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UNDERSTAND
YOUR RIGHT TO LEAVE

This article will explain the laws relating to leave. You have the right to some type of leave during your period of employment, whether you are under contract or not. The types of leave are explained in Chapter 3 of the Basic Conditions of Employment Act No. 75 of 1997 (the Act). However, the Act only applies to employees who work 24 hours or more a month for one employer.

The categories of leave are:

  1. annual leave;
  2. sick leave;
  3. maternity leave; and
  4. family responsibility leave.

The conditions of leave described by the Act are as follows. However, if you and your employer agree, you may change some of these conditions:

  1. Annual leave

    The annual leave cycle is described as 12 months' employment with the same employer. It begins when the employee starts work with that employer, and ends on the day before the anniversary date that the employee started working for the employer and commences again on the anniversary date and so on.

    An employer must give you at least 21 days' annual leave on full pay for every annual leave cycle. This may be:

    You must get your annual leave within six months after the end of the annual leave cycle. If you ask in writing for unpaid leave, the employer must grant you unpaid leave. You must receive the same amount of pay when returning from unpaid leave.

  2. Sick leave

    A sick leave cycle is the period of 36 months' employment with the same employer, starting when you start working, and every three years after that.

    For every 36 months, you may get as many days paid sick leave as the number of days you would normally work in six weeks. In the first six months of the 3 year cycle, you may get only one day's paid sick leave for every 26 days worked. The same conditions relating to pay apply as with annual leave.

    An employer may ask for a medical doctor's certificate if you are absent from work for 2 or more consecutive days.

  3. Maternity leave

    Maternity leave is regulated by 4 sets of laws, namely:-

    1. The Basic Conditions of Employment Act, sets the period of leave;
    2. The Labour Relations Act, which gives the employee the right to return to work after the period of leave;
    3. The Employment Equity Act, which protects employees from discrimination for reasons related to pregnancy; and
    4. The Unemployment Insurance Act, which provides for the payment of maternity benefits to employees on maternity leave.

    Maternity leave can be taken for four months consecutively at any time from four weeks before the birth of the baby. You may return to work before the end of the four months, but not within 6 weeks of the birth of the baby, unless you have a certificate from a doctor or midwife. As maternity leave is unpaid, so you may decide to take paid annual leave during maternity leave.

    If you earn less than R97 188 per annum, you may claim unemployment benefits during maternity leave for a period of up to 26 weeks from when you stopped working. (Section 37 of the Unemployment Insurance Act).

  4. Family Responsibility Leave

    The law does not allow for "paternity leave". However, a new father can take paid "family responsibility leave" for a maximum of 3 days. You can also take this leave in other situations, such as when a family member passes away or when your child is ill. However, your employer can ask for reasonable proof of these events.

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Members of the Mallinicks Women's Forum write the articles, which offer basic legal advice.
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