Types of Leave
The Basic Conditions of Employment Act, section 19 onwards in Chapter 3, covers employee’s rights with respect to all types of leave. The provisions regarding all types of leave do not apply to employees who work less than 24 hours per month.
These conditions also apply to domestic employees. The employee is entitled to 15 working days per annum on full pay. The Act states “21 consecutive days” (section 20 (2) (a) of the Act) and reference to a calendar will show that 21 consecutive days is 15 working days based on a 5 day week, or 18 working days based on a 6 day week. Therefore those employees who work a 6 day week are fortunate because they actually score 3 days over their “5 day week” compatriots. Public holidays which fall within a period of annual leave are additional to the annual leave entitlement.
Accrual or accumulation of annual leave.
Contrary to popular belief, the Basic Conditions of Employment Act does not stipulate that annual leave must be taken within 6 months of the end of the cycle in which it accrues. What at the Act does stipulate is that should the employee submit a request to take annual leave due to him/her upon expiry of the 6 month period then the employer may not refuse to grant that request for leave.
Put differently, the Act does not stipulate that the employee must take the leave but it stipulates that should the employee submit a request to take the leave (after the expiry of the 6 month time period) then that request may not be refused.
It should be noted that the Act does not prohibit the accumulation of annual leave, which means then that employees may accumulate annual leave for any period of time, provided they do not contravene the employer's Annual Leave Policy.
Therefore all employers should have in place and Annual Leave Policy, which regulates the accumulation of annual leave, placing limits on the amount of annual leave that may be accumulated and stipulating when the annual leave may/must be taken (having regard to annual shutdown and so on.)
Employers should note also that they cannot impose a "use it or lose it" policy on employees. Nowhere does the Act state that employees must take the leave within a stipulated period or after expiry of a certain time period, and nowhere does the Act state that if employees do not take annual leave within certain periods, then the employee shall forfeit that leave.
For the employer to impose forfeiture condition on the employee would be imposing a condition on the employee that is less favourable to the employee than the leave conditions stipulated in the Act, and therefore it is unenforceable.
Any annual leave already accumulated to the employee's credit is his/her legal entitlement and the employer has no authority or legal basis to deprive the employee of that legal entitlement. The employer may also not "purchase" annual leave from the employee, and may not pay the employee out for any annual leave except upon termination of the employment contract for any reason.
Annual leave can be taken at any time provided it is first agreed with the employer. This means that the employer has the right to refuse any application for leave if it is not suitable at that time for the employee to take leave. For example, many companies close down over Christmas, and employees must take their leave at that time and are not permitted to take leave at any other time. (section 20 (10) of the Act)
However, any occasional leave that may be granted is deductable from the annual entitlement.Whilst on annual leave, the employer may not require or permit the employee to undertake any work for the employer. Annual leave may not be substituted in place of sick leave, maternity leave or family responsibility leave
Entitlement to accrue annual leave.
By prior agreement with the employer, the employee may accumulate leave at the rate of 1 hour for every 17 hours worked or for which the employee was entitled to be paid, or 1 day for every 17 days worked or for which the employee was entitled to be paid, or 1, 25 days per month.
The Act entitles the pregnant employee to four months unpaid maternity leave. It further stipulates that the maternity leave must commence not later than four weeks before the expected date of birth of the child and of the employee may not return to work for six weeks after the birth of the child. Of these stipulations may be changed with the prior written approval of the employee’s medical practitioner or midwife.
Maternity leave is to certain extent related to annual leave, in respect of the question "does an employee continue to accrue annual leave whilst on a period of maternity leave?" he first concerned maternity leave and the accrual of annual leave, specifically does annual leave continue to accrue to an employee who is absent from the workplace on maternity leave?
The answer is simple - yes, annual leave does continue to accrue to the credit of that employee. It seems that employers are inclined to read into the act, conditions that do not exist. In the question under consideration, the employer states that the employee is not working, so why must she accrue annual leave?
Well the answer is quite simple. If you read section 20 of the BCEA carefully, you will see that nowhere does it state that the employee must actually be working in order to accrue annual leave.
It states that the employer must grant to an employee at least 21 consecutive days annual leave on full remuneration in respect of each annual leave cycle, and it goes further to define a leave cycle as a period of 12 months in employment with the same employer immediately following an employee's commencement of employment, all the completion of that employees prior leave cycle.
It is clear then that the accrual of annual leave is dependent upon a period of employment of 12 months with the same employer - it is not dependent on whether the employee actually attends the workplace or not.
