Frequently Asked Questions

We have an employee who has exhausted all their sick leave for this three-year cycle, as well as the annual leave for the current cycle. The employee now needs to go into hospital for an operation and will be off work for six weeks. Are we obliged to pay him?

Unfortunately, if all sick leave has been exhausted as well as all available annual leave in the current cycles, and the employee requires further sick leave, there is no legal obligation on the employer to pay the employee and the additional requirement may be treated as unpaid leave.

I have resigned and have 25 days leave due to me. Can I take this leave during my notice period? I have told my employer I want to take my leave in my period of notice but he refuses.

Section 20 (5) (b) of the BCEA states clearly that "the employer may not require or permit an employee to take annual leave during any period of notice of termination of employment.”

This means that, in terms of the act, an employee is prohibited from taking leave during his period of notice on resignation, and the employer is prohibited from forcing the employee to take leave during any period of notice.

We have an employee who has given us four weeks notice, but the employment contract states one calendar month - what can we do?

The conditions of the employment contract are lawful, provided that the period of notice applies to the employer - namely that if the employee should be retrenched or dismissed with notice, then the employer is obliged to also give the employee one calendar months notice. If the condition applies to both parties, then the employer can force the employee to comply with the condition. Should the employee refuse and simply walked out, the only thing the employer can do is sue the employee for damages in terms of breach of contract.

We have a clause in our contract stating that employees who earn over the threshold amount as determined by the Minister, are exempted from the provisions relating to maternity leave. The clause states further that the company will stipulate what period of maternity leave they are prepared to allow. Is this legal?

This is not correct. Section 25, which sets out the provisions for maternity leave, he is not stipulated as an exclusion in the Ministerial determination. All employees, irrespective of earnings, are entitled to 4 months unpaid maternity leave in terms of the BCEA. There is no legal obligation on any employer to pay the employee a salary or portion of salary during a period of maternity leave, but the employer is legally obliged to allow the employee the full period of four months as a minimum.

We have a clause in our employment contract stating that if an employee is off sick on a Friday or a Monday, or on the Friday and a Monday, or if he is off sick the day before the day after a public holiday, he must produce a sick note, otherwise be time-off will be treated as unpaid leave. Is this condition legal?

Unfortunately, it is not a lawful condition. The BCEA states clearly in the section 23 that if an employee has been absent from work for more than two consecutive days (which means three days or more) then he is obliged to produce a medical certificate. A Friday is 1 day only, and a Monday is 1 day only, and the same applies to the day before and the day after a public holiday - those days each constitute only 1 day, and therefore no medical certificate is required. However, if the employee is absent on more than two occasions - even if the occasion is 1 day only - during the same eight-week period, then on the third occasion of absence during that eight-week period the employer is entitled to insist on a sick note, and if it is not produced, the employer is not obliged to pay the employee for the time-off.

We have an employee who has resigned and walked out on 24 hours notice. He has already been paid his salary, but he is owed 15 days leave. Can we withhold his leave pay in lieu of notice?

Unfortunately you are not permitted to do that. Section 40 of the BCEA makes it clear what payments must be made to an employee upon termination of employment, and this includes outstanding leave pay.

The only way this can be overcome is if it is inserted into the employment contract as a condition of employment that should the employee contravene the provisions regarding the period of notice required, then the employer would be entitled to withhold salary or leave pay in lieu of notice. However, you would not be entitled to now rush out and amend all your existing employment contracts. If you wish to do that, it can only be done by consultation with your existing employees.

We have an employee who has been with us for 12 months. We sent him on a training course when he joined us, which cost us R8000. He has now resigned - can we make him pay us back for the cost of the training course?

If no (preferably written) agreement was entered into before the employee embarked on the training, to the effect that he would be liable to repay you for the cost of the training should he leave your employment, then there is nothing you can do.

You can't force such a condition on him now because it is after the fact. The conditions attached to the training should have been made clear to the employee in an agreement, prior to the training. In that way, the employee would have been given a fair opportunity to refuse the offer of training should he have felt that any of the conditions attached to it were unacceptable to him for whatever reason.

We have an employee who has just resigned and accepted employment with a competitor. Our line of business is highly competitive we need to protect ourselves in some way. Can we force him to sign a Restraint of Trade Agreement now that he has resigned?

Unfortunately not. It is now for too late, and the horse has escaped. I might add that the employee would indeed be very stupid to sign such an agreement after he has resigned.

You cannot force any employee to sign anything that he does not wish to sign.

credit to SA Labour Guide.