Employers need to look at productivity in terms of working hours that include public holidays and all categories of leave – annual, sick, family responsibility and maternity. What are the employer’s rights and responsibility in terms of remuneration and operational requirements?
Leave is a vital issue where employers need to be informed of legal requirements and responsibilities involved in managing labour risk proactively as well as curbing unnecessary costs.
An employee is entitled to 21 consecutive days’ (excluding public holidays) annual leave on full pay in an annual leave cycle (12 months). This can be calculated at 1 day of annual leave for every 17 days worked. It is important that an employer grant an employee the annual leave accumulated in this leave cycle by no later than six months after the end of this leave cycle. Leave must be approved and approval is on the employer’s discretion depending on the operational requirements of the business.
Sometimes leave cannot be granted due to workload or any other valid and fair reason. When the employee still goes ahead to take the said leave, he/she can be charged with unauthorised absenteeism, insubordination and refusing to obey reasonable and lawful instructions. However, your disciplinary code needs to be followed. Note however that even if the employee does notify you that he/she will be absent for the day, such notification does not mean that the absence is now authorised. When dealing with unauthorised absenteeism, you have three options depending on the circumstances. You can either request him/her to come to work, treat the absence as authorised and pay the employee for the period absent, or process it as unpaid leave.
During the first six months of employment, paid sick leave is calculated as one day paid sick leave for every 26 days worked. In a 36-month leave cycle, an employee is entitled to 30 days’ paid sick leave (if the employee works five days per week) or 36 days’ paid sick leave (if the employee works six days per week). This leave cycle commences, irrespective of a probation period, on the first day of employment, and paid sick leave taken during the first six months of employment can be deducted from it.
Is it paid or unpaid leave? Firstly, is sick leave due? If the answer is yes, then you must determine whether a medical certificate is needed. A medical certificate has to be represented if an employee is absent from work on more than one occasion or more than two consecutive days within an eight-week period. A medical certificate is not needed if an employee is absent from work on one occasion for two or less consecutive working days within an eight-week period. If paid sick leave is not due, there are two options. You can process it as unpaid leave, or you can process it as paid leave and deduct it from the employee’s annual leave.
Family responsibility leave
Employees who have been employed for more than four months and who work for at least four days a week will be entitled to three days’ family responsibility leave during each 12 months of employment. Family responsibility is granted when the employee’s child is born or is sick, or in the event of the death of the employee’s spouse or life partner, parent, adoptive parent, grandparent, child, adopted child, grandchildren or sibling. An employer may request reasonable proof (a medical or death certificate) before paying an employee for family responsibility leave. This leave cannot be accumulated.
An employee is entitled to four consecutive months’ unpaid maternity leave for which an employee can claim benefits from the Unemployment Insurance Fund (UIF). Maternity leave commences four weeks before the expected date of birth and an employee is not allowed to return to work for 6 weeks after childbirth, unless a medical practitioner or midwife certifies that she is fit to do so. In the case of a stillborn child or a miscarriage in the third trimester of pregnancy, the employee is entitled to six weeks’ maternity leave thereafter, irrespective of commenced maternity leave at the time.
|Table 1: Leave summary|
|ANNUAL LEAVE||SICK LEAVE||FAMILY RESPONSIBILITY LEAVE||MATERNITY LEAVE|
An employer can only request an employee to work on a public holiday if agreed upon between the parties. Therefore we advise employers to discuss working on a public holiday with the employee during the interview, as well as to include it in the employment contract.
When a public holiday falls on a day the employee would normally work, any work on this day will be remunerated as double pay for a full day’s work, irrespective of the hours worked. When a public holiday falls on a day the employee would not normally work, any work done on this day will be remunerated as the employee’s normal daily wage plus his/her normal hourly wage for the hours worked. When a public holiday falls on a day the employee would normally work and the employee does not work, he/she will receive normal pay for that day.
|Table 2: Public holidays summary|
|EMPLOYEE WORKS ON A PUBLIC HOLIDAY THAT THE EMPLOYEE WOULD:||EMPLOYEE DOES NOT WORK ON A PUBLIC HOLIDAY|
|NORMALLY WORK||NORMALLY NOT WORK|
|Employee receives a full day’s double pay, irrespective of hours worked on this day||Employee receives normal daily wage plus normal hourly wage for hours worked on this day||Employee receives normal daily wage|
Compressed working week
A week is limited to 45 working hours usually spread over five or six days. In a compressed working week these hours are compressed into fewer days without being seen as overtime. A compressed working week can be implemented due to operational requirements at any time, as long as it is agreed upon between the employer and employees. This agreement may not require or permit an employee to work more than 45 hours per week, more than 12 hours per day (including meal intervals), more than 10 hours’ overtime in any week, or on more than five days in any week.
We advise employers to include clauses regarding leave, work performed on a public holiday, as well as a compressed working week in the employment contract. Policies should also be implemented to ensure that all employees are aware of the rules in this regard.
LWO Regsadviseur - LWO Legal Advisor
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