For your convenience, we have put together a comprehensive leave reference guide to keep handy.
Annual leave
The minimum entitlement to annual leave according to Section 20 of the Basic Condition of Employment Act, Act 75 of 1997, states that an employee is entitled to annual leave from an employer if they work for the same employer for more than 24 hours a month.
Employees should then be granted 21 consecutive days annual leave on full remuneration during each leave cycle, or by agreement, one day of annual leave on full remuneration for every 17 days worked or entitled to be paid (this latter is equivalent to 15 days per annum). This could also, by agreement, be an hours leave for every 17 hours worked. This method of determining leave is often used when dealing with temporary employees or employees on a fixed term contract. Note that this is the minimum, but both parties can by contractual agreement arrange for different levels of leave in excess of the minimum requirement.
- An annual leave cycle is calculated for 12 months. This starts from commencement of employment or directly after the previous leave cycle ends.
- If an employee works a five day week, the employee will be entitled to 15 working days leave.
- If an employee works six days a week the accrual rate for annual leave would be 18 working days in a leave cycle.
- A working ‘day’ is defined as the particular employee’s normal working day (i.e. an eight hour period or a five hour period, or a shift worker of 12 hours).
- Annual leave must be granted to an employee on request, within six months of a leave cycle ending, or by agreement during the leave cycle. Many employers accrue annual leave at a rate of one twelfth of an annual leave entitlement per month, i.e. 15 days would accrue at 1.25 days a month and 18 days would accrue at 1.5 days a month.
- Some organisations have an annual shutdown period for which employees are required to use their annual leave. Ensure this is included in the employment contract and manage employees so that enough leave is retained to cover the closure period. Unpaid leave would apply if there was insufficient leave to cover the obligatory closure period or the employee may retain a negative balance to be offset by monthly accrued leave. However this can be problematic if an employee leaves their employment with a negative leave balance.
- Public holidays that occur during a leave period are not counted as a leave day.
- Annual leave must be applied for by the employee and approved by the employer, and that approval should not be unreasonably withheld.
- An employee may take their annual leave as consecutive days (i.e. an employee does not have to break it into smaller tranches of leave if they don’t want to).
- Leave records must be kept.
- If an employee has a change in their leave allocation, they must be issued with written notification of the new status.
- An employer may not pay out annual leave except upon termination of the employee’s contract.
- Ensure employee agreements and company policies are clear on the management and accrual of annual leave in previous leave cycles, so that an employee is allowed to utilise their leave entitlement and leave accruals do not increase to unrealistic levels. In the absence of agreements, the leave accumulated in a previous leave cycle may be retained by the employee.
- If an employee has resigned an employer may not force the employee to take their leave during the notice period and it is viewed that the employee is therefore prohibited from taking leave during their notice period.
Sick leave
The sick leave entitlement for an employee is 30 days over a three year period for employees who are working a five day week. If an employee is working a six day week they are entitled to 36 days sick leave over a three year period.
The entitlement is the equivalent of the number of days worked in a six week period.
- The 30 / 36 day entitlement as a lump sum or portion thereof over a three year period only occurs from the seventh month of employment.
- During the first six months of employment the employee is entitled to one day of sick leave for every 26 days worked.
- The full quota of sick leave is available from day one of the seventh month of employment – i.e. if an employee falls ill any time after month seven they can take their full sick leave allocation.
- Sick leave is not calculated at 10 days per year.
- A ‘day’ is a normal working day for the employee.
- The balance of unused sick leave at the end of the three year sick leave cycle (which begins on the first day of employment; with the two scenarios, i.e. the rules for the first six months and then the rules from month seven onwards), is forfeited and a new sick leave cycle begins.
- If, as an example, an employee utilises all available sick leave in the first year of their employment, they must then use annual leave or unpaid leave for any further time off for being ill.
- On termination any unused sick leave is forfeited.
- If a person has an income that fluctuates (such as a commission earner), they would be paid according to the average remuneration earned in the previous 13 weeks or a representative time period.
Medical certificate requirements:
- The Basic Conditions of Employment Act allows an employee to be absent from work for more than two consecutive days or on more than two occasions during an eight week period, without a medical certificate.
- Sick leave for more than two days requires a medical certificate.
- An employee does not have to produce a medical certificate if they are off sick on a Friday or a Monday, or the day before or after a public holiday.
- A medical certificate is one which is issued and signed by a medical practitioner or any person entitled to diagnose or treat patients, and who is registered with a professional council established by an Act of Parliament.
- Failure to produce a medical certificate when required allows an employer to treat the absence as unpaid leave.
Family responsibility leave
An employee is entitled to three days per annum of family responsibility leave and must have been in the present employer’s employment for longer than four months to qualify.
- Family responsibility leave is granted to an employee who has a sick child.
- The death of any of the following family members also entitles an employee to FRL: a child (including adopted children), a spouse or life partner, parents or adoptive parents, grandparents, grandchildren or siblings.
- The employer can request proof of such absence by way of a medical attendance note or a death certificate.
- Family responsibility leave may be taken as a portion of a day or in hours.
- Leave not taken is automatically forfeited at the end of the leave cycle.
Unpaid leave
Unpaid leave is not considered to be an official class of leave and to implement this it is easier to work on the premise that deductions from the salary of an employee are allowed under certain situations.
The BCEA makes provision for the remuneration of employees when they are on annual leave or sick leave. When there is no valid reason for an employee’s absence, the employee cannot produce proof of incapacity for the period of absence, and if there is no annual leave entitlement, it is not considered unfair for the employer to withhold remuneration for days not worked.
Under common law, statute law and the employment contract, there is an expected obligation for the employee to be at work in order to be remunerated. This therefore cannot be viewed as a deduction from the salary, merely that the employee is paid for days worked and not for days that were not worked.
