Following on Part 1, do I continue with my explanation and interpretation of the Basic Conditions of Employment Act (BCEA) and looking this week into Chapter 3 which deals with the different types of leave in South Africa.
Again, I must do a disclaimer that this is general practice and there are several other industries and sectors who all have their own set of rules regarding these, however, the basic principles remain the same and accordingly do I address the general company and not those who are regulated by Bargaining Councils and Main – or Collective Agreement i.e., Construction, Mining, Private Security, Motor, Metal and Engineering, Private Cleaning, Retail and Wholesale etc.
In this article I will focus on the sections contained within Chapter 3 only, which include:
19. Application of this Chapter
20. Annual leave
21. Pay for annual leave
22. Sick leave
23. Proof of incapacity
24. Application to occupational accidents or diseases
25. Maternity leave
26. Protection of employees before and after birth of a child
27. Family responsibility leave (and Paternity leave)
Where the law is quoted, I will add my comments as to what I deem to be important in brackets (_) so that it is easy to differentiate between what the law prescribes and my own comments thereto.
Section 19 – APPLICATION OF THIS CHAPTER
Chapter 3 does not apply to an employee who works less than 24 hours per month. This would be a casual that you use for a specific purpose and pay at the end of the day. Normal domestic workers, who work 1 to 3 times a week, would work more than 24 hours in the month and thus would they be entitled to leave under Chapter 3.
Section 20 – ANNUAL LEAVE
(1) In this Chapter, “annual leave cycle” means the period of 12 months of employment with the same employer immediately following:
(a) an employee’s commencement of employment, or
(b) the completion of that employee’s prior leave cycle.
(2) An employer must grant an employee at least
(a) 21 consecutive days’ (or 15 or 18 working days’ – depending on whether the employee works a
5 or 6 day week) annual leave on full remuneration in respect of each annual leave cycle, or
(b) by agreement, 1 day of annual leave on full remuneration for every 17 days on which the
employee worked or was entitled to be paid (the second part would be more in cases of a fixed
term/ project based contracts where they do not work longer than 12 months/ annual leave
cycle and accordingly would not be entitled to the prescribed amount of days).
(3) An employee is entitled to take leave accumulated in an annual leave cycle in terms of subsection (2) on consecutive days.
(4) An employer must grant annual leave not later than six months after the end of the
annual leave cycle.
(5) An employer may not require or permit an employee to take annual leave during
(a) any other period of leave to which the employee is entitled in terms of this Chapter; or
(b) any period of notice of termination of employment.
(6) Despite subsection (5), an employer must permit an employee, at the employee’s written request to take leave during a period of unpaid leave.
(7) An employer may reduce an employee’s entitlement to annual leave by the number of days of occasional leave on full remuneration granted to the employee at the employee’s request in that leave cycle. (This never happens as no employee would agree to less days than legally entitled to).
(8) An employer must grant an employee an additional day of paid leave if a public holiday falls on a day during an employee’s annual leave on which the employee would ordinarily have worked.
(9) An employer may not require or permit an employee to work for the employer during any period of annual leave. (There are of course exceptions to this rule).
(10) Annual leave must be then
(a) in accordance with an agreement between the employer and employee; or
(b) if there is no agreement in terms of paragraph (a), at a time determined by the employer in
accordance with this section. (Annual leave is always subject to approval and permission but
cannot be unreasonably refused).
(11) An employer may not pay an employee instead of granting paid leave in terms of this section, except
(a) on termination of employment; and
(b) in accordance with section 40(b) and (c). (Annual leave is never sold, but should your contract
make provision works on the principle of “use it or loose it” and should the employee not take
leave as they feel they will then lose out on potential overtime, then so be it).
Section 21 – PAY FOR ANNUAL LEAVE
(1) An employer must pay an employee leave pay at least equivalent to the remuneration that the employee would have received for working for a period equal to the period of annual leave, calculated
(a) at the employee’s rate of remuneration immediately before the beginning of the period of annual leave: and
(b) in accordance with section 35. (Pay what the employee would have received for the days he/ she worked, had he/ she not been on leave – easy calculation).
(2) An employer must pay an employee leave pay
(a) before the beginning of the period of leave; or
(b) by agreement on the employee’s usual pay day.
