Labour Law Regarding Leave Types in South Africa
As an employer, you must comply with the requirements of the labour laws of South Africa, including the Basic Conditions of Employment Act regulations regarding leave. We strongly recommend seeking legal advice from experienced labour law attorneys when drafting your company’s leave policies to ensure compliance with the labour regulations.
To help clear up confusion about the various types of leave, we briefly discuss maternity and other forms of leave, apart from the annual leave, that the employee is allowed to take. Call on our labour law attorneys for professional guidance.
The employee is entitled to family responsibility leave with full remuneration for every 12-month cycle. However, should the employee fail to use the family responsibility leave in a given year, then the employee forfeits the days not taken in that year. This means that family responsibility leave cannot be carried over to the next period. An employee must work at one employer for a minimum of four months before being entitled to family responsibility leave. An employee who works less than four days a week at your workplace is not entitled to such leave.
Your employees can take family responsibility leave for reasons such as a sick child, hospitalisation of a child or spouse, or the death of the employee’s spouse or parent, child, sibling, or adopted child. The employee has the right to take only half the day for family responsibility leave. You, as the employer, have the right to require proof of the particular incident for which the employee takes family responsibility leave.
Maternity leave should start 30 days before the expected date of birth, and the female employee may not return to work before 42 days (six weeks) after the child has been born. However, the period may vary if the employee’s medical practitioner provides the required permission.
Note that the law does not specifically indicate when the employee must inform you, as the employer, of her pregnancy. She is only required to notify you in writing about the starting date of the maternity leave and the intended return date. That said, the employee must give you written notice at least one month or four weeks before the intended maternity leave.
The law does not stipulate anything regarding the payment of leave during this period. You and the employee must come to an agreement regarding payment of benefits for maternity leave. You are welcome to call on our labour law attorneys for guidance regarding the issue, also regarding UIF benefits that the employee can claim while on maternity leave.
What About Unpaid Leave?
As our labour law attorneys will explain, unpaid leave is not a right. The law does not stipulate any entitlement to such. If you allow an employee to take unpaid leave, then it will be at your discretion. The law only stipulates that you can require an employee to take unpaid leave if the employee wants a day off for sick leave, family responsibility leave, or another day when the employee has already exhausted all the days of leave allowed for regarding the particular type of leave, such as annual or sick leave. You do not have to permit the employee to do so and can thus decline such a leave application.
Issues Related to Study Leave
The law does not make provision for study leave. If you, as the employer, agree to provide the paid study leave, then it is up to you, since the employee should, indeed, apply for annual leave according to your company’s policy for annual leave.
We strongly recommend seeking guidance from our labour law attorneys regarding the various aspects of leave and how to set up a leave policy in your firm.
NB – This article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information. This information is relevant to the date of publishing – January 2018.