Article by listed Attorney: Nanika Prinsloo
The Basic Conditions of Employment Act, Act 75 of 1997 (the BCEA), regulates employment agreements between employers and employees. Read our other article on general concepts of the Basic Conditions of Employment Act .
This article will discuss two of the things that the BCEA regulates, namely leave. Read our other articles on the BCEA and Working Hours
There are four types of leave: annual-, sick-, maternity- and family responsibility leave. If an employee works less than 24 hours per month, he or she is not entitled to leave. The BCEA determines that the employer and employee can contract about the leave of the employee and override the determinations of the BCEA, but if they do, they BCEA will not apply to them. Let’s take a closer look at the periods and payments of the different types of leave.
Each employee is entitled to 21 consecutive days’ of leave for every completed year worked. This must be at full pay. The employer and employee can agree upon this to change the leave taken. If they so agree, the employee can rather take one day of annual leave for every 17 days worked – this must also be a fully paid day. The employer and employee can also agree that the employee will take one hour of annual leave on full pay for every 17 hours worked.
The BCEA only says that the leave must be taken not later than six months after the end of a year worked, but other than this requirement, the Act is silent on when the leave can be taken. Unless otherwise agreed, the employee can carry his leave not taken forward to the next year. The employer cannot force an employee to take leave during a period which the employee would have been entitled to (for example family responsibility leave cannot be regarded as annual leave). This also means that the employer cannot give an employee notice to terminate his services, but then use force the employee to take his leave during the notice period. The employer will have to pay the employee for the leave pay.
If an employee’s leave falls on a Public Holiday, and the employee would not have ordinarily worked on that Public Holiday, then the employer must give the employee and extra days’ paid leave for that Public Holiday. An employee may not worked during his annual leave period. If the parties have a written service agreement that determines how much and when the employee must take leave, then the employer must allow the employee to take such leave. If an employee has resigned or his services has been terminated, then the employer may pay the employee for the leave period and the employee does not have to work that leave period. If the employee has not resigned or if his services has not been ended, then the employer may not refuse to let the employee take leave and then pay her instead – the employer must allow the employee to take leave.
The employee must be paid the same amount of his or her salary for the period that the employee is on leave. The employee may not pay the employee less for this holiday period. Leave pay must be paid before the leave starts but, if the parties so agree, may be paid to the employee on the employees normal pay day. The employee will normally receive his or her salary on the last payday before the leave is taken.
Employees who work 5 days a week, is entitled to 30 days’ leave for every 3 years of work. Or otherwise put – an employee is entitled to paid sick leave equal to the number of days an employee normally works during a period of six weeks. During the first six months of employment however, the employee may take one days’ sick leave for every 26 days worked, so during the first six months the sick leave one can take is less. If an employee is on sick leave for longer than prescribed sick leave, then the employer does not have to pay the employee for the period of extra sick leave taken. Any sick leave not taken falls away and is not carried forward to the next period.
The employee must receive the salary or wage that the employee would have received, had the employee worked that day. The employer and employee can however negotiate about the days taken, provided that if it is agreed that the employer can reduce the pay of the employee, then the number of sick days must be increased. The employee must receive at least 75% of his or her ordinary wage.
If an employee is absent from work for longer than 2 consecutive days or on more than two occasions during an 8 week period, then the employer is entitled to ask the employee for a medical certificate from a medical registered doctor. This certificate must clearly set out the reasons why the employee was unable to work and the dates that the employee could not work. If the employee does not or cannot produce a medical certificate as set out above, then the employer does not have to pay the employee for the days off.
The BCEA determines that an employee is entitled to at least four consecutive months of maternity leave. The employer cannot end her services and she must be paid according to a sliding scale of benefits as determined by the Unemployment Insurance Act 2001. According this scale, the less an employee earns, the greater percentage of her wage must be paid during maternity leave.
The time that an employee can take off for maternity leave, is the following:
· She can take leave at any time from four weeks before the expected date of birth or
· She can take leave at a date which a medical practitioner or midwife has certified will be the time to take maternity leave in the interest of the employee’s health or the health of the child.
· No employee may work for six weeks after the birth of her child, unless a medical practitioner or midwife has certified that the employee is fit to work.
· If the employee has a miscarriage or bears a stillborn child, then she can still take six weeks’ maternity leave after the miscarriage or stillbirth.
The employee who wants to take maternity leave must inform the employer in writing of the date on which she intends to take the maternity leave and when she intends to return to work. This notice in writing must be given at least four weeks before she intends to take the maternity leave. If she is unable to give the notice timeously, (four weeks before) then she must do so when it is possible and reasonable for her to do so.
The employee will not be allowed to perform any work that is dangerous to her or her child’s health whilst she is pregnant or whilst she is nursing a child. If she normally performs hazardous or dangerous work, her employer must offer her other, safer or easier employment for a period of six months after the birth of her child. The terms and conditions of her employment may not be changed. The type of “hazardous” work we are looking at is night work, or any type of work that poses a danger to her or the child’s safety.
Employees are only entitled to family responsibility leave if they have been in the employ of the same employer for longer than four months and who work at least four days a week. Once a year during each annual leave cycle, the employee is entitled to take three days paid leave for:
· A child of the employee born (father )
· When the child of the employee is sick or
· When the employee’s spouse or life partner, parent, adoptive parent, grandparent, child, adopted child, grandchild or sister or brother dies.
An annual leave cycle will not necessarily be from January to February. In other words, if an employee started to work for the employer in April of a year, his annual leave cycle will be for the period of April to March of the following year and not from January to December. During that leave cycle from in our example April to March, the employee can take three days family responsibility leave.
The employee must be paid the same wage that the employee will normally receive for any other normal day of work. The employer can demand that the employee gives him proof of the reason why he or she wants to take family responsibility leave. Any of the days of family responsibility leave does not get carried over to the following year and if not taken in any year, lapses.
This article written by Nanika Prinsloo of Prinsloo and Associate Attorneys.
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