When an employee is on maternity leave, the employment contract is not changed in any way at all - the employee is merely exercising her legal entitlement to four months unpaid leave (whether the employer pays a salary for the duration of, or for part of, the maternity leave, is of no consequence)
Thus the employment conditions and the requirement to fulfill a twelve-month leave cycle remain unchanged - although on unpaid leave, the employee is still employed by the employer and the 12 month leave cycle is not broken. The only thing the employee is not doing is actually physically attending the place of work. Therefore the annual leave continues to accrue during the period of maternity leave.
A sick leave cycle is a period of 36 months employment with the same employer immediately following the date of commencement of employment, or the completion of the prior sick leave cycle. During the first 6 months of employment, the employee is entitled to 1 day sick leave for every 26 days worked. On the first working day of month number 7, the balance of the 30 days becomes available to the employee, less any days taken sick during the first 6 months of employment.
The amount of the sick leave entitlement is a number of days that the employee would ordinarily have worked during a six-week period. In other words, if the employee works a 5-day week then it is 30 days sick leave in each leave cycle or every 3 years, or a 6-day week would result in 36 days sick leave a every 3 years.
At the end of every 3-year cycle, any sick leave remaining untaken or unused is forfeited, and the next cycle begins with a fresh balance of 30 days or 36 days as the case may be. In instances where the employee is absent for more than 2 consecutive working days, meaning absent on 3 consecutive days or more, the employer is entitled to require proof of the illness or incapacity which caused the employees absence from work.
Note that absent on a Friday and a Monday is not “consecutive days”. It is 2 separate occasions, and the employer cannot demand proof of incapacity in such circumstances. Likewise, if an employee is off sick on the day before or the day after a public holiday, the employer is not entitled to request proof of incapacity.
If the employee is absent on 3 consecutive working days or more, or is absent on more than 2 occasions (remember a Friday and a Monday is 2 separate occasions) during the same 8 week period, then the employer is entitled to demand proof of incapacity. If such proof is not produced on demand by the employer, then the employer is entitled to treat the days absent as unpaid leave.
The proof of incapacity may take the form of a medical certificate issued and signed by a medical practitioner or any other person who is entitled to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament.
Certificates issued by Traditional Healers, Sangomas, “Witch Doctors” etc are not presently acceptable. Absence where the employee was treated by one of the aforegoing should be treated as annual leave or unpaid leave.
Annual leave may not be substituted for sick leave and sick leave is in addition to any other leave entitlement. Sick leave, however, is not in addition to a period of notice of termination of the employment contract.
Family Responsibility Leave
Employees who have been in employment with the same employer for more than 4 months and who work for the same employer for at least 4 days per week is entitled to 3 days Family Responsibility Leave full pay per annum, with the exception of Domestic employees whose entitlement is 5 days.
Family Responsibility Leave is in addition to any other leave entitlement and any unused portion lapses at the end of each year and is not accumulative. Family Responsibility Leave applies when the employees child is born, when the employees child is sick, or in the event of the death of the employee’s spouse or life partner, or the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.
The employee may take Family Responsibility Leave as a part of a day or a whole day. The employer is entitled to demand proof of the event in respect of which the Family Responsibility Leave is requested, such as a death certificate or medical certificate or certificate issued by the hospital.
The employer should bear in mind that in the majority of cases, such proof may only be available upon the employee’s return to work and employer’s should be reasonable in that regard. Note that the illness of an employee’s spouse does not qualify for Family Responsibility Leave. Family Responsibility Leave is in addition to any other leave entitlement.
Labour legislation is silent on the matter of study leave, and therefore in the purpose of Labour Law, study leave does not exist. This is a matter for arrangement entirely between the employer and the employee, and is the employer stipulates that study leave must be deducted from the employees annual leave entitlement or be taken as unpaid leave, then that decision must apply.
Leave for religious holidays
Labour Law does not to regulate leave for religious holidays. At present the situation is that should an employee wish to take leave for the purpose of religious holidays other than an official public holiday, then the employee must take paid annual leave or unpaid leave. Any paid annual leave taken will be deductible from the employees annual leave entitlement.
Annual leave entitlement
The Act states that the provisions for annual leave do not apply to an employee who works less than 24 hours per month for an employer, and also these provisions do not apply to leave granted to an employee in excess of the entitlement allowed in terms of the BCEA.
