Looking at Leave: Explaining Your Entitlements

Leave in the workplace seems like a pretty straightforward topic, right?

Wrong!

Today Sheldon from Optimum Labour Law will share everything you need to know about leave — from sick leave to parental leave and all leave in between.

Have you ever wondered when you’re allowed to take parental leave? Or what happens when your company shuts down? Are you trying to figure out what your rights are, as a working parent, when your child is sick? 

All of your questions — and SO MUCH MORE — will be answered today. In this all-encompassing article, Sheldon truly leaves no type of leave unturned. 

There’s No Such Thing as Study 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 or she must apply for paid annual leave in accordance with the employer’s annual leave policy. 

Understanding Unpaid leave

There is no provision in the BCEA that 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. 

In such instances, 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 or she be permitted to take unpaid leave and it is approved — or rejected– at the employer’s discretion.

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 employer.

Family responsibility leave may only be claimed in one of three circumstances.

Family responsibility leave may be used:

  1. When the employee’s child is born
  2. When the employee’s child is sick
  3. 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. 

Parental Leave Particulars

An employee who is a parent of a child is entitled to at least 10 consecutive days’ parental leave. Adoption leave entitles an employee, who is an adoptive parent of a child who is below the age of two, to adoption leave of at least 10 consecutive weeks, or the parental leave referred to above.

An employee who is a commissioning parent in a surrogate motherhood agreement is entitled to commissioning parental leave of at least 10 consecutive weeks, or the parental leave referred to above.

The employer is not required to pay the employee during these forms of leave, but the employee may qualify for benefits under the Unemployment Insurance Act 63 of 2001, as is the case with maternity leave.

In terms of the amendments, employees are no longer entitled to take paid family responsibility leave in the event of the birth of their children, as this is now covered by parental leave.

However, employers must note that where an employee’s contract of employment already entitles her or him to paid family responsibility leave when the employee’s child is born, the employer would not be entitled to deprive the employee of this contractual right to use family responsibility leave in these circumstances.

Making Sense of Maternity Leave

In a nutshell, maternity leave is four months of 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 leave and return to work. This written notice must be given to the employer at least four weeks before the employee intends to begin her 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.

Maternity leave is a somewhat complex subject and you need to be fully aware of what it is. You can find out more about maternity leave in South Africa in this article

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 of 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 them for the balance of  2 ½ years remaining in their first 3-year cycle.

Say the employee took 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 them for the next 2 ½  years. 

If the employee, for example, uses up all their available sick leave in month number 8 of the cycle, then they have no sick leave left until the commencement of the next cycle. Similarly, if the employee uses up all their available sick leave in month number 8, and then in month number 9 they resign, 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.

Medical Certificates

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 an 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. 

Annual Leave Entitlement

Who is and isn’t eligible for annual leave? How much annual leave are you entitled to, and when can you start using it? All of those questions will be answered in this next section. 

Who is Eligible for Annual Leave?

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.

How Much Annual Leave Do I Get?

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 employee’s 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.

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.

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.

When Can I Take My 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.

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.

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.

When CAN’T I Take My Leave?

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 also means that if an employee has sick leave days available to their credit, the employer cannot force the employee, nor can they allow the employee to utilise annual leave instead of taking sick leave.

The employer may not force an employee to take annual leave during any period of notice, and the employee is prohibited from taking annual leave during any period of notice. 

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.

The employer is prohibited by section 20 (11) from paying an employee for annual leave except upon termination of employment.

What Happens if My Company Closes for the Holidays? Am I Forced to Take Leave?

 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.

Leave Now, Educated and Stuff!

Yikes, as it turns out, there is a LOT I didn’t know about my rights to leave in the workplace. Oh, if I could turn back time and refer one or two of my past employer’s to this article. 

I hope you’ve all found value in today’s article and that you close this tab feeling more empowered as a working parent.

Once again, a HUGE thanks to Sheldon for sharing his knowledge with us and doing his part to ensure that we parents are an educated bunch. 

I’ll catch up with you on Friday for my next Life Right Now post. Until then stay safe, stay sane, and stay sanitized. 

Leave a Reply

Your email address will not be published. Required fields are marked *