Legal question answered by Phil Davel, Solidarity Legal Services, Service Centre
In addition to the mandatory annual leave, sick leave and maternity leave to which an employee is entitled, section 27 the Basic Conditions of Employment Act 75 of 1997, as amended (BCEA), also makes provision for mandatory family responsibility leave.
However, in terms of the BCEA it is not mandatory to grant certain types of leave, including study leave, unpaid leave and special leave, for example for sports activities. Granting this leave is entirely at the discretion of the employer.
If an employee is employed by the same employer for more than four months and at least four days per week, he/she is entitled to at least three days’ paid family responsibility leave during every leave cycle. A leave cycle is 12 months from the date on which the employee took up employment or 12 months from the lapsing of the previous leave cycle.
In other words, family responsibility leave only applies to an employee (permanent or temporary) who has been employed for at least the following periods:
• four months with the employer
• four days per week with the same employer
• 24 hours per month
However, family responsibility leave is only granted in the following cases:
1. When your child is born or is ill. Note that the BCEA does not set an age limit. Therefore, if your child is older than 18 years and he/she becomes ill, you can claim family responsibility leave. A possible requirement, however, is that the child needs to be a dependant.
2. At the death of the employee’s –
• Husband/wife or life partner
• Own parent, adoptive parent or grandparent
• Own child, adopted child or grandchild
The BCEA does not make provision for in-laws or stepsiblings. The caretaker of the employee’s child is also not covered by the law.
An employer may request reasonable evidence in the above cases before granting paid leave. In other words, in case of:
• the death of the above-mentioned family member, a death certificate and proof of the deceased’s immediate family relationship may be requested;
• the birth of a child, a birth certificate and proof of parentage; and
• the illness of a child, a medical certificate. The BCEA does not define “illness” and only states that reasonably proof may be requested.
An employee may take family responsibility leave for the entire day or only a part of the day, and the leave lapses if it is not taken in the annual leave cycle. It can, therefore, not be accumulated.
In case of family responsibility leave, the employer must pay the employee, on the normal payday, the amount to which the employee would have been entitled if he/she had worked that day.
If a situation arises during an employee’s annual leave that entitles him/her to family responsibility leave, the employer must convert the annual leave to family responsibility leave.
*Note that a collective agreement may amend the number of days and the circumstances under which family responsibility leave is granted.
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