Leave and Public Holidays

May 17, 2024 | Articles

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.

Annual leave

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 takes the said leave without permission, 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 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.

Sick 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 to the employee? If the answer is yes, then you must determine whether a medical certificate is needed. A medical certificate has to be presented 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.

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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.

Maternity leave

An employee is entitled to four consecutive months’ unpaid maternity leave for which an employee can claim benefits from the Unemployment Insurance Fund (UIF). 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.

PARENTAL LEAVE

The employee, who is a parent of a child, is entitled to at least 10 consecutive days unpaid parental leave, which may commence:

on the day that the employee’s biological child is born,
or in the case where a child is adopted on the day that the adoption order is granted,
or on the day that the child is placed in the care of the employee as prospective adoptive parent.

The employee will notify the employer in writing of intended parental leave at least 4 weeks in advance of the date of commencement of parental leave and the date of return to work after parental leave.

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ADOPTION LEAVE

The employee, who is an adoptive parent of a child who is below the age of 2 years, is entitled to at least 10 consecutive weeks unpaid adoption leave, which may commence on the day that the adoption order is granted, or on the day that the child is placed in the care of the employee as prospective adoptive parent.

The employee will provide the employer with proof of the employee’s spouse’s approved parental leave, if employed, in order to determine the employee’s entitlement to adoption leave as both adoptive parents cannot qualify for adoption leave.

The employee will notify the employer in writing of intended adoption leave at least 4 weeks in advance of the date of commencement of adoption leave and the date of return to work after adoption leave.

COMMISSIONING PARENTAL LEAVE

The employee, who is a commissioning parent in a surrogate motherhood agreement, is entitled to at least 10 consecutive weeks unpaid commissioning parental leave, which may commence on the day that the child is born as a result of a surrogate motherhood agreement.

The employee will provide the employer with proof of the employee’s spouse’s approved parental leave, if employed, in order to determine the employee’s entitlement to commissioning parental leave as both parents cannot qualify for commissioning parental leave.

The employee will notify the employer in writing of intended commissioning parental leave at least 4 weeks in advance of the date of commencement of commissioning parental leave and the date of return to work after commissioning parental leave.

PUBLIC HOLIDAYS

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.

We advise employers to include clauses regarding leave and work performed on a public holiday in the employment contract. Policies should also be implemented to ensure that all employees are aware of the rules in this regard.

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