A holiday at least once a year is generally regarded as good for productivity, is probably necessary to the employee’s health, and is a basic right that helps to prevent employees from being compelled to surrender themselves entirely to the demands of their employers
Time off work – a prerequisite
By Tshidi Letsoalo
Employees are required to take leave occasionally. There are different situations in which an employee may want to take leave: to go on holiday, to recover from illness, to nurse a sick child or to have a child. In some cases, the employer is obliged to pay the employee whilst on leave (Todd, 2001)
According to the Basic Conditions of Employment Act, the application for leave does not apply to an employee who works less than 24 hours a month.
Annual leave is the time every employee is entitled to take time off work, for no apparent reason other than to take a break. It is often referred to as “holiday leave”. The BCEA requires that an employer should grant an employee at least 21 consecutive days of annual leave each year. The 21 consecutive days includes weekends and if a public holiday falls in the period of such leave, it must be extended by a day. The method of taking annual leave may be changed by agreement to one day’s leave for every 17 days worked, or one hour for every 17 hours worked.
The only dilemma related to annual leave, is that both the employer and employee should agree on its timing. If they cannot agree, the employer then makes the final decision. Though annual leave is considered to be management’s prerogative, lots of companies are dealing with internal grievances daily, whereby an employer has failed to grant such leave.
Employers can only pay workers instead of granting annual leave when employment is terminated and leave may not be taken during a period of sick leave or while the employee is serving a notice of termination.
Employees generally look forward to their annual leave, and most take it when they can. But occasionally, for financial reasons or as a favour to their employers, some employees forego that right in a particular year. When they do so, they usually expect that leave would accumulate and that, ultimately, they would either take longer leave or claim cash in lieu of leave not taken, when they ultimately resign or retire. Questions which then follow, are whether and at what stage can annual leave be forfeited (Grogan, 2004).
The Labour Court has given two different judgements on the forfeiture of leave. In the first case,Jardine v Tongaat – Hulett Sugar Ltd (2003) 7 BLLR 717 (LC), the Court held that an employee who has not taken leave due in terms of the BCEA may claim payment in lieu thereof for all the days accumulated since the commencement of employment. At the time of his dismissal, the applicant had accumulated 48 days’ leave. He sought an order compelling the company to pay him for the remaining eight days. The company had only paid him 40 of these days. Tongaat-Hulett argued that their company policy precluded employees from accumulating more than 40 days’ leave. The Court further held that if the employer had to pay out for leave not taken when the contract had been terminated, it had only itself to blame as employers are entitled to insist that employees take their full annual leave during a particular cycle. The Court also noted that, although employers are obliged by section 20(2) of the BCEA to grant employees annual leave within six months of the end of a particular leave cycle, the BCEA does not expressly prohibit the accumulation of leave.
In the second case, Jooste v Kohler Packaging Ltd (2003) 12 BLLR 1251 (LC) (which was decided two months later without reference to Tongaat-Hulett case), the Court held that only leave not taken during the current leave cycle and that immediately preceding it, may be claimed. The applicant had at the time of his resignation accrued 141 days’ leave. Kohler Packaging paid him out for only 50 days. The applicant claimed payment for the balance. Similar to Tongaat–Hulett matter,Kohler Packaging relied on its contract with the employee. The applicant’s position was complicated by the fact that some of the leave he claimed had accrued before the commencement of the current BCEA. That portion of his claim was therefore regulated by the BCEA, of 1983. However, like the current BCEA (section 40), the 1983 BCEA (section 12) version provided that leave not taken must be paid for on termination of employment. The Court then concluded that in its view, both section 40 and section 12 (4) of the respective Acts contemplate payment only in respect of leave accrued in the cycle immediately preceding that during which termination takes place (apart of course from the pro rata entitlement for the then current cycle).
Grogan held that in Tongaat-Hulett, the Court adopted a literal approach to the statute; since the act says nothing about forfeiture of leave not taken during spent leave cycles, the judge assumed that a general right to claim pay for accumulated leave, supercedes section 20 of the BCEA, which extends the right to take leave. In Kohler Packaging, the Court paid more attention to the relationship between sections 40 and 20 of the BCEA. The judge noted, in particular, that section 20 (4) compels employers to grant the full period of annual leave provided by the Act “not later than six months after the end of the annual leave cycle”.
Grogan also stated that the question of which judgement to take is worth considering, because the issue can only be finally determined by the Labour Appeal Court, the Supreme Court of Appeal, or the Constitutional Court.
Employees are entitled to take the number of days that they would normally work in a 6-week period for sick leave on a full pay in each 3-year cycle. During the first six months of employment an employee may take one day’s paid sick leave for every 26 days worked.
An employee may be requested to produce a valid medical certificate if he/she has been absent from work for more than two days in a row. If the employee does not have a valid medical certificate, the employer might not be obliged to pay. Todd (2001) states that some employees are regularly sick on Monday and Friday. This can be very annoying to an employer, and disrupt production.
The BCEA provides that a medical certificate must be issued and 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. Where the employee lives on the premises the employer must provide “reasonable assistance”, if necessary enable the employee to get a medical certificate.
