type of leave, ie sick leave, maternity leave or family responsibility leave.

Annual leave can not be taken during the employee’s notice period.

The only reason that an employer may pay out leave days which have accrued to an employee is upon termination of the employment contract whether by resignation, dismissal, retirement or death of the employee.

Barring an agreement with different terms an employer may not refuse an employee’s leave application if the employer is not able to show good cause, the employer may under no circumstance stipulate a maximum amount of days an employee is allowed to take in a consecutive period where the employee is not surpassing the amount of days accrued to them.

Where an employer closes their offices for a period in December the employer may stipulate that their employees’ leave coincide with this period.  Should the employee not have sufficient leave the balance of days required can be treated as unpaid leave.

An agreement between an employee and their employer may increase the amount of leave or more strictly govern the process of applying and receiving leave, however the regulations of the Basic Conditions of Employment Act are only applicable to the employees basic entitlement as set out above.

2. Sick Leave

Unlike annual leave sick leave does not accrue and is not owed to an employee, in other words sick leave can not be paid out if the employee has not utilised it over the course of employment.

An employee that works 5 days in a week is entitled to 30 days sick leave in a 3 year cycle while an employee that works 6 days a week is entitled to 36 days in a 3 year cycle.  This entitlement can be broken down to 1 day sick leave for every 26 days worked.

The 1 day for every 26 days worked rule is applied to:

  • The first 6 months that an employee works for an employer.
  • Any employee that works more than 24 hours in a month.
  • A temporary employee (including seasonal employees).

If sick leave is taken for more than 2 consecutive days the employer may require the employee to produce a medical certificate.

An employee who resides on business premises and can not be expected to easily reach a medical professional may not be required to produce a medical certificate if the employer did not provide reasonable assistance to the employee to visit a medical professional.

What is a valid medical certificate or sick note?

According to the Basic Conditions of Employment Act the following needs to be stated on the certificate:

  • statement that the employee was unable to work
  • the period from which and to which the employee was deemed unable
  • a reason for the absence ie illness or injury
  • the identification and signature of the medical practitioner (who is registered with a professional council established by an Act of Parliament)

3. Family Responsibility Leave

This leave is only available to employees who have been with their employer for longer than four months, and work at least four days a week.

If this is the case three days of paid leave is allowed to the employee per annual leave cycle in one of the 4 following situations:

  • their child is born,
  • their child falls seriously ill or gets hurt seriously,
  • their spouse or life partner passes away, or
  • the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling passes away.

The amount of remuneration should be equal to the amount for a normal working day and should be paid in the normal fashion.

The employee may take portions of the leave if required (half day, etc) but the balance of three days lapses at the end of the annual cycle.

4. Maternity Leave

 An employee is entitled to a minimum of four consecutive months of unpaid maternity leave, which she may commence:

  • at any time from four weeks before the expected birth date, or
  • a date certified by the employees medical practitioner or midwife for the safety of the employee and her unborn child

The employee is not allowed to work for six weeks after the birth of her child unless certified to be fit to do so by her medical practitioner or midwife.

In the event of a miscarriage or stillbirth during the third trimester of pregnancy the employee is still entitled to leave for six weeks after the date, regardless of whether the employee had commenced her maternity leave before the date.

The employee is required to notify the employer in writing of the date she intends to commence her maternity leave as well as the date that she means to return to work.  She must do so at least four weeks prior to the first day of her maternity leave, or the soonest that it can reasonably be done within the four week period.

A note for the employee, benefits must be applied for with the UIF as soon as you go on maternity leave.

5. Unpaid Leave

There seems to be a bit of a misunderstanding when it comes to section 34 of the Basic Conditions of Employment Act whether an employer may deduct amounts for unpaid leave from their employee’s salary without authorisation from the employee.  The main reason for this misunderstanding is that when looking at Section 34 the reader needs to keep in mind the definitions applicable to the Act as a whole.

The specific terms of definitions that need to be kept in mind are found in the definitions of remuneration and wages, which is money paid or payable to an employee in turn for that person working for another or literally for hours of work.  Where an employee is a person that works for another and is entitled to receive remuneration for their effort.

In terms of the above unpaid leave is not a deduction.  An employee is paid for work done and not paid for work not done therefor an employer will not be breaking the guidelines of Section 34 by not paying these amounts.

Unpaid leave steps in where:

  • An employee takes more normal leave days than he or she has annual leave available within a leave cycle.
  • An employee fails to produce a valid sick note or medical certificate if required to do so by the Act or agreement with their employer.
  • An employee uses more than his entitled amount of sick leave in a three year cycle.
  • An employee uses more than their entitled amount of family responsibility leave within a particular cycle.

In essence a situation where the employee and employer have no agreement that the employee will receive full remuneration from the employer and the employee has no entitlement to leave which they can use instead of taking unpaid leave.

6. Public Holidays

So often forgotten by leave guides, but it is none the less not going to work yet expecting fair remuneration.

According to the Act an employer may not require an employee to work on a public holiday unless the two parties make an agreement to the contrary.  The employee must be paid their normal remuneration for a working day or, if the employee works on the public holiday, the larger amount of double their normal rate or their normal rate plus remuneration earned on the day.

If the employee is a shift worker and a smaller part of a single shift falls on the public holiday the employee is deemed to have worked on an ordinary business day.

Public holidays may not be deducted from any other employee’s leave entitlement, this includes occurrences where government announces that a day following or preceding the actual holiday will also be a public holiday.

It is critical to keep in mind that, regardless of what is stated above, an employer and employee can agree to terms much different to the above, verbally or through the employment contract.  Certain industries also have standards which are different than, but still follow, the Basic Conditions of Employment Act prescriptions.  Make sure that you know your situation and how it measures up to the above.