An annual leave cycle is a period of 12 months with the same employer, calculated from the employee's commencement of employment, or from the completion of that employees previous leave cycle. The entitlement is 21 consecutive days annual leave on full remuneration, in respect of each annual leave cycle, and if an employee works a five-day week then this is equal to 15 working days, or if the employee works a six-day week then it is equal to 18 working days.
In other words, whatever number of working days falls within the 21 consecutive days, is the number of working days on full pay that the employee must be granted for annual leave purposes.
Calculation of accrual of leave – 1,25 days per month or 1,5 days per month.
If the employee is working a five-day week, then the annual leave will accrue at the rate of 1,25 days per month, and if the employee is working a six-day week then the annual leave will accrue at the rate are of 1,5 days per month.
Calculation of accrual of annual leave – 1 hour for every 17 hours worked .
An alternative method of calculating annual leave has been provided for in the Act, and it would seem that the intention of the legislator, in providing this alternative method of calculation, was to provide for an easy means of calculating the annual leave for temporary employees, or fixed term employees.
This method makes provision that the annual leave may be calculated on the basis of one hour of annual leave on full remuneration for every 17 hours on which the employee worked, or was entitled to be paid, or it can be calculated on the basis of one day annual leave on full remuneration for every 17 days on which the employee worked or was entitled to be paid.
This method of accrual may only be applied by agreement with the employee. If there is no such agreement, then the employer is obliged to apply the accrual at the rate are of 1,25 days or 1,5 days monthly, as the case may be.
Public holidays falling during a period of annual leave.
Should a public holiday fall during a period whilst an employee is on annual leave, and the public holiday falls on the day on which the employee would ordinarily work, then the employee is entitled to an extra day annual leave for each such public holiday.
When may annual leave be taken?
The employee is entitled to take whatever leave he has accumulated in an annual leave cycle, on consecutive days. This means that if an employee has, for example, accumulated 11 days during an annual leave cycle, he is entitled to take those 11 days consecutively, and the employer may not refuse him permission to take those 11 days consecutively.
Annual leave not taken during an annual leave cycle is automatically carried over to the next annual leave cycle, unless there exists any agreement to the contrary.
Section 20 (4) BCEA (Employer forced to grant leave)
Should the annual leave be carried over from one cycle to the next, and the employee has still not taken his annual leave from the previous cycle within six months of the new cycle, then the employee can demand to take that annual leave from the previous cycle, and the employer may not refuse such permission.
This is the only condition under which an employer is forced to grant annual leave upon request by the employee. The employer may not require (force) or permit (allow) an employee to take annual leave during any other period of leave to which the employee is entitled.
This means for example, that if an employee is on annual leave, and he falls ill during that period of annual leave, he can visit the doctor and if the doctor certifies that he is unfit for work for a certain period of time, then upon that employees return to work from annual leave he can hand the medical certificate to the employer, and the employer must credit that employee’s annual leave with the number of days sick leave, and debit the employee's sick leave.
This also means that if an employee has sick leave days available to his credit, the employer cannot force the employee, nor can he allow the employee, to utilise annual leave instead of taking sick leave.
Annual leave during a period of notice.
The employer may not force and employee to take annual leave during any period of notice, and the employee is prohibited from taking annual leave during any period of notice.
Who decides when annual leave can be taken?
Section 10 makes provision that the employee and the employer must agree on when annual leave can be taken, and if there is no agreement, then annual leave is taken at the time to suit the employer.
Can I exchange may annual leave for cash?
The employer is prohibited by section 20 (11) from paying an employee for annual leave except upon termination of employment.
Annual leave and shutdown.
Many employers have a shutdown period over December. If this is the case, the employer is entitled to stipulate that annual leave must be taken to coincide with the shutdown period. Should an employee utilize his annual leave at another time during the year, then the shutdown period will be treated as unpaid leave.
Sick leave entitlement
The sick leave entitlement is the number of days that an employee would normally work during a six week period, in every three-year cycle, calculated from the first day of employment.Therefore, if an employee works a five-day week, then six weeks would equate to 30 days, and the employee would therefore be entitled to 30 days sick leave on full pay in every three-year cycle.
Sick leave is not 10 days per year - sick leave is 30 days per three years. The employer may not restrict an employee to taking only 10 days sick leave per year. During the first six months of employment, the entitlement is 1 day paid sick leave for every 26 days worked, which amounts to approximately 1 day sick leave in every 5 weeks.