(Normal practice would be usual pay day/ month end)
Section 22 – SICK LEAVE
(1) In this Chapter, “sick leave cycle” means the period of 36 months’ employment with the same employer immediately following
(a) an employee’s commencement of employment; or
(b) the completion of that employee’s prior sick leave cycle. (This works on a 3-year cycle and is not seen as x amount of days per year).
(2) During every sick leave cycle an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. (This is then either 30 days in the 3 years if the employee works a 5-day week, or 36 days if the employee works a 6-day week) .
(3) Despite subsection (2), during the first six months of employment. an employee is entitled to one day’s paid sick leave for every 26 days worked. (This is accumulation and to prevent the employee from using all his/ her sick leave in the first 6 months of employment and once that is depleted leave the employer. The formula works to the same amount of days as any other employee, but is less due to the time they have worked for the employer).
4) During an employee’s first sick leave cycle an employer may reduce the employee’s entitlement to sick leave in terms of subsection (2) by the number of days’ sick leave taken in terms of subsection (3).
(5) Subject to section 23 an employer must pay an employee for a day’s sick leave
(a) the wage the employee would ordinarily have received for work on that day; and
(b) on the employee’s usual pay day.
(6) An agreement may reduce the pay to which an employee is entitled in respect of any day’s absence in terms of this section if
(a) the number of days of paid sick leave is increased at least commensurately with any reduction in the daily amount of sick pay: and
(b) the employee’s entitlement to pay
(i) for any day’s sick leave is at least 75 per cent of the wage payable to the employee for the
ordinary hours the employee would have worked on that day, and
(ii) for sick leave over the sick leave cycle is at least equivalent to the employee’s entitlement in terms of subsection (2). (Following this route tends to complicate things unnecessarily and there is no real gain from it, only more paperwork and explanations and justifications).
Section 23 – PROOF OF INCAPACITY
(Finally – the part that all employers want to know)
(1) An employer is not required to pay an employee in terms of section 22 if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury. (Simply put – No Sick Note = No Pay)
(2) The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament. (The sick note must be signed by a doctor as only they meet all 4 requirements. Also, only doctors can diagnose and treat patients, while a nurse can only treat but not diagnose. Witchdoctors, Sangomas and the like do not meet these requirements under law so it does not have to be accepted – just be sure that your policy addresses same).
3) If it is not reasonably practicable for an employee who lives on the employer’s premises to obtain a medical certificate, the employer may not withhold payment in terms of subsection (1) unless the employer provides reasonable assistance to the employee to obtain the certificate.
Section 24 – APPLICATION FOR OCCUPATIONAL ACCIDENTS OR DISEASES
Sections 22 and 23 do not apply to an inability to work caused by an accident or occupational disease as defined in the Compensation for Occupational Injuries and Diseases Act, or the Occupational Diseases in Mines and Works Act, except in respect of any period during which no compensation is payable in terms of those Acts.
Section 25 – MATERNITY LEAVE
(1) An employee is entitled to at least four consecutive months’ maternity leave. (The law does not indicate that an employer must pay for same or even a portion of same, however should an employer opt to do so, they of course can).
(2) An employee may commence maternity leave
(a) at any time from four weeks before the expected date of birth, unless otherwise agreed; or (b) on a date from which a medical practitioner or a midwife certifies that it is necessary for
the employee’s health or that of her unborn child.
(3) No employee may work for six weeks after the birth of her child unless a medical practitioner or midwife certifies that she is fit to do so.
(4) An employee who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to maternity leave for six weeks after the miscarriage or stillbirth whether or not the employee had commenced maternity leave at the time of the miscarriage or stillbirth. (Nothing to add here except to allow the employee to grieve and mourn before returning to work).
(5) An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to
(a) commence maternity leave; and
(b) return to work after maternity leave.
(6) Notification in terms of subsection (5) must be given
(a) at least four weeks before the employee intends to commence maternity leave: or
(b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.
(7) The payment of maternity benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act.
Section 26 – PROTECTION OF EMPLOYEES BEFORE AND AFTER BIRTH OF A CHILD
(1) No employer may require or permit a pregnant employee or an employee who is nursing her child to perform work that is hazardous to her health or the health of her child.
