UNDERSTANDING DIFFERENT TYPES OF LEAVE

Employees are entitled to various types of leave to ensure a fair balance between work responsibilities and personal or family needs. Each type of leave has specific rules and requirements, and it is essential for employers to understand how these leave types work to ensure compliance and fairness.

Legal Framework

Leave entitlements in South Africa are primarily regulated by the Basic Conditions of Employment Act (BCEA). However, within the Hairdressing, Cosmetology, Beauty and Skincare Industry, leave is further governed by the provisions of the Main Collective Agreement of the National Bargaining Council for Hairdressing, Cosmetology, Beauty and Skincare.

Important Note: Even if an employee is not formally registered with the Bargaining Council, the provisions of the Main Collective Agreement still apply to all employers and employees operating within the scope of the industry. This means that all leave entitlements outlined in the agreement are applicable to all employees, regardless of their registration status.

Types of Leave

Annual Leave

What it is: Paid time off granted to employees to rest and rejuvenate. An annual leave cycle is a period of 12 months with the same employer, calculated from the employee's commencement of employment or from the completion of that employee's previous leave cycle.

Entitlement: As per Clause 21 of the Main Collective Agreement, employees are entitled to 15 or 18 consecutive days of paid annual leave per leave cycle (12 months of employment).

Calculation of Leave Accrual:

• Five-day work week: 1.25 days per month = 15 leave days per cycle

• Six-day work week: 1.5 days per month = 18 leave days per cycle

Key Points to Remember:

• Mutual Agreement: Annual leave must be taken at a time mutually agreed upon between employer and employee.

• Forfeiture Rule: If leave is not taken within six months after the end of the leave cycle, the employer may require the employee to take it. Should leave not be taken after written instruction, the employee will forfeit the accumulated leave.

• Public Holidays During Leave: Should a public holiday fall during annual leave on a day the employee would ordinarily work, the employee is entitled to an extra day's annual leave for each such public holiday during that leave period.

• Leave During Notice Period: The employer may not force an employee to take annual leave during any notice period, and the employee is prohibited from taking annual leave during any notice period.

• Decision-Making: The employee and employer must agree on when annual leave can be taken. If there is no agreement, annual leave is taken at a time to suit the employer.

• Cash-Out Restriction: The employer is prohibited by Section 20(11) of the Basic Conditions of Employment Act from paying an employee for annual leave except upon termination of employment. However, the Main Collective Agreement does require an employer to instruct an employee to take their leave. Should an employer not request an employee to take their leave, the employer might be required to pay out any leave from that cycle not taken.

Annual Leave and Shutdown/Short Period Closure:

Many employers have a shutdown period over December or during certain periods of the year. If this is the case, the employer is entitled to stipulate that annual leave must be taken to coincide with the shutdown period. Should an employee utilise their annual leave at another time during the year, the shutdown period will be treated as unpaid leave.

Sick Leave

What it is: Leave taken when the employee is ill or injured and unable to perform their work duties.

Entitlement: Employees are entitled to 66 days of paid sick leave over a three-year cycle.

As per Sick Pay Fund Rules (Section 5.4): The payment period shall be limited to:

• 33 days in a three-year cycle for being absent from the workplace for any period of time less than six days ("the six-day period")

• 33 days in a three-year cycle for being absent from the workplace for a continued period of seven days and more ("the seven-day period")

Medical Certificate Requirement: A valid medical certificate is required if the employee is absent for:

• More than two consecutive days, or

• More than twice in an eight-week period

The certificate must be issued by a registered medical practitioner.

Note: A scheduled appointment (e.g., a check-up or follow-up visit) does not qualify as sick leave unless the employee is declared unfit for duty by a medical practitioner. Such appointments should be taken as annual leave/unpaid leave, or alternatively, an employee can attend to the scheduled appointment on their day off if they have one.

Maternity Leave

What it is: Leave granted to a female employee due to pregnancy and childbirth.