Healy (2004) indicates that while sick leave is a necessary statutory benefit that rightfully should be accrued by employees, abuse is an ever-present dilemma, which challenges employers daily. Sick leave fraud is on the rise. A recent UK survey showed that only one in three employees who embark on sick leave are truly sick to the extent that they are unable to attend work or it would be reckless for them to do so as their infectious condition could be detrimental to colleagues. In the US, it has been submitted that a similar pattern of growing sick leave abuse is a result of employees endeavouring to gain a better work life balance. A number of factors need to be incorporated into the calculation of costs associated with sick leave. To begin with there are the direct costs of the unproductive remuneration of the sick employee for the days in question. Further indirect costs include overtime to other employees and the costs of hiring temporary staff.
Research conducted in South Africa during 2002 surveyed 959 950 public servants of which 752 665 were employed at a provincial level and 207 285 were at a national level. The report established that absenteeism between the periods 1999 to 2000 had cost the South African government R631 million in sick leave. In Gauteng province the cost of sick leave to the Department of Finance was estimated at R29 million in 2000 and approximately R54 million in 2001 (Parbhoo, 2003).
An employee who exhausts his sick and annual leave as prescribed by the Act but still needs to take days off due to sickness may be terminated due to incapacity. It would be deemed substantively fair if the following principles are adhered to before dismissing an employee for incapacity:
w The employee has been counselled, and his medical condition and the problems arising from it have been discussed with him,
w The employee’s medical condition makes it impossible for the employee to perform his normal duties,
w The employee’s prognosis is poor,
w The employee had a fair opportunity to contest the employers’ conclusion about his medical condition and prognosis, and
w The employee’s working conditions cannot be adapted, or alternative work is not available.
Pregnant workers are entitled to at least four consecutive months of maternity leave. They may take their leave one month before their due date, or earlier or later as agreed or required for health reasons. Such workers may not go back to work within 6 weeks after the birth unless their doctor or midwife had said it is safe. Employees who are pregnant are protected by all labour legislations. Based on section 26 of the BCEA, a worker who is pregnant or nursing may not do work that is unsafe for her or her child. According to the Employment Equity Act section 6 (2), no person may directly or indirectly discriminate against an employee on the ground of pregnancy.
Furthermore, section 187 (1)(e) of the Labour Relations Act states that, a dismissal is considered to be automatically unfair if the reason for dismissal is due to the employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy. In the case between Lukie v Rural Alliance CC t/a Development Specialist (2004) 8 BLLR 769 (LC), the employee informed the employer that she was pregnant and wished to take time off for her confinement, her manager agreed that she could take leave. However, the manager later changed his mind and informed her that she need not return after maternity leave. The applicant did not return to work and claimed to have been automatically unfairly dismissed. The Court held that the applicant had been unfairly dismissed in terms of section 187 (1) e of the LRA. She was awarded compensation equivalent to 80 weeks remuneration.
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. Notification to take maternity leave should be given to the employer four weeks before the employee intends to commence with the leave.
An employer is not obliged to pay an employee who is on maternity leave, employees on such leave may claim for benefits from the Unemployment Insurance Fund.
Family Responsibility Leave
According to section 27 of the BCEA, employees may take up to 3 days of paid leave a year to attend to certain family responsibilities. Family responsibility leave expires at the end of the annual cycle. Only employees who have been in employment for longer than four months and who work four days or more for the employer are entitled to family responsibility leave.
The reasons for taking such leave should be in the circumstances:
w When the employee’s child is born
w When the employee’s child is sick and
w In the event of the death of the employee’s:
– Spouse or life partner
– Parent or adoptive parent
– Child or adopted child
On a discretionary basis, some companies in their company policies make additions to the categories as stipulated above. For example, in-laws are mostly added in other company policies. An employer may require a reasonable proof of birth, illness or death for which a worker requests family responsibility leave.
Generally an employer is compelled to grant leave to an employee in all the abovementioned circumstances. It is also imperative and necessary for employers to allow their employees time off. A holiday at least once a year is generally regarded as good for productivity, is probably necessary to the employee’s health, and is a basic right that helps to prevent employees from being compelled to surrender themselves entirely to the demands of their employers (Todd, 2001).
Jardine v Tongaat – Hulett Sugar Ltd (2003) 7 BLLR 717 (LC)
Jooste v Kohler Packaging Ltd (2003) 12 BLLR 1251 (LC)
Lukie v Rural Alliance CC t/a Development Specialist (2004) 8 BLLR 769 (LC)
Department of Labour. Basic Guide to Leave, www.labour.gov.za. Accessed December 2004
Todd,C. (2001). Contracts of Employment. Siber Ink CC
Grogan,J.(February 2004) Employment Law Journal,“Holiday Blues”. Lexis Nexis Butterwoths, Volume 20
Parbhoo,S Why worry about absenteeism at the workplace? CCMA publication, CCMail July 2003 Page 18
Tony Healy & Associates. How to manage sick leave The Star Workplace, Wednesday 21 January 2004: Page 4
Republic of South Africa. The Labour Relations Act, 66 of 1995. Pretoria: Government Printers
Republic of South Africa. The Employment Equity Act,55 of 1998. Pretoria: Government Printers
Republic of South Africa. The Basic Conditions of Employment Act, 75 of 1997. Pretoria: Government Printers