On the first working day of month number 7, the balance of the 30 days kicks in and is available to the employee. Therefore if the employee took no sick leave during the first six months of employment, then on the first working day of month number seven that employee would have 30 days sick leave available to last him for the balance of 2 ½ years remaining in his first 3-year cycle.
If the employee took say 4 days sick leave during the first six months of employment, then on the first working day of month number seven, that employee would have 26 days sick leave available to last him for the next 2 ½ years.
This amount can be used by the employee at any time during the next 2 ½ years, or three years, as the case may be, but when it is all used up then of course the employee has no further sick leave available until the start of the next 3 year cycle.
If the employee, for example, uses up all his available sick leave in month number 8 of the cycle, then he has no sick leave left until the commencement of the next cycle. Similarly, if the employee uses up all his available sick leave in month number 8, and then in month number 9 he resigns, the employer may not claim back any sick leave from that the employee.
Any sick leave remaining to the credit of the employee at the end of a sick leave cycle is forfeited, and is not carried over to the next leave cycle. Any sick leave remaining to the credit of the employee upon termination of the employment agreement by either party, is forfeited and the employee is not entitled to receive any payment for any sick leave days outstanding to the employee's credit.
An employee who is off sick for more than 2 consecutive days (in other words, 3 days or more) is required to produce a medical certificate 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.
In other words, a medical certificate signed by a clinic sister or traditional healer is not acceptable. If the employee does not produce the required medical certificate as above, then the employer is entitled to treat the period of absence as unpaid leave, and the employee is not entitled to request that it be taken as paid annual leave.
It is unlawful for an employer to insist that an employee produce a medical certificate for an absence on a Friday, or on a Monday, or on the Friday and the Monday, or for and absence on the day before or the day after a public holiday.
If an employee is absent on more than two occasions (even if only for one day) during the same eight-week period, then for further absence, the employer is entitled to insist on a medical certificate, even if the absence is for only one day, and if it is not produced, then the employer is entitled to treat that absence as unpaid leave.
Injury on duty and sick leave.
If an employee is unable to work because of an accident or occupational disease, as defined in the Compensation for Occupational Injuries and Diseases Act, then any period of absence is not taken from ordinarily sick leave, unless there is no compensation payable in terms of the Act.
Maternity leave entitlement
Maternity leave is for months unpaid leave. The maternity leave should commence one month before the expected date of birth of the child, and that the mother may not return to work for six weeks after the birth of the child.
These periods may be varied upon written permission from a doctor or midwife. The Act does not stipulate at what stage of the pregnancy the employee is obliged to inform the employer of her pregnant condition.
The Act stipulates only that the employee must notify the employer in writing of the date on which the employee intends to commence maternity leave, and the date on which the employee intends to return to work.
The Act stipulates further that the above a written notice must be given to the employer at least four weeks before the commencement of the maternity leave. An employer is obliged to keep the employee's job open, and no employee may be dismissed on grounds of pregnancy, or for any reason in relation to pregnancy or intended pregnancy.
Any arrangements between the employer and employee regarding payment of salary or benefits during maternity leave, remains a matter between employer and employee and has nothing to do with any provision of the Act. The employee must inquire at the Department of Labour regarding maternity benefits payable in terms of UIF.
Family Responsibility leave
Family responsibility leave is presently an allowance of 3 days on full pay per year, and if the employee does not utilise the family responsibility leave during any 1 year, then any part of the allowance remaining at the end of the year is forfeited and is not carried over to the next year.
Family responsibility leave is available only to employees who have been in employment with the same employer for longer than 4 months, and who work more than 4 days per week for that the employer.
Family responsibility leave may be used when the employee's child is born, when the employee's child is sick, or upon the death of the employee's spouse or life partner, or the employee's parent, adoptive parent, grandparent, adopted child, grandchild or sibling.
An employee is entitled to take family responsibility leave as a ½ day, if that is all that is required. The employer is entitled to ask for proof of the event for which the family responsibility leave is sought, such as a medical certificate or death certificate. Family responsibility leave may not be claimed for any reason other than the reasons stated above.
There is no provision in the BCEA which entitles an employee to take unpaid leave. Unpaid leave is referred to in the Act only in terms of what the employer is entitled to do when an employee’s sick leave or annual leave has been exhausted - the employer may then allow (or require) the employee to take unpaid leave. However, there is no provision in the Act that allows an employee to demand that he/she be permitted to take unpaid leave.
Very simply, in labour legislation there is no such thing as study leave - it does not exist. Therefore, if the employee has such a requirement, he must apply for paid annual leave in accordance with the employer's annual leave policy.