Entitlement: An employee is entitled to four consecutive months of maternity leave. This leave may start four weeks before the expected date of birth and may not resume work within six weeks after childbirth, unless certified fit to do so.

Notification Requirements:

• The employee must notify the employer in writing of the date on which the employee intends to commence maternity leave and the date on which the employee intends to return to work.

• This written notice must be given to the employer at least four weeks before the commencement of maternity leave.

Employment Protection: An employer is obliged to keep the employee's job open, and no employee may be dismissed on grounds of pregnancy or for any reason relating to pregnancy or intended pregnancy.

Payment: Maternity leave is usually unpaid unless otherwise stated in an employment contract or bargaining council agreement. Employees can claim benefits from the Unemployment Insurance Fund (UIF).

Sick Pay Fund Benefit: Employees who have been registered with the Sick Pay Fund for a continuous period of 12 months or longer are eligible to apply for the maternity benefit. This benefit is paid as a lump sum equivalent to four payments of 30% of the employee's salary as registered with the fund and is issued after the birth of the child.

To confirm an employee's eligibility for this benefit or to obtain more information, please contact the Sick Pay Fund directly at: sickpayfund@hcsbc.co.za

Parental Leave

What it is: Leave granted to a father or non-birthing parent upon the birth or adoption of a child.

Entitlement: In terms of the Basic Conditions of Employment Amendment Act, a parent (other than the mother giving birth) is entitled to 10 consecutive days of unpaid parental leave following the birth or adoption of a child.

Important Points:

• This leave applies to fathers, adoptive parents, and commissioning parents in surrogacy arrangements

• Employees may claim parental benefits from UIF during this period

• The leave must be taken within 10 days after the child's birth or placement

Family Responsibility Leave

What it is: Leave taken due to urgent family matters.

Entitlement: Employees are entitled to X amount (refer to Main Collective Agreement as per area) of paid family responsibility leave per year, applicable when:

• A child is born or falls ill

• A spouse, life partner, parent, adoptive parent, grandparent, child, adopted child, grandchild, or sibling passes away

Qualification: Only employees who have been employed for longer than four months and who work at least four days a week are entitled to this leave.

Study Leave (Where Applicable as per Agreement/Employment Contract)

What it is: Leave granted to employees who are undergoing formal training or apprenticeships, particularly in learnerships or SETA-accredited qualifications.

Entitlement: Study leave is often guided by the Skills Development Act or the terms of a learnership contract. It may be paid or unpaid depending on the agreement.

Unpaid Leave

What it is: Time off work taken when no paid leave is available.

Entitlement: Unpaid leave is not a right but may be granted at the discretion of the employer. It is typically used when annual or sick leave entitlements have been exhausted.

Special or Compassionate Leave

What it is: Leave granted for reasons not covered under other leave types, such as attending court, religious observances, or serious personal matters.

Entitlement: This is usually at the employer's discretion and may be paid or unpaid depending on company policy or collective agreements. Each area has an agreed amount of days (refer to Main Collective Agreement as per area).

Religious Culture Day/Holiday Leave

What it is: Leave granted to employees who celebrate special days set aside by particular faiths to commemorate significant events, practices, or beliefs.

Entitlement: Labour Law does not regulate leave for religious holidays. At present, the situation is that should an employee wish to take leave for the purpose of religious holidays other than an official public holiday, the employee must take paid annual leave or unpaid leave. Any paid annual leave taken will be deductible from the employee's annual leave entitlement.

Special Circumstances

Injury on Duty and Sick Leave

If an employee is unable to work because of an accident or occupational disease, as defined in the Compensation for Occupational Injuries and Diseases Act, then any period of absence is not taken from ordinary sick leave, unless there is no compensation payable in terms of the Act.

Understanding the different types of leave ensures that both employers and employees manage time off responsibly and in accordance with labour laws. Employers should maintain clear leave policies and keep proper records, whilst employees should familiarise themselves with their rights and responsibilities when requesting leave.

If you are unsure about specific leave entitlements, always refer to your company employment contract, Main Collective Agreement, or speak to your EOHCB representative.