Basic Conditions of Employment: Leave

Summary

  • No worker may be retaliated against for demanding the rights set out in the Basic Conditions of Employment Act
  • Senior managers, traveling sales staff, and those that work under 24 hours per month excluded, employees may not work for more than 12 hours of overtime each week
  • An extended weekend may be arranged by way of a compressed work week of no more than 12 hours per day
  • Any employee agreeing to work an 11pm to 6am shift must be debriefed on the health and safety risks, as well as compensated for regular medical examinations
  • Employer may not take annual leave hours away from employees while they are enjoying  special leave privileges such as maternity or sick leave 
  • Family responsibility leave may be taken on account of the birth or sickness of a child, or the death of a spouse, child, parent, grandparent, grandchild, or sibling
  • Deductions may only be made from an employee’s pay if they are agreed to in writing and are either a legal requirement, or part of a collective agreement, arbitration award or court order.
  • Four weeks notice must be provided employees of more than one year before termination of their labor contract
  • Employees must be permitted to challenge their dismissals on the basis of established labor policy
  • Collective agreements via the Bargaining Council may differ from the Act as long as worker protection is not reduced as regards health, safety, or family responsibilities
  • In addition to investigating complaints, Labor Inspectors must notify employees of their rights and responsibilities

Your Rights

The Act does not cover:

  • Probationary periods; right of entry to the employers premises;  afternoons and weekends off; pension schemes; training or school fees; funeral benefits and savings accounts. However, all of these can be negotiated and included in an employment contract.
  • There is also no provision which prevents any other conditions of employment being included in a contract but any provision that sets conditions which are less favourable than those set by the Act, will be considered INVALID.

Leave

This section does not apply to an employee who works less than 24 hours a month for an employer.

Annual leave and Payment

An employer must grant an employee at least 21 consecutive days’ annual leave on full remuneration in respect of each ‘annual leave cycle’ every 12 months.

If you break it down, an employee is entitled to one day’s paid leave on full remuneration for every 17 days worked or one hour’s paid leave for every 17 hours worked.

  • An employee is entitled to take his or her leave in consecutive days (in other words, all the days at once) and the employer must grant the leave within 6 months of application.
  • An employer cannot take the employees annual leave while they are enjoying other leave privileges (for example, you can’t deduct an employee’s annual leave when they are on maternity leave).
  • When on annual leave, employees must be paid as if they were at work. The wages can however be paid at the beginning of the leave period or by agreement with the employee on the usual pay day.
  • Annual leave must be taken in accordance with the agreement between employer and employee.
  • An employer may only pay a worker instead of giving leave if that worker leaves the job.

Sick leave and entitlement

A worker can take up to 6 weeks' paid sick leave during a 36 months cycle (i.e. ‘sick leave cycle’). In other words, 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.

  • 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.
  • If an employee takes a days’ sick leave, they must be paid the wage they would ordinarily have received for work on that day; and the monies must be paid on the employee’s usual pay day.
  • You can agree to reduce the sick leave pay if the number of days of paid sick leave is increased;
  • An employer may want a medical certificate before paying a worker who is sick for more than 2 days at a time or more than twice in 8 weeks.

Family responsibility leave

If an employee works more than 4 days a week and has been employed by the same employer for more than 4 months, they are entitled to 3 days of family responsibility leave each year.

It can be taken...

  • when an employee’s child is born or is sick;
  • And if their spouse, life partner, child or adoptive child, grandparent, grandchild or sibling dies.

Family responsibility leave can be taken for a whole day or half a day but lapses when an employee’s annual leave lapses.

The employer may ask for reasonable proof of why the leave is needed. A collective agreement may vary the number of days and the circumstances under which leave is granted.

Maternity leave

A pregnant employee is entitled to at least 4 continuous months of maternity leave. She can start leave any time from 4 weeks before the expected date of birth OR on a date a doctor or midwife says is necessary for her health or that of her unborn child.

She also may not work for 6 weeks after the birth of her child unless declared fit to do so by a doctor or midwife.

A pregnant or breastfeeding worker is not allowed to perform work that is dangerous to her or her child, or which requires her to be working a night shift

The employer is NOT obliged to pay an employee during her maternity leave. However, an employer must reserve her position until she returns from maternity leave.

A woman may claim from the unemployment insurance fund (UIF) if she has contributed to the fund for more than four months. The fund pays a percentage of the wage/salary that she earned while she was contributing to the fund. Depending on her salary, she may claim between 30% and 58% of her salary during maternity leave. If you take maternity leave, you can only claim for up to 121 days.

An employee who has a miscarriage during the last three months of pregnancy or who bears a stillborn child is also entitled to six weeks’ maternity leave, whether or not the employee had started maternity leave at the time.

Employers should note that even where an employee who has already given birth is 100% well, the illness of the newborn baby entitles the employee to get time off to look after the child.

REMEMBER! No employer may require or permit a pregnant employee or an employee who is nursing her child to perform work that is hazardous to her health of her child.
Remuneration and Payment