Archive for the Basic Conditions of Employment Category

Question: Maternity leave payments

Posted in Basic Conditions of Employment, Leave, Questions and Answers with tags , on October 24, 2009 by labourlawoffices

Question:

I would like confirmation that employees who are on maternity leave are entitled to still receive the normal BCEA leave days accruing to them while they are on maternity leave.

Answer

Section 25 of the Basic Conditions of Employment Act, 1997 provides that an employee is entitled to at least 4 consecutive months’ maternity leave.  This leave is of the unpaid variety.  If proper regard is had to Section 20 of the Act regulating annual leave it becomes apparent that paid leave entitlements are linked and subject to the actual number of days an employee worked or was entitled to be paid.  It follows that unless an employee is on paid maternity leave, any maternity leave taken purely in accordance with the maternity leave provisions of the Act would not entitle such employee to accrue normal leave days while on maternity leave.

Legal rights of pregnant women at work

Posted in Basic Conditions of Employment, Dismissals with tags , , , , , on June 15, 2009 by labourlawoffices

Being pregnantLabour legislation affords a pregnant female employee four consecutive months’ unpaid maternity leave, which may commence at any time from 4 weeks before the expected date of birth or from a date from which a medical practitioner or midwife certifies that leave is necessary for the health of the mother or child.  No employee may work for 6 weeks after the birth (whether or not the child is born alive or miscarries), unless a medical practitioner or midwife certifies that it is safe for her to do so.  The only obligation on an employee is that she must notify the employer in writing of the date on which she intends to start maternity leave within 4 weeks of such date or when reasonably practicable.

Pregnant or nursing mothers who choose to return to work are also protected.  Employers may not employ them in work that is hazardous to the health of mother or child, and if the mother is required to do night work, the employer must offer her suitable alternative employment if there is a threat to her health and if reasonably practicable.

The wages of new and expectant mothers on maternity leave are covered by the State in terms of the provisions of the Unemployment Insurance Act.

An employer may not dismiss a female employee in any circumstances merely because she is pregnant.  The dismissal of women on the ground of pregnancy or for a reason related to her pregnancy or intended pregnancy is rendered automatically unfair by the Labour Relations Act, 1995.  The provisions of the Employment Equity Act, 1998 protects a woman from unfair discrimination based on her pregnancy, for example being denied promotion, being forced to take unpaid leave or made to work in conditions that endanger her health or that of her unborn child.  An employer’s refusal to permit an employee to resume employment after she was on maternity leave in terms of any law, collective agreement, or her contract of employment is regarded as a form of dismissal.  An employee who commits serious misconduct before or during her maternity leave may still of course be dismissed for such misconduct.  An employer may not dismiss a pregnant employee because she is physically incapable of doing her work while pregnant, or because she has become physically incapable of doing her work as a result of pregnancy.  So for example a woman who develops lengthy bouts of post-natal depression which renders her incapable of working, may not be dismissed because of the operational requirements of her job.  An employee who does not disclose at the time of appointment that she is pregnant can not be dismissed for “deceiving” her employer about her pregnancy.

An employee who has been unfairly dismissed by reason of her pregnancy or a reason related to her pregnancy will ordinarily be entitled to re-instatement, alternatively compensation up to a maximum of 2 years’ remuneration.  Dismissal by reason of an employee’s pregnancy is regarded as a form of automatically unfair dismissal and is adjudicated on by the Labour Court.  A dismissed employee must first refer an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration or to a Bargaining Council operating in the industry / sector in which the employee was employed.  If the dispute is not capable of settlement / resolution under conciliation by the CCMA / Bargaining Council the employee is entitled to refer the dispute to the Labour Court for adjudication.

Sick Leave

Posted in Basic Conditions of Employment, Questions and Answers with tags , , on December 3, 2007 by labourlawoffices

Question:

I employ a storekeeper who has exhausted his sick leave entitlement in both of the last two years. He is now approaching the limit of his sick leave entitlement for the third consecutive year.  Am I entitled to dismiss him?

Answer

The Basic Conditions of Employment Act, 1997 (‘the Act’) provides that an employee’s sick leave entitlement is calculated with regard to a sick leave cycle constituting a period of 36 months’ employment with an employer from date of commencement of employment, and on an ongoing basis. The Act provides that during such 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. 

The basic conditions of employment provided by the Act constitute a minimum floor of rights to which all employees are entitled. It follows that an employee can not be dismissed purely on the basis of using up all available paid sick leave days.  Where the employee excessively absents himself from work due to ill health, such employee would become entitled to unpaid sick leave in the normal course of events. If such employee fulfils a key duty or task or places unreasonable and impossible demands on the company and/or his fellow employees as a result of his constant and excessive absence from work, the employer may consider terminating employment based on operational requirements. 

To achieve such outcome the employer would have to consult with the affected employee and/or his trade union as required by the applicable provisions of Section 189 of the Labour Relations Act and show that the employee’s termination of employment became necessary based on the economic, technological, structural or similar needs of the employer.  However, if there is evidence available to show that the employee is in fact abusing his sick leave entitlement, in other words that he is absenting himself from work in circumstances where he is not in fact ill or unfit to attend work, such conduct may be regarded as misconduct and may form the subject of a disciplinary enquiry which may lead to dismissal.  In such an event, evidence of actual abuse eg false or fake medical certificates would naturally have to be proven.
 

Follow

Get every new post delivered to your Inbox.