Labour Law: The basic Conditions of Employment Act 71 of 1997
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What types of leave are granted, who is entitled to leave and when
The law relating to leave is governed by The Basic Conditions of Employment Act, 71 of 1997. Employees enjoy certain types of leave under the BCEA - namely annual, sick, maternity and family responsibility leave (found in sections 20, 22, 25 and 27 of Chapter 3 ). Each category of leave is specific about the purpose for which it may be granted.
As per Section 19 of the BCEA an ‘‘annual leave cycle’’ means the period of 12 months’ employment with the same employer immediately following an employee’s commencement of employment; or the completion of that employee’s prior leave cycle. An employer must grant an employee at least 21 consecutive days’ annual leave on full remuneration in respect of each annual leave cycle; or by agreement, one day of annual leave on full remuneration for every 17 days on which the employee worked or was entitled to be paid; by agreement, one hour of annual leave on full remuneration for every 17 hours on which the employee worked or was entitled to be paid.
An employee is entitled to take leave accumulated in an annual leave cycle in on consecutive days. A n employer must grant annual leave not later than six months after the end of the annual leave cycle. An employer may not require or permit an employee to take annual leave during any other period of leave to which the employee is entitled or any period of notice of termination of employment. Despite the above, an employer must permit an employee, at the employee’s written request, to take leave during a period of unpaid leave. 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.
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. An employer may not require or permit an employee to work for the employer during any period of annual leave. Annual leave must be taken in accordance with an agreement between the employer and employee; or if there is no agreement at a time determined by the employer in accordance with this section. An employer may not pay an employee instead of granting paid leave in terms of this section except on termination of employment.
As per Section 22 of the BCEA, ‘‘sick leave cycle’’ means the period of 36 months’ employment with the same employer immediately following an employee’s commencement of employment; or the completion of that employee’s prior sick leave cycle. 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. Despite the above, during the first six months of employment, an employee is entitled to one day’s paid sick leave for every 26 days worked.
During an employee’s first sick leave cycle, an employer may reduce the employee’s entitlement to sick leave by the number of days’ sick leave taken. An employer must pay an employee for a day’s sick leave the wage the employee would ordinarily have received for work on that day; and on the employee’s usual pay day. 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 the number of days of paid sick leave is increased at least commensurately with any reduction in the daily amount of sick pay; and the employee’s entitlement to pay 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 for sick leave over the sick leave cycle is at least equivalent to the employee’s entitlement.
As per Section 25 of the BCEA, an employee is entitled to at least four consecutive months’ maternity leave. An employee may commence maternity leave at any time from four weeks before the expected date of birth, unless otherwise agreed; or 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. 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. 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.
An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the em ployee intends to commence maternity leave; and return to work after maternity leave. Notification in terms of the above must be given at least four weeks before the employee intends to commence maternity leave; or if it is not reasonably practicable to do so, as soon as is reasonably practicable.
Section 27 of the BCEA applies to Family Responsibility Leave and is only applicable to an emplo yee who has been in employment with an employer for longer than four months; and who works for at least four days a week for that employer. 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 when the employee’s child is born; when the employee’s child is sick; or an employer must pay an employee for a day’s family responsibility leave the wage the employee would ordinarily have received for work on that day; on the employee’s usual pay day.
An employee may take family responsibility leave in respect of the whole or a part of a day. Before paying an employee for leave in terms of this section, an employer may require reasonable proof of an event for which the leave was required. 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. A collective agreement may vary the number of days and the circumstances under which leave is to be granted in terms of this section.
If an event for which an employee seeks leave is not provided for in the BCEA or the contract of employment, it would be safe to assume that such leave would be unpaid. In other words, the employee would not be allowed to claim payment in respect of such unspecified leave.
The BCEA does not apply to an employee who works less than 24 hours a month for an employer, nor does it apply to leave granted to an employee in excess of the employer’s entitlement, unless an agreement provides otherwise.
Date: 11th June 2013
Legislation: The Basic Conditions of Employment Act, 71 of 1997
