Leave outside the Basic Conditions of Employment Act (BCEA)

Employees enjoy certain types of leave under the BCEA, namely annual, sick, family responsibility and maternity leave. Each category of leave is specific about the purpose for which it may be granted.

If an event for which an employee seeks leave is not provided for in the BCEA or the contract of employment, it would be safe to assume that such leave would be unpaid. In other words, the employee would not be allowed to claim payment in respect of such unspecified leave.

What are the typical events for which employees often request leave outside the BCEA provisions?

An employee may be required to attend court proceedings, either as a litigant or as a witness. Unless the employer's leave policy or the employment contract allows leave for such events, the employee would be expected to either take annual or unpaid leave. The employer does not have to pay for the leave. Of course, the employee would be protected from disciplinary action for the absence because they would have a legitimate reason for missing work.

Another employee may be unable to attend work because there is no bus due to a strike by bus drivers. If there are no other reasonable alternative means of transport to get to work, the employee would be protected from disciplinary action for missing work. However, the employer would not have to pay the employee for the day. 

Yet another employee may have a very sick parent for whom they provide care. The employee might even be the only one to take their parent to the doctor. While it is understandable that the employee would have to stay away from work and care for their sick parent, there is no leave provided for in such an event. It is not covered by the family responsibility leave section in the Act. Therefore the employer would not be expected to pay for the day.

There are many other instances where employees may have legitimate reasons for missing work, yet they are not provided for paid leave in terms of the BCEA. So an employer that is faced with a request for paid leave for an unusual event, such as discussed above, should first check the BCEA to see whether such event is provided for.

If it is not provided for, the employer should check the contract of employment and/or its leave policy. If the event is still not provided for, the employee may be advised to take either annual leave or unpaid leave.

Lesson:

The BCEA provides for certain categories of leave. If employees want leave for events not catered for, they should take their annual or unpaid leave.  

Information provided by Kaizer Moyane, Chief Consultant: Labour Relations