We have in the past had a discussion in one of these columns about leave that can be taken in terms of the Basic Conditions of Employment Act.
Now with the special leave granted to the health minister, it seems everyone is wanting to discuss what types of leave there are and when can they be taken. Leave is specifically controlled by the Basic Conditions of Employment Act No 75 of 1997 as amended.
In terms of Section 19 of the BCEA it is explained this chapter does not apply to an employee who works less than 24 hours a month for an employer. It is also to be understood that leave as outlined by the legislation is for employees only and not for independent contractors or those for less than 24 hours per month.
It must also be understood the health minister is employed by the state and not by the ANC. It is up to the president and the ANC to make certain demands on him as he is also subject to the internal rules and regulations of the ANC.
Leave is divided up into annual leave and sick leave. There is also maternity leave and family responsibility leave and now we have structured paternity and adoption leave.
We have many other strange types of leave which are specifically controlled by the employer and the employee. This could be “gardening leave” which is typically used when an employee has resigned from his or her employ and the employer is not wanting that employee to be around.
This doesn’t in any way impinge upon any outstanding leave that the employee has and it is fully paid.
There is also “furlough” leave. This is leave given to an employee when there is impossibility of performance. This is normally unpaid leave because the business has closed due to external circumstances. This is often seen when load shedding occurs or in certain industries such as the building industry when it’s raining.
We are going to see some arguments about this unpaid leave in due course. Over the pandemic many staff were forced to take unpaid leave because the business wasn’t functional during that time.
We often see other types of special leave contained in contracts of employment such as study leave and long leave. These types of leave benefits are paid and given only in circumstances where it has been contractually agreed. We have just seen that the health minister has been placed on “special leave”.
This special leave hasn’t been explained to the people of South Africa but one can presume it is paid leave. It has been said the president was wanting to avoid suspension on full pay as that might have been deemed to be some sort of punishment.
There is no explanation at this stage as to what special leave entails and whether the minister of health can still perform some functions. The concept of suspension or step-aside has been discussed ad nauseum and it normally means this is pending disciplinary action after an investigation. The suspension and the step-aside leave would be on full pay as well.
We have come across another very strange type of leave where the minister of employment and labour has asked the commissioner of the UIF to come back after his suspension (which was on full pay) but not come back to actual work. Once again, I’m not sure what this actually means. I do, however, presume it is on full pay but not wanting the man to do any work.
Annual leave is calculated on an annual leave cycle for a period of 12 months employment with the same employer or on the completion of the prior leave cycle.
An employer must grant an employee at least 21 consecutive days annual leave on full remuneration in respect of each annual cycle.
By agreement, this could mean one day of annual leave on full remuneration for every 17 days worked or by agreement it could mean one hour of annual leave on full remuneration for every 17 hours worked.
It must be remembered an employer must grant annual leave not later than six months after the end of the annual leave cycle.
Interestingly, an employer must grant an employee an additional day of paid leave if a public holiday falls on a day during an employee’s annual leave on which the employee would ordinarily have worked.
An employer may not require or permit an employee to work for the employer during any period of annual leave. Annual leave must be taken in accordance with an agreement between the employer and the employee or if there is no agreement the time determined for the employee to take annual leave is determined by the employer.
Finally, an employer may not pay an employee instead of granting paid leave except on termination of employment.
* Michael Bagraim is a labour lawyer. He can be contacted at [email protected].
** The views expressed here are not necessarily those of Independent Media.
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