- Employees can negotiate with employers for unpaid leave if they find themselves in a situation where they need time off and have no annual leave.
- Employees who stay away from work without authorisation or fail to produce the required medical certificates must expect there to be disciplinary action taken against them in addition to not being paid for the days that are absent.
- Annual leave continues to accrue when an employee is on unpaid leave.
Maternity leave
- An employee is entitled to at least four consecutive months unpaid maternity leave for the birth of a child.
- Maternity leave may commence at any time from four weeks before the expected date of birth, unless otherwise agreed, or on a date specified by a medical practitioner or midwife.
- Unless certified fit by a medical practitioner or midwife, the employee may not return to work for at least six weeks after the birth of her child.
- An employee who has a miscarriage during the third trimester of pregnancy or bears a still-born child is entitled to maternity leave for six weeks after the miscarriage or still-birth.
- 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 commence maternity leave as well as the date they are expected to return to work after maternity leave.
- Notification must be given at least four weeks before the employee intends to commence maternity leave or as soon as is reasonably practical to do so.
- The employer is not obliged to pay maternity leave.
- The employee may claim directly from UIF subject to the provisions of the Unemployment Insurance Act, 2001, for any benefits due in this regard.
- Annual leave continues to accrue to an employee while on maternity leave.
- The employer must hold the employee’s job open for the duration of their maternity leave.
Parental leave or paternity Leave
An employee who becomes a parent can apply for parental leave. The terminology of parental leave takes into account that traditional family arrangements have evolved and now includes a ‘paternity leave applicant’, thereby making provision for same-sex couples, single parents and co-parenting families.
- The employee applying for parental leave may take 10 consecutive days from the first occurring date when the child is born.
- The employee must submit a calendar months’ notice in writing to their employer of the date they expect to commence parental leave and the date they will be returning to work at the conclusion of their parental leave.
- If the employee is not able to provide the dates, they should do so as soon as can be reasonably expected.
- The employer has no obligation to pay the employee for the parental leave.
- The employee may claim directly from UIF subject to the provisions of the Unemployment Insurance Act, 2018, for any benefits due in this regard.
- A father can apply for parental leave as many times as he fathers a child – there is no limitation period. UIF obliges the father’s name to be on the birth certificate.
Adoption leave
An employee who is an adoptive parent of a child below the age of two is entitled to 10 consecutive weeks of leave or parental leave. If there are two parents to the adopted child, one parent may take 10 weeks of adoption leave and the other parent may take 10 days of parental leave – the parents can choose who takes which leave type.
- An employee may commence adoption leave on the first occurring date between the date the adoption order is granted, or the date that a competent court places an adoptive child in the care of a prospective adoptive parent, pending the finalisation of an adoption order in respect of that child.
- An employee who intends to take adoption leave must submit a calendar months’ notice in writing to the employer of this intention as well as the intended return date.
- If they are unable to give notice of the intention due to uncertainty of the date, they must do so as soon as it can reasonably be expected.
- The employer has no obligation to pay the employee for the adoption leave.
- The employee may claim directly from UIF subject to the provisions of the Unemployment Insurance Act, 2018, for any benefits due in this regard.
Commissioning parents leave
An employee who is a commissioning parent in a surrogate motherhood agreement is entitled to at least 10 weeks unpaid commissioning parental leave. If there are two parents in the surrogate motherhood agreement, one parent may take the 10 weeks of commissioning parents leave and the other parent may take 10 days of parental leave – the parents can choose who takes which leave type.
- An employee may commence commissioning parents leave on the day of the child’s birth.
- An employee who intends to take commissioning parents leave must submit a calendar months’ notice in writing, to the employer of this intention as well as the intended return date.
- If they are unable to give notice of the intention due to uncertainty of the date, they must do so as soon as it can reasonably be expected.
- The employer has no obligation to pay the employee for the commissioning parents’ leave.
- The employee may claim directly from UIF subject to the provisions of the Unemployment Insurance Act, 2018, for any benefits due in this regard.
Study leave
Labour legislation does not cater for study leave. An employer and an employee can negotiate and subsequently include it in their employment contract, or study leave could be provided as a benefit governed by the company’s own internal policies. Where there is no provision made for study leave, an employee would apply for normal paid annual leave.
Religious and public holidays
South African public holidays are granted to all employees who are entitled to these holidays as paid time off. Many retail employers in particular will negotiate and contract with employees to work on public holidays, but this must be by agreement of the employee.
If a religious holiday is a public holiday, then all employees are entitled to that holiday regardless of their religion. If the religious holiday is not a public holiday, the employee can apply to their employer for paid annual leave.
Injury on duty (IOD) leave
If an employee is injured on duty and sent to a medical practitioner or hospital for an injury that occurred on duty, the following principles apply as per Section 22(2):
- If an employee is booked off for three days or less, the employee may not claim a ‘periodical payment’ from the compensation commissioner. The employer must grant time off and that time off does not come from the employee’s sick leave allocation.
- For temporary total disablement (where an employee is booked off due to an IOD for four days or longer, but less than three months), the employer must pay the injured employee at a rate of at least 75% of their earnings (including items such as the value of any food or quarters, any overtime payments of a regular nature for work ordinarily performed, or any other payments by virtue of their contract of service including commission, cost of living allowances and incentive or other bonuses), from the first day, until the employee returns to work. The employer can claim this back from the Compensation Commissioner.
- For an injury where the employee is booked off work for longer than three months, the rate as noted above applies and after the three month period the employee must claim their money from the Compensation Commissioner.
If you require assistance or have any questions regarding the different leave types, please contact us – we would love to help.