Leave & Absence

The bereaved employee

An employee has taken three days family reponsibility leave on the death of a brother in a motor accident. She stays away for a further two weeks, and brings a medical certificate stating that she is il and unfir to work beacuse she is suffering from ‘bereavement’.
Would you accept this?  Must you give paid sick leave, and why, or why not?  The employee has been in employ for 18 months, and has a very poor record of attendance.

The cost of absenteeism

Absenteeism is the single biggest cause of lost time and decreased productivity. Each year the economy will lose around an average of 2m mandays through strike action at a direct cost in the order of magnitude of 1.278 billion.

In contrast it is probably that the minimum cost of absenteeism  measured as a direct cost only will be in the order of magnitude of R19.144 billion. Most employers will never have a strike.

Everyone will suffer from absenteeism.

According to a survey carried out by us in 2003, the overall percentage of absenteeism level across all sectors was 3.5%.

How many different types of leave are there?

By leave, we mean circumstances when the employee is not at work.   We can  divide this into two major categories – when the employee is away from work with the permission of the employer, and when the employee is away without such permission.

The distinction is vital, for any absence without the permission of the employer represents a fundamental breach of one of the most basic obligations of the employee – namely, to attend work regularly and reliably.  Any failure in this obligation – in contract alone – is grounds to terminate the relationship. Given that the breach had no reasonable explanation, it may also be grounds to terminate under the current equity regime.

There is also another basic division.  That is whether or not the leave is paid or unpaid.  

To complicate things even further, what starts of as one, may end up as the other.  It is not easy to make broad generalizations about leave, which is why we need to approach it from the basics upward.

Absence with permission
•    annual leave
•    sick leave
•    family responsibility leave
•    maternity leave
•    leave related to union activities
•    any other form of absence permitted by the employer, whether paid or unpaid

In the South African context, there are many of the latter.   Some are discretionary, and some not.   Examples of discretionary paid leave might be time of for study, or to write exams, paid time off to represent the country in a sporting event, or paid time off for compassionate reasons.  The key point here is that these are usually set out in terms of a company policy, which would see this as discretionary.  They may also have become contractual by way of custom and practice.

Other types of paid leave may be provided for in terms of collective agreements, and these are no longer at the employer’s discretion.  For example time off for shop stewards.

Absence without permission

There are various conditions under which this occurs.  Most often, the employee simply does not report for work.  Whilst this is classified as absence without permission, there may be circumstances which justify it. On consideration of these circumstances, the employer may condone the lack of permission, and even decide to pay.  There may also be circumstances where the employee has been told beforehand that he/she may not absent themselves, and then do so.  

Cases of absence without permission usually cause difficulty, as the employee seeks to explain, by factual or fictitious means as to why he/she was not at work.

Do employees accumulate leave when they are on leave, on sick leave or on notice?

Employees accumulate leave entitlement with each day worked.  The argument therefore is that if you are on leave, you are not working, and thus not entitled to pay.

However, this is not correct.  In terms of Basic Conditions of Employment Act (BCEA) interpretation, ‘work’ means not necessarily a day on which you actually worked, but also includes a day on which you “did not work, but were entitled to be paid”, or a day on which the employee would have ‘ordinarily worked’.  In other words, a day of sick leave, or a day of annual leave is a day on which you would have ordinarily have worked but for the illness or the leave. It certainly is a day on which you are entitled to be paid.  Hence, these days count for the accumulation of leave.

Notice is no different to any day of work or service, all it means, is that both the employer and the employee know the future date upon which the employment relationship will end.  

The only exception to the above, is the case where the relationship is terminated by the payment in lieu of notice and that payment is made at the time of the termination.  

This is made quite clear by Section 190 of the Labour Relations Act (LRA), which defines the date of dismissal as the earlier of either the date on which the employment contract terminated, or the date on which the employee left the service of the employer.  

If the employee is still entitled to be paid, even if he/she is not working during that time, he/she cannot be said to be not in the service of the employer, nor has the contract terminated.  These two conditions are usually simultaneously fulfilled, as would be the case if the employer made the payment in lieu of notice at the time the contract terminated.

In any event, it is in the interest and protection of the employer to get the    contract terminated as soon as possible.

Taking leave – A question of ownership -  employee or employer?

In the sense of ownership, the leave is the employees.  After all, he has earned it.  Nevertheless, the taking of leave may come at a particularly awkward time for the employer, and this inconvenience needs to be taken into account.

The Basic Conditions of Employment Act deals with the issue in Chapter Three, and there are a number of principles that must be taken into account.  These are -

•    “The employer must grant the employee at least 21 consecutive days”  this means that the employee may take the entire entitlement in one event if this is what he wants to do.  The employer cannot deny the employee the right to go away for the entire duration of the leave if that is what the employee wishes [S.20(2)]
•    This is reiterated in S.20(3). Which states that the employee is entitled to take the leave on consecutive days.
•    Finally, coming to the rescue of the employer in S.20.(10) where it says that leave must be taken in accordance with an agreement between the employer and the employee, or in the absence of  such an agreement at a time determined by the employer, but in compliance with the other requirements of the section.
•    The leave must be taken within the 12 months of the leave cycle, or by agreement, no later than six months thereafter.

