Contents
20. Annual leave.
21. Pay for annual leave.
22. Sick leave.
23. Proof of incapacity.
24. Application to occupational accidents or diseases.
25. Maternity leave.
25A. Parental leave.
25B. Adoption leave.
25C. Commissioning parental leave.
26. Protection of employees before and after birth of a child.
27. Family responsibility leave.
Recent developments:
20. Annual leave.
(1) In this Chapter, “annual leave cycle” means the period of 12 months’ employment with the same employer immediately following—
(a) an employee’s commencement of employment; or
(b) the completion of that employee’s prior leave cycle.
(2) An employer must grant an employee at least—
(a) 21 consecutive days’ annual leave on full remuneration in respect of each annual leave cycle; or
(b) by agreement, one day of annual leave on full remuneration for every 17 days on which the employee worked or was entitled to be paid;
(c) by agreement, one hour of annual leave on full remuneration for every 17 hours on which the employee worked or was entitled to be paid.
(3) An employee is entitled to take leave accumulated in an annual leave cycle in terms of subsection (2) on consecutive days.
(4) An employer must grant annual leave not later than 6 months after the end of the annual leave cycle.
(5) An employer may not require or permit an employee to take annual leave during—
(a) any other period of leave to which the employee is entitled in terms of this Chapter; or
(b) any period of notice of termination of employment.
(6) Despite subsection (5), an employer must permit an employee, at the employee’s written request, to take leave during a period of unpaid leave.
(7) An employer may reduce an employee’s entitlement to annual leave by the number of days of occasional leave on full remuneration granted to the employee at the employee’s request in that leave cycle.
(8) 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.
(9) An employer may not require or permit an employee to work for the employer during any period of annual leave.
(10) Annual leave must be taken—
(a) in accordance with an agreement between the employer and employee; or
(b) if there is no agreement in terms of paragraph (a), at a time determined by the employer in accordance with this section.
(11) An employer may not pay an employee instead of granting paid leave in terms of this section except—
(a) on termination of employment; and
(b) in accordance with section 40 (b) and (c).
[40. Payments on termination.
On termination of employment, an employer must pay an employee—
(a) for any paid time off that the employee is entitled to in terms of section 10(3) or 16(3) that the employee has not taken;
(b) remuneration calculated in accordance with section 21(1) for any period of annual leave due in terms of section 20(2) that the employee has not taken; and
(c) if the employee has been in employment longer than 4 months, in respect of the employee’s annual leave entitlement during an incomplete annual leave cycle as defined in section 20 (1)—
(i) one day’s remuneration in respect of every 17 days on which the employee worked or was entitled to be paid; or
(ii) remuneration calculated on any basis that is at least as favourable to the employee as that calculated in terms of subparagraph (i).]
21. Pay for annual leave.
(1) An employer must pay an employee leave pay at least equivalent to the remuneration that the employee would have received for working for a period equal to the period of annual leave, calculated—
(a) at the employee’s rate of remuneration immediately before the beginning of the period of annual leave; and
(b) in accordance with section 35.
[35. Calculation of remuneration and wages.
(1) An employee’s wage is calculated by reference to the number of hours the employee ordinarily works.
(2) For the purposes of calculating the wage of an employee by time, an employee is deemed ordinarily to work—
(a) 45 hours in a week, unless the employee ordinarily works a lesser number of hours in a week;
(b) 9 hours in a day, or 7.5 hours in the case of an employee who works for more than 5 days a week, or the number of hours that an employee works in a day in terms of an agreement concluded in accordance with section 11, unless the employee ordinarily works a lesser number of hours in a day.
(3) An employee’s monthly remuneration or wage is 4.333 times the employee’s weekly remuneration or wage, respectively.
(4) If an employee’s remuneration or wage is calculated, either wholly or in part, on a basis other than time or if an employee’s remuneration or wage fluctuates significantly from period to period, any payment to that employee in terms of this Act must be calculated by reference to the employee’s remuneration or wage during—
(a) the preceding 13 weeks; or
(b) if the employee has been in employment for a shorter period, that period.
(5)
(a) The Minister may by notice in the Gazette, after consultation with the Commission and NEDLAC, determine whether a particular category of payment, whether in money or in kind, forms part of an employee’s remuneration for the purpose of any calculation made in terms of this Act.
(b) Without limiting the Minister’s powers in terms of paragraph (a), the Minister may—
(i) determine the value, or a formula for determining the value, of any payment that forms part of remuneration;
(ii) place a maximum or minimum value on any payment that forms part of remuneration; and
(iii) for the purposes of any calculation, differentiate between different categories of payment and different sectors.
(c) Before the Minister issues a notice in terms of paragraph (a), the Minister must—
(i) publish a draft of the proposed notice in the Gazette; and
(ii) invite interested parties to submit written representations on the draft notice within a reasonable period.
[Sub-s. (5) substituted by s. 7 of Act No. 11 of 2002.]
(2) An employer must pay an employee leave pay—
(a) before the beginning of the period of leave; or
(b) by agreement, on the employee’s usual pay day.
