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Legal Matters - Avoid Losing Your Leave
What South African Employees Should Know
By Jessie Taylor
Are you considering saving your annual leave for later? You might be risking losing it altogether. A recent judgment by the Labour Court underscores the importance of taking your leave within the prescribed timeframes. While employers are legally obligated to ensure you can take your leave, the stakes are even higher for employees: any leave not taken within six months of the end of the leave cycle will be forfeited. That means no carrying over, no payouts, and no exceptions. In South Africa, employees are entitled to various types of leave under the Basic Conditions of Employment Act (BCEA). These entitlements ensure that workers maintain a healthy work-life balance while addressing personal and family needs.
These are the types of leave South African employees can claim:
Annual Leave
Employees are entitled to 21 consecutive days of paid annual leave for every 12 months worked. This equates to 15 working days based on a five-day workweek. Annual leave must be taken within six months of the leave cycle’s completion and cannot be exchanged for cash unless the employee leaves the company. Employers and employees may agree on the timing of leave, but leave cannot overlap with other types of leave like maternity or sick leave.
Sick Leave
Sick leave operates on a three-year cycle. Employees are entitled to the equivalent of their normal working days over six weeks during this cycle. For example, a full-time employee working five days per week is entitled to 30 days of paid sick leave over three years. During the first six months of employment, employees accrue one day of paid sick leave for every 26 days worked. Beyond two consecutive days of absence, employees must provide a valid medical certificate.
Maternity Leave
Pregnant employees are entitled to four consecutive months of unpaid maternity leave. Unless a healthcare provider advises otherwise, maternity leave typically begins four weeks before the expected delivery date. Employees may claim benefits from the Unemployment Insurance Fund (UIF) during maternity leave. Employers cannot dismiss employees based on pregnancy or related reasons, and they must reinstate the employee upon return from leave.
Parental Leave
All parents, regardless of gender, are entitled to 10 consecutive days of unpaid parental leave when their child is born or adopted. This provision ensures that both parents can support the child during its early days. Adoptive and commissioning parents are also entitled to adoption or surrogacy leave, with one parent taking the full leave or sharing it.
Family Responsibility Leave
Employees with more than four months of service and who work at least four days per week are entitled to three days of paid family responsibility leave annually. This leave can be used for specific situations, such as the birth of a child, illness of a child, or the death of a close relative, including a spouse, parent, or sibling. Unused family responsibility leave does not roll over to the next year.
Unpaid Leave
Employees may take unpaid leave if they have exhausted their paid leave entitlements. However, such arrangements must be agreed upon with the employer
Study and Religious Leave
While not explicitly covered under the BCEA, some employers offer study leave or allow time off for religious observances as part of their policies. These types of leave are subject to the employer’s discretion and may require prior approval.
Leave For Injury On Duty
If an employee is injured at work or contracts an occupational disease, the leave taken for recovery is covered under the Compensation for Occupational Injuries and Diseases Act (COIDA). This is not deducted from their sick leave entitlement.
Leave policies are often outlined in employment contracts and may offer benefits exceeding the BCEA’s minimum requirements. If you do not take your annual leave, it can lead to several complications for both employees and employers. In South Africa, the “use it or lose it” principle applies to annual leave. This means that if employees fail to take their accrued leave within a stipulated period, typically a year, they risk losing it unless specific provisions are outlined in their employment contract or company policy.
For employees, not taking leave can have serious implications for well-being and productivity. Prolonged work without adequate rest can lead to burnout, stress, and reduced effectiveness at work. Physically and mentally, employees may find themselves unable to cope, which could also result in higher absenteeism due to illness. Financially, forfeited leave means losing a valuable benefit that forms part of total compensation. Moreover, labor laws generally do not allow employees to “cash out” unused leave unless they leave the organisation, making planning and utilising this benefit imperative.
From an employer’s perspective, unclaimed leave can create legal and financial challenges. Employers must maintain records of accrued leave liabilities, which could become a financial burden if several employees fail to take their leave. Additionally, excessive leave accumulation could disrupt operations if multiple employees try to take their leave simultaneously in the future.
To avoid complications, it’s crucial for both employees and employers to manage leave proactively. Encouraging a culture where taking time off is normalised and supported can lead to better productivity, healthier work environments, and stronger employee satisfaction. Legal and policy frameworks should be clearly communicated to employees, ensuring they understand their rights and obligations regarding annual leave.
