André Claassen

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.

Annual Leave 

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.

Maternity Leave. 

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.

Sick 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.

Study Leave 

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.