22. Sick leave.
(1) In this Chapter, “sick leave cycle” means the period of 36 months’ employment with the same employer immediately following—
(a) an employee’s commencement of employment; or
(b) the completion of that employee’s prior sick leave cycle.
(2) During every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of 6 weeks.
(3) Despite subsection (2), during the first 6 months of employment, an employee is entitled to one day’s paid sick leave for every 26 days worked.
(4) During an employee’s first sick leave cycle, an employer may reduce the employee’s entitlement to sick leave in terms of subsection (2) by the number of days’ sick leave taken in terms of subsection (3).
(5) Subject to section 23, an employer must pay an employee for a day’s sick leave—
(a) the wage the employee would ordinarily have received for work on that day; and
(b) on the employee’s usual pay day.
(6) An agreement may reduce the pay to which an employee is entitled in respect of any day’s absence in terms of this section if—
(a) the number of days of paid sick leave is increased at least commensurately with any reduction in the daily amount of sick pay; and
(b) the employee’s entitlement to pay—
(i) for any day’s sick leave is at least 75 per cent of the wage payable to the employee for the ordinary hours the employee would have worked on that day; and
(ii) for sick leave over the sick leave cycle is at least equivalent to the employee’s entitlement in terms of subsection (2).
23. Proof of incapacity.
(1) An employer is not required to pay an employee in terms of section 22 if the employee has been absent from work for more than 2 consecutive days or on more than 2 occasions during an 8-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.
(2) The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament.
(3) If it is not reasonably practicable for an employee who lives on the employer’s premises to obtain a medical certificate, the employer may not withhold payment in terms of subsection (1) unless the employer provides reasonable assistance to the employee to obtain the certificate.
24. Application to occupational accidents or diseases.
Sections 22 and 23 do not apply to an inability to work caused by an accident or occupational disease as defined in
-
- the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993), or
- the Occupational Diseases in Mines and Works Act, 1973 (Act No. 78 of 1973),
except in respect of any period during which no compensation is payable in terms of those Acts.
25. Maternity leave.
[Footnote: In terms of section 187(1)(e) of the Labour Relations Act, 1995, the dismissal of an employee on account of her pregnancy, intended pregnancy, or any reason related to her pregnancy, is automatically unfair. The definition of dismissal in section 186 of the Labour Relations Act, 1995, includes the refusal to allow an employee to resume work after she has taken maternity leave in terms of any law, collective agreement or her contract.]
(1) An employee is entitled to at least 4 consecutive months’ maternity leave.
(2) An employee may commence maternity leave—
(a) at any time from 4 weeks before the expected date of birth, unless otherwise agreed; or
(b) on a date from which a medical practitioner or a midwife certifies that it is necessary for the employee’s health or that of her unborn child.
(3) No employee may work for 6 weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so.
(4) An employee who has a miscarriage during the 3rd trimester of pregnancy or bears a still-born child is entitled to maternity leave for 6 weeks after the miscarriage or still-birth, whether or not the employee had commenced maternity leave at the time of the miscarriage or still-birth.
(5) An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to—
(a) commence maternity leave; and
(b) return to work after maternity leave.
(6) Notification in terms of subsection (5) must be given—
(a) at least 4 weeks before the employee intends to commence maternity leave; or
(b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.
(7) The payment of maternity benefits will be determined by the Minister subject to the provisions of the Unemployment Insurance Act, 2001 (Act No 63. of 2001).
25A. Parental leave.
(1) An employee, who is a parent of a child, is entitled to at least 10 consecutive days parental leave.
(2) An employee may commence parental leave on—
(a) the day that the employee’s child is born; or
(b) the date—
(i) that the adoption order is granted; or
(ii) that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order in respect of that child,
whichever date occurs first.
(3) An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to—
(a) commence parental leave; and
(b) return to work after parental leave.
(4) Notification in terms of subsection (3) must be given—
(a) at least one month before the—
(i) employee’s child is expected to be born; or
(ii) date referred to in subsection 2 (b); or
(b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.
(5) The payment of parental benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act No. 63 of 2001).
[S. 25A inserted by s. 3 of Act No. 10 of 2018 with effect from: 1 January, 2020.]
25B. Adoption leave.
(1) An employee, who is an adoptive parent of a child who is below the age of 2, is subject to subsection (6), entitled to—
(a) adoption leave of at least 10 weeks consecutively; or
(b) the parental leave referred to in section 25A.
(2) An employee may commence adoption leave on the date—
(a) that the adoption order is granted; or
(b) that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order in respect of that child,
whichever date occurs first.
(3) An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to—
(a) commence adoption leave; and
(b) return to work after adoption leave.
(4) Notification in terms of subsection (3) must be given—
(a) at least 1 month before the date referred to in subsection (2); or
(b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.
(5) The payment of adoption benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act No. 63 of 2001).
(6) If an adoption order is made in respect of 2 adoptive parents, one of the adoptive parents may apply for adoption leave and the other adoptive parent may apply for the parental leave referred to in section 25A: Provided that the selection of choice must be exercised at the option of the 2 adoptive parents.