(2) During an employee’s pregnancy and for a period of six months after the birth of her child, her employer must offer her suitable, alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment, if—
(a) the employee is required to perform night work as defined in section 17(1) or her work poses
a danger to her health or safety or that of her child; and
(b) it is practicable for the employer to do so.
Section 27 – FAMILY RESPONSIBILITY LEAVE
(1) This section applies to an employee
(a) who has been in employment with an employer for longer than four months; and
(b) who works for at least four days a week for that employer.
(This does not apply to Fixed term -/ project-based contracts shorter than 4 months, or employees who comes in to work less than 4 days per week).
(2) An employer must grant an employee, during each annual leave cycle at the request of the employee three days’ paid leave which the employee is entitled to take
(a) when the employee’s child is born (more on this at Paternity leave)
(b) when the employee’s child is sick; or
(c) in the event of the death of
(i) the employee’s spouse or life partner; or
(ii) the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild, or sibling. (This would typically be close family only).
(3) Subject to subsection (5), an employer must pay an employee for a day’s family responsibility leave
(a) the wage the employee would ordinarily have received for work on that day; and
(b) on the employee’s usual pay day.
(4) An employee may take family responsibility leave in respect of the whole or a part of a day.
(5) Before paying an employee for leave in terms of this section, an employer may require reasonable proof of an event contemplated in subsection (1) for which the leave was required. (i.e., funeral letter, death certificate, Doctor’s note etc)
(6) An employee’s unused entitlement to leave in terms of this section lapses at the end of the annual leave cycle in which it accrues. (principle of “use it or lose it” again)
(7) A collective agreement may vary the number of days and the circumstances under which leave is to be granted in terms of this section.
PARENTAL LEAVE – Own words, not quoted out of law
In terms of the Labour Laws Amendment Act, an employee is entitled to 10 days parental leave upon the birth of the employee’s child. Parental leave may also be applicable in circumstances where an employee legally adopts a child or when a child is placed by a court in the care of a prospective adoptive parent. In this regard one must consider the definitions of adoptive and prospective adoptive parents.
A “prospective adoptive” means:
“Adoptive parent” means a person who has adopted a child in terms of any law.
Based on the aforementioned it is evident that both male and female employees may qualify for parental leave, depending on the circumstances. If the employee however gave birth to the child, she would not qualify for parental leave. Such employee is entitled to 4 months unpaid maternity leave.
Female employees may however qualify for parental leave in circumstances where such employee is one of the adoptive parents or a prospective adoptive parent as per the definitions above. For the purposes of adoption leave, the child must be younger than two years of age.
Adoptive parental leave entitles one of the parents to 10 weeks consecutive unpaid adoption leave. If an adoption order is made in respect of two adoptive parents, only one may apply for adoption leave and the other for parental leave. The selection of choice may be exercised at the option of the adoptive parents.
Parental leave entitles an employee to 10 consecutive days’ leave (not 10 working days):
As indicated, such leave will be unpaid, and employees will therefore have to submit claims to the Unemployment Insurance Fund to qualify for payment during the periods of absence from work. Contributors will not be entitled to be paid from the Unemployment Insurance Fund for parental, adoption or commissioning parental leave if they were not employed and contributing to the fund during the 13 weeks prior to applying for such benefits.
Employees that entered in surrogacy arrangements with a surrogate mother will also be entitled to 10 weeks consecutive leave after the birth of the child. Where there are two commissioning parents to such a surrogacy agreement, one will qualify for ten days parental leave and the other for 10 weeks surrogacy leave. The selection of choice may be exercised at the option of the commissioning parents.
It is important to note that in order to qualify for the payment of parental leave benefits from the Unemployment Insurance Fund, a male employee will have to adduce proof of him being the father of the child by virtue of a birth certificate with his name and surname appearing on it.
A further requirement in terms of the Amendment Act is that an employee must notify his or her employer in writing of the date that such leave is to commence and when the employee will return to work. Such notice must be given one month before:
I do hope that this would clarify some issues regarding what is allowed and what is not, as well as how, why and for what an employee should be entitled to take leave as well as what would be required from the employee when applying for the different types of leave.
As always, please contact us if your organisation requires input or assistance on any labour-related matter. We are happy to help!
By Gerhard Kotzé
Member
SA Labour Help