Thus, it can be seen that whilst the employee ‘owns’ the leave, it may not be taken willy-nilly at a time that would create maximal inconvenience for the employer.   In this sense it is the employer who determines the moment of convenience, but one thing is clear.  It can never be that inconvenient for the employer that the employee can never get away during the 18 month extended cycle.

‘Occasional Leave’ is how the BCEA refers to a few days here or there – and this is by mutual agreement, but falls within the same rules as stated above.    

Can an employee insist that they be given unpaid leave at their convenience?
There is no right to unpaid leave, and if the principle were conceded, it would mean that the employee would be able to attend work at will, in breach of his duty to attend work regularly and reliably.

If, of course, the employer has made a practice of granting unpaid leave under given circumstances, and gives to some, but not to others, then the question of victimization or discrimination might arise.  Remember however, both victimization and discrimination are easy to allege, but rather difficult to prove.  Don’t worry too much about these allegations, unless you know that you really have been guilty of them.  In which case, don’t do it.  

What are the circumstances an employer must take into account before refusing a leave application?

Whilst the employer cannot prevent the employee taking leave in the 12 months of the leave cycle, or the six months thereafter,  the employer may determine the convenient time during which leave may be taken.

Obviously, the criteria that the employer is entitled to take into account when refusing leave are the exigencies of the business.  We used to refer to these arguments as the ‘economic rationale’ – in other words, the economic imperatives of running a business.  Nowadays we tend to use the ILO term ‘operational requirements’, and this best describes the circumstances.  If you can show an operational detriment to the business for the employee taking leave at that time,  you should be on safe ground.

Allowing employeeleave, invariably means that the employer has the expense of hiring someone to do the work of the employee on leave, or to increase headcount of his establishment to allow for leave to be taken.  This is part of the cost of employment, and the employer would never be entitled to refuse leave on the basis that it would cost  money to comply with the BCEA.

What if the employer wants to vary the times when leave must be taken from year to year?

It is my contention that the employer may have a fixed period when leave is to be taken, and this might be over a particular period.  There are many example of plants that have a shutdown for maintenance, the Xmas holidays or similar.  Indeed, there are entire industries such as building that do this.

It is equally my view that this should be arranged as a contractual requirement, and made conditional at the time of joining. It  does not have to be in writing  and signed - a simple policy will do.

If there are good operational requirements for the employer to shift the close down time, or even impose one, then the employer may do this.  Once again, we rely on the operational requirement , and the key to this is consultation.  

So, provided you have a genuine operational requirement to do this, and you consult properly (which includes giving plenty of notice), you are OK.

Strictly speaking, in theory at least you would be entitled to dismiss any employee who refused to accept this for the operational requirement – with no severance pay if they were being unreasonable about it.

Leave When A Child Is Sick?

Family responsibility leave applies when a child is sick - but what is a child?

In a recent case, an employee alleged amongst a long list of woes, that her employer had not given her family responsibility leave, when her daughter had been hospitalised.  The daughter was 28, but the employee still claimed the BCEA provided for family responsibility leave when a 'child' is sick.

It is fair to regard a 'child' as having the usual meaning of the term, that being someone who is less than eighteen years old.  In any event, the BCEA, in Section 1 - definitions, defines a child as 'a person who is under 18 years of age' - so this is a pretty safe bet.

As a matter of interest, the employee lost the case, which also had some interesting other features relating to sick leave - for example, can an employee claiming sick leave because they are too ill to work, utilise this time to go to the Department of Labour to lay a complaint against the employer?

Your answers to our website would make interesting reading - the answwer judged most entertyaining will receive an electronic copy of our Leave and Absence Workbook

Sick Leave For Eye Tests And The like

Is an employee allowed to take sick leave in order to see their dentist for a check up, their optician for new spectacles, or their dietician?  As a matter of course, many employees do,but is the employer compelled to pay, particularly for an appointment which the employee could keep in hei/her own time?

We are of the view that the answer is no, such events do not count for sick leave.  The BCEA says in S23(1), that sick leave applies when the employee cannot attend work on account of 'sickness or injury', which suggests that appointments to see a medical or similar such person which is not the result of an immediate medical crisis, requiring attention is not what the BCEA contemplates by way of sick leave.

Most reasonable employers would not have cause to refuse an employees request for time of for such an appointment, particularly if the employee offers to work in their lunch hour so that they can leave early.  It does seem however, that many employees in the public sector take iot as their right to have sick leave for such occasions.

What is the practice in your firm?  Abuse of sick leave is a continuous and costly drain on your organisation, and should be the focus of regular attention

How is ‘remuneration’ defined and why is this important?

Wages and remuneration are not the same thing at all, and both are separately defined in the BCEA.  Conventionally, we make the distinction between ‘earnings” which is the amount in the pay packet,and ‘rates of earnings’ which is the basis of calculation of pay. 

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