(7) If a competent court orders that a child is placed in the care of 2 prospective adoptive parents, pending the finalisation of an adoption order in respect of that child, one of the prospective adoptive parents may apply for adoption leave and the other prospective adoptive parent may apply for the parental leave referred to in section 25A: Provided that the selection of choice must be exercised at the option of the 2 prospective adoptive parents.
[S. 25B inserted by s. 3 of Act No. 10 of 2018 with effect from: 1 January, 2020.]
25C. Commissioning parental leave.
(1) An employee, who is a commissioning parent in a surrogate motherhood agreement is, subject to subsection (6), entitled to—
(a) commissioning parental leave of at least ten weeks consecutively; or
(b) the parental leave referred to in section 25A.
(2) An employee may commence commissioning parental leave on the date a child is born as a result of a surrogate motherhood agreement.
(3) An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to—
(a) commence commissioning parental leave; and
(b) return to work after commissioning parental leave.
(4) Notification in terms of subsection (3) must be given—
(a) at least 1 month before a child is expected to be born as a result of a surrogate motherhood agreement; or
(b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.
(5) The payment of commissioning parental benefits will be determined by the Minister subject to the provisions of the Unemployment Insurance Act, 2001 (Act No. 63 of 2001).
(6) If a surrogate motherhood agreement has 2 commissioning parents, one of the commissioning parents may apply for commissioning parental leave and the other commissioning parent may apply for the parental leave referred to in section 25A: Provided that the selection of choice must be exercised at the option of the 2 commissioning parents.
(7) In this section, unless the context otherwise indicates—
“commissioning parent” has the meaning assigned to it in section 1 of the Children’s Act, 2005 (Act No. 38 of 2005); and
“surrogate motherhood agreement” has the meaning assigned to it in section 1 of the Children’s Act, 2005 (Act No. 38 of 2005).
[S. 25C inserted by s. 3 of Act No. 10 of 2018 with effect from: with effect from 1 January, 2020.]
26. Protection of employees before and after birth of a child.
(1) No employer may require or permit a pregnant employee or an employee who is nursing her child to perform work that is hazardous to her health or the health of her child.
[The Minister must issue a Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child in terms of section 87(1)(b).]
(2) During an employee’s pregnancy, and for a period of 6 months after the birth of her child, her employer must offer her suitable, alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment, if—
(a) the employee is required to perform night work, as defined in section 17(1) or her work poses a danger to her health or safety or that of her child; and
(b) it is practicable for the employer to do so.
[17. Night work.
(1) In this section, “night work” means work performed after 18:00 and before 06:00 the next day.
(2) An employer may only require or permit an employee to perform night work, if so agreed, and if—
(a) the employee is compensated by the payment of an allowance, which may be a shift allowance, or by a reduction of working hours; and
(b) transportation is available between the employee’s place of residence and the work-place at the commencement and conclusion of the employee’s shift.
(3) An employer who requires an employee to perform work on a regular basis after 23:00 and before 06:00 the next day must—
(a) inform the employee in writing, or orally if the employee is not able to understand a written communication, in a language that the employee understands—
(i) of any health and safety hazards associated with the work that the employee is required to perform; and
(ii) of the employee’s right to undergo a medical examination in terms of paragraph (b);
(b) at the request of the employee, enable the employee to undergo a medical examination, for the account of the employer, concerning those hazards—
(i) before the employee starts, or within a reasonable period of the employee starting, such work; and
(ii) at appropriate intervals while the employee continues to perform such work; and
(c) transfer the employee to suitable day work within a reasonable time if—
(i) the employee suffers from a health condition associated with the performance of night work; and
(ii) it is practicable for the employer to do so.
(4) For the purposes of subsection (3), an employee works on a regular basis if the employee works for a period of longer than one hour after 23:00 and before 06:00 at least 5 times per month or 50 times per year.
(5) The Minister may, after consulting the Commission, make regulations relating to the conduct of medical examinations for employees who perform night work.4
Footnotes 4 Section 90 protects the confidentiality of any medical examination conducted in terms of this Act.’
27. Family responsibility leave.
(1) This section applies to an employee—
(a) who has been in employment with an employer for longer than 4 months; and
(b) who works for at least 4 days a week for that employer.
(2) An employer must grant an employee, during each annual leave cycle, at the request of the employee, 3 days’ paid leave, which the employee is entitled to take—
(a). . . . . .
(b) when the employee’s child is sick; or
(c) in the event of the death of—
(i) the employee’s spouse or life partner; or
(ii) the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.
(3) Subject to subsection (5), an employer must pay an employee for a day’s family responsibility leave—
(a) the wage the employee would ordinarily have received for work on that day; and
(b) on the employee’s usual pay day.
(4) An employee may take family responsibility leave in respect of the whole or a part of a day.
(5) Before paying an employee for leave in terms of this section, an employer may require reasonable proof of an event contemplated in subsection (2) for which the leave was required.
(6) An employee’s unused entitlement to leave in terms of this section lapses at the end of the annual leave cycle in which it accrues.
(7) A collective agreement may vary the number of days and the circumstances under which leave is to be granted in terms of this section.