Unpaid Leave Policy of South Africa as per BCEA

The unpaid leave policy in South Africa is regulated by the Basic Conditions of the Employment Act BCEA. However, in BCEA, there is no specific mention of an employee’s entitlement to unpaid leave. The act only mentions unpaid leaves in cases where the employee has already exhausted their paid sick or annual leaves.

Here, I have discussed all situations in which employees may be allowed to take unpaid leaves and their consequences. So dive right in.

Exhausted Annual Leave

If the employee has already exhausted all of his/ her annual leaves within 12 months, he has no option but to apply for the unpaid leaves. Moreover, if the employer has a period of annual shutdown and he/ she has used all the annual leaves before this time, the shutdown period will be treated as unpaid.

Exhausted Sick Leave

Like the annual leaves, the BCEA gives the employees two consecutive days of leave without providing a medical certificate. However, if the employee takes a third day off and does not produce the certificate for the employer, the employer has every right to consider it as unpaid leave. Ideally, employees should attach a medical certificate with their leave request early on to avoid any confusion.

• Please note that the weekends and public holidays following the two paid sick leaves are not counted as consecutive days.

Calculation of Unpaid Leave

In each case mentioned above, it is entirely up to the employer’s discretion whether they have an intention to grant the unpaid leave to the employees. But when unpaid leave is granted, the calculation is usually dependent on the average number of working days per period.

Let’s say, you are an employee who works five days a week and receives a fixed monthly salary, your salary will be divided by 21.67 to calculate the amount that will be deducted for each day of unpaid leave. Here, 21.67 is determined from the following expression.

52 weeks x 5 days per week / 12 months = 21.67

Maternity Leave

Apart from this, maternity leaves as defined by the BCEA are also considered unpaid, as long as the assistance is not covered by the UIF payments. It is a four-month unpaid leave, starting one month before the anticipated birth date of the child.

According to the terms of maternity leave, the employer is subjected to give six weeks of leave for the employees, on receiving a one-month notice. Moreover, the employee has the right to extend the leave or shift the leave cycle earlier than one month before the birth date.

Either way, the leave period is treated as unpaid and employees are not entitled to their regular wages. However, the employer cannot alter the status of the worker. Upon completion of the leave, the employee will be offered a suitable alternate job.

Also check our detailed guide on Maternity Benefits in South Africa.

Deductions From Salaries

Section 20 (6) of the BCEA suggests that the employer must grant an unpaid leave to an employee who has submitted a written request. But if the employee does not have any annual leave available, it will be deducted from his/ her salary. Keeping this in mind, the BCEA, Section 34 mentions the deduction of remunerations on unpaid leaves, as follows.

An employee may not deduct from the employee’s remuneration unless the employee in writing agrees to the deductions in the agreement or the deductions are permitted in terms of law, collective agreement, or a court order.

Some employees may interpret that the payments may not be deducted from employees who didn’t work, but it is not true. There is an obligation on the employee to work to be remunerated under the labor legislation. To understand this, let us define some terms from the BCEA chapter 1.

• Remuneration: Any payment owing to any person in return for his work for the other person.
• Wages: The amount of money payable or paid to the employee in respect of ordinary working hours.
• Employee: Any person who works for another person and receives remuneration.

Given these terms, it is clear that an employee must work to be remunerated. The fact that deductions from salaries are made in cases of unpaid leaves does not mean they are made from the employee’s remuneration. Simply put, employers are recommended to act against workers who stay away from work without proper authorization and proof of their leaves.

In conclusion, it is important to submit a written application to receive unpaid leave, and even then, it is solely up to the employer to allow it or not. Please note that if you are granted unpaid leave, you will have to give up a small amount of your monthly salary each day.