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36 THE DAIRY MAIL DECEMBER 2014
It is the festive season and employers have to look at productivity
in terms of working hours that include public holidays and
all categories of leave annual, sick, family responsibility and
maternity. What are the employers rights and responsibility in
terms of remuneration and operational requirements? Sectoral
Determination 13 regulates these issues in relation to farm workers.
LeaveLeave is a vital issue where employers need to be informed of legal requirements and responsibilities involved in managing labour risk proactively as well as curbing unnecessary costs.
Annual leaveAn employee is entitled to 21 consecutive days (excluding public holidays) annual leave on full pay in an annual leave cycle (12 months). This can be calculated at one day of annual leave for every 17 days worked. It is important that an employer grant an employee the annual leave accumulated in this leave cycle by no later than six months after the end of this leave cycle. Leave must be approved and approval is at the employers discretion, depending on the operational requirements of the business. Sometimes leave cannot be granted owing to workload or any other valid and fair reason. When
by Jan Swanepoel
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THE DAIRY MAIL DECEMBER 2014 39
An employer may request reasonable proof (a medical or death certificate) before paying an employee for family responsibility leave. This leave cannot be accumulated.
Maternity leaveAn employee is entitled to four consecu-tive months unpaid maternity leave for which an employee can claim benefits from the Unemployment Insurance Fund (UIF). Maternity leave commences four weeks before the expected date of bir th and an employee is not allowed to return to work for six weeks after childbir th, unless a medical practitioner or midwife certifies that she is fit to do so. In the case of a stillborn child or a miscarriage in the third trimester of pregnancy, the employee is entitled to six weeks maternity leave thereafter, irrespective of commenced maternity leave at the time.
Compressed working weekA week is limited to 45 working hours usu-ally spread over five or six days. In a compressed working week, these hours are compressed into fewer days without being seen as overtime. A compressed working week can be implemented because of operational requirements at any time, as long as it is agreed upon between the employer and employees. This agreement may not require or permit an employee to work more than 45 hours per week, more than 12 hours per day (including meal intervals), more than 10 hours overtime in any week or on more than five days in any week.
We advise employers to include clauses regard-ing leave, work performed on a public holiday, as well as a compressed working week in the employment contract. policies should also be implemented to ensure that all employees are aware of the rules in this regard.
the employee still goes ahead to take the said leave, he/she may be charged with unauthorised absenteeism, insubordination and refusing to obey reasonable and lawful instructions. however, your disciplinary code needs to be followed. Note, however, that even if the employee does notify you that he/she will be absent for the day, such notification does not mean that the absence is now authorised. When dealing with unauthorised absenteeism, you have three options depending on the circumstances. you can either request him/her to come to work, treat the absence as author-ised and pay the employee for the period absent, or process it as unpaid leave.
Sick leaveDuring the first six months of employment, paid sick leave is calculated as one day paid sick leave for every 26 days worked. In a 36-month leave cycle, an employee is entitled to 30 days paid sick leave (if the employee works five days per week) or 36 days paid sick leave (if the employee works six days per week). This leave cycle commences, irrespective of a probation period, on the first
day of employment, and paid sick leave taken during the first six months of employment can be deducted from it. A medical certificate has to be presented if an employee is absent from work on more than one occasion or more than two consecutive days within an eight-week period. A medical certificate is not required if an employee is absent from work on one occasion for two or less consecutive working days within an eight-week period. If paid sick leave is not due, there are two options: you can process it as unpaid leave, or you can process it as paid leave and deduct it from the employees annual leave.
Family responsibility leaveEmployees who have been employed for more than four months and who work for at least four days a week are entitled to three days fam-ily responsibility leave during each 12 months of employment. Family responsibility leave is granted when the employees child is born or is sick, or in the event of the death of the employees spouse or life partner, parent, adoptive parent, grandpar-ent, child, adopted child, grandchildren or sibling.
Jan Swanepoel is a legal advisor at the LWO Employers Organisation, which has been registered with the Department of Labour since 1990. he is currently busy with his bachelor of law degree through Unisa and has attended numerous labour law related seminars. Jan also has two years experience working for a senior commissioner at the CCMA. Contact the LWO at [email protected]
Family responsibility leave is granted when the employees child is born or is sick, or in the event of the death of a family member.
38 THE DAIRY MAIL DECEMBER 2014
Public holidaysAn employer can only request an employee to work on a public holiday if agreed upon between both parties. Therefore, we advise employers to discuss working on a public holi-day with the employee during the interview, as well as to include it in the employment contract.
When a public holiday falls on a day the employee would normally work, any work on this day should be remunerated as double pay for a full days work, irrespective of the hours worked. When a public holiday falls on a day the employee would not normally work, any work done on this day will be remunerated as the employees normal daily wage plus his/her nor-mal hourly wage for the hours worked. When a public holiday falls on a day the employee would normally work and the employee does not work, he/she will receive normal pay for that day.