Chapter Three: Leave

19. Application of this Chapter

1. This Chapter does not apply to an employee who works less than 24 hours a month for an employer.

2. Unless an agreement provides otherwise, this Chapter does not apply to leave granted to an employee in excess of the employee's entitlement under this Chapter.

20. Annual leave

1. In this Chapter, "annual leave cycle" means the period of 12 months' employment with the same employer immediately following--

   1. an employee's commencement of employment; or
   2. the completion of that employee's prior leave cycle.



2. An employer must grant an employee at least--

   1. 21 consecutive days' annual leave on full remuneration in respect of each annual leave cycle; or
   2. 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;
   3. 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 six months after the end of the annual leave cycle.

5. An employer may not require or permit an employee to take annual leave during--

   1. any other period of leave to which the employee is entitled in terms of this Chapter; or
   2. 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--

    1. in accordance with an agreement between the employer and employee; or
    2. 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--

    1. on termination of employment; and
    2. in accordance with section 40(b) and (c).

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--

   1. at the employee's rate of remuneration immediately before the beginning of the period of annual leave; and
   2. in accordance with section 35.



2. An employer must pay an employee leave pay--

   1. before the beginning of the period of leave; or
   2. 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--

   1. an employee's commencement of employment; or
   2. 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 six weeks.

3. Despite subsection (2), during the first six 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--

   1. the wage the employee would ordinarily have received for work on that day; and
   2. 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--

   1. the number of days of paid sick leave is increased at least commensurately with any reduction in the daily amount of sick pay; and
   2. the employee's entitlement to pay--
      1. 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
      2. 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 two consecutive days or on more than two occasions during an eight-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

1. An employee is entitled to at least four consecutive months' maternity leave.

2. An employee may commence maternity leave--

   1. at any time from four weeks before the expected date of birth, unless otherwise agreed; or
   2. 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 six 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 third trimester of pregnancy or bears a stillborn child is entitled to maternity leave for six weeks after the miscarriage or stillbirth, whether or not the employee had commenced maternity leave at the time of the miscarriage or stillbirth.

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--

   1. commence maternity leave; and
   2. return to work after maternity leave.



6. Notification in terms of subsection (5) must be given--

   1. at least four weeks before the employee intends to commence maternity leave;
   2. 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, 1966 (Act No. 30 of 1966).

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.

2. During an employee's pregnancy, and for a period of six 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--
   1. 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
   2. it is practicable for the employer to do so.

27. Family responsibility leave

1. This section applies to an employee-

   1. who has been in employment with an employer for longer than four months; and
   2. who works for at least four days a week for that employer.



2. An employer must grant an employee, during each annual leave cycle, at the request of the employee, three days' paid leave, which the employee is entitled to take--

   1. when the employee's child is born;
   2. when the employee's child is sick; or
   3. in the event of the death of--
   1. the employee's spouse or life partner; or
   2. 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--

   1. the wage the employee would ordinarily have received for work on that day; and
   2. 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 [1](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.