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Leave Policy in South Africa: The US Company’s Guide to Leave Laws and Holidays

Expanding your US company, and want to work with South African talent? This guide walks you through the leave policy in South Africa set out by the BCEA and LRA employment laws.

Boulder view under indigo sky in Durban, South Africa

Jade MacRury

Published on July 14, 2022

Leave Policy in South Africa 🏝

If you’re looking to go global and hire international workers, you may want to consider South Africa for the following reasons:
  1. South Africans are fluent in English (as well as a few other languages).
  2. They can work in North American and European time zones.
Of course, you must familiarize yourself with local labor laws, including leave laws and holidays in South Africa, if you're looking to hire there.To support your company’s successful expansion, we’ll start with an overview of the employment arrangements that currently exist there before moving on to the seven types of leave policies set out in the Basic Conditions of Employment Act (BCEA) and the Labour Relations Act 66 of 1995 (LRA). Finally, we take a quick look at the basics of public holiday regulations from the Public Holidays Act 36 of 1994.

Employment arrangements in South Africa 👔

More employers are disregarding the traditional job boundaries of the employer-employee relationship (i.e., working eight hours a day and five days a week in an office) and are offering more flexible work options. Like other countries, the following arrangements are available in South Africa today:

Part-time work

Part-time employees work fewer than standard hours of work and are often employed on an ongoing basis.

Casual and seasonal work

Sometimes called "day laborers," casual and seasonal work is irregular employment often found in retail, tourism, domestic, and agricultural sectors.

Homework

Homework is a form of subcontracting that often takes place at home and is characterized by employment-type relationships.

Temporary employee

These are often workers employed by labor brokers or agencies to do temporary work. They are different from independent contractors.

Independent contractor

Courts employ a “dominant impression test” to determine whether someone is an independent contractor or an employee (see next section).

Independent contractor vs. employee: What’s the difference? 🆚

Independent contractors are excluded from the protective umbrella of the LRA. It's important to understand the differences between an independent contractor and an employee in South Africa because each type of worker has different requirements under South African laws.For the most part, an independent contractor is expected to:
  • Provide service and be paid for that specific service and
  • Work with a client instead of for an employer
In short, an independent contractor works for their own business, not for another company.To determine if this is the case, South African labor courts do not simply rely on how the employment contract is worded (i.e., if a person is defined as an independent contractor). This is where the “dominant impression test” comes into play.

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If one or more of the following are present, then the dominant impression is that the person is an employee:
  • the person’s hours of work are subject to the control or direction of another person, organization, or company;
  • in the case of a person who works for an organization or company, the person forms part of that organization or company;
  • the person is economically dependent on the other person, organization, or company for whom he or she renders services;
  • the person is provided with tools of trade or work equipment by the other person, organization, or company; or
  • the person only works for or renders services to one person, organization, or company.

Terms of leave: What are the seven types of leave in the BCEA? 🛩️️

The BCEA regulates all leave entitlements for qualified workers. Currently, it offers seven types of leave:
  • annual leave
  • sick leave
  • maternity leave
  • parental leave
  • adoption leave
  • commissioning parental leave
  • family responsibility leave

Paid Leave: Annual leave policy in South Africa

According to the BCEA, employees entitled to paid annual leave must receive leave pay at least equivalent to what they would have received had they worked for a period equal to the period of annual leave. They calculate the rate based on “the employee's rate of remuneration immediately before the beginning of the period of annual leave; and in accordance with section 35.As the employer, you must pay your employee leave remuneration either before the beginning of the period of leave or on the employee's usual pay day (by agreement).What do you need to remember about the annual leave policy in South Africa?

Annual leave cycle

The South African annual leave cycle refers to a period of 12 months with the same employer, calculated from either an employee's start date or the completion of their prior annual leave cycle.

Annual leave entitlement

As the employer, you must grant an employee 21 consecutive days' paid annual leave every annual leave cycle; and you pay for the number of normal working days that fall within that period.Annual leave is accrued, with employees starting their annual leave cycle at zero. This increases as time passes and maxes out 12 months later, which marks the end of the annual leave cycle.The BCEA allows the accrual of annual leave to be calculated in one of two ways:
  • By agreement, one day of annual leave on full remuneration for every 17 days worked and
  • By agreement, one hour of annual leave on full remuneration for every 17 hours worked.

The right to take annual leave on consecutive days

Employees are entitled to take annual leaves accumulated in one annual leave cycle on consecutive days. In other words, if they accumulated 15 annual leaves, they can take 15 consecutive days as annual leave.

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Legal requirement to grant annual leave

If an employee cannot take annual leave in one cycle, the unused leave is carried over to the next cycle. You must grant annual leave if your employee asks to take it within the first six months of the new cycle. This is a legal obligation.

Annual leave during the period of notice

You cannot force an employee to take annual leave during a period of notice of employment termination. They are not allowed to take annual leave voluntarily either.

Annual leave and unpaid leave

You must give your permission if your employee were to make a written request to take leave during a period of unpaid leave.

Annual leave and public holidays

You 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 they would ordinarily have worked.

Working during annual leave

You may not require or allow an employee to work during any period of annual leave. If they are on annual leave, they are not meant to be working.

Annual leave and the necessity of agreement between employer and employee

Annual leave must always be taken based on an agreement between the employer and employee. If you haven’t made such an agreement, then the employee will have to take their annual leave at the time suitable to you, provided you adhere to the stipulations of BCEA.

Exchanging annual leave for cash

Paid leave cannot be exchanged for cash except upon termination of employment.

Paid Leave: Sick leave policy in South Africa

On top of paid annual leave, your employee is also entitled to paid sick leave equal to:
  • The number of days they normally work in a six-week period and
  • The amount they would ordinarily receive for work on that day.
Pay must be given on your employee’s usual pay day.Like the annual leave policy, sick leave is also given in cycles. One sick leave cycle is the equivalent of 36 months (three years) of employment with the same employer, calculated from the employee's start date or the completion of their prior sick leave cycle.In other words, if your employee is working a five-day week, then they are entitled to 30 days of fully paid sick leave every 36 months. If they work a six-day week, then they are entitled to 36 days of fully paid sick leave every 36 months.Remember that the cycle lasts 36 months of continuous employment, which means that if your employee uses all 30 or 36 days within the first year (whichever is appropriate based on the number of hours worked), they have no more paid sick leave available until the cycle resets. Should they need sick leave the following year, they will have to take unpaid leave.

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Also, during the first six months of employment, your employee is entitled to only one day's paid sick leave for every 26 days they worked. Any sick leave days they take during this period will be deducted from the full 36 months’ entitlement.It isn’t until the first working day of their seventh month with the same employer that the balance of the full entitlement becomes available to them. They can then use those fully paid sick leave days whenever they need to over the course of the next 2.5 years (or three years, if they’re already on their second cycle).Finally, the BCEA allows for some flexibility. For example, your employee may prefer to receive only 75% of their pay when they take sick leave, in return for an increase in their sick leave entitlement to 37.5 or even 45 days of paid sick leave in every three-year cycle.

Unpaid Leave: Maternity leave policy in South Africa

Pregnant employees who work more than 24 hours a month are entitled to take at least four months of maternity leave, starting from “the four weeks before the expected date of birth, unless otherwise agreed; or 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.They are not allowed to return to work within six weeks of the delivery date without medical clearance from a midwife or a medical practitioner.Employees who have a stillbirth or a miscarriage during their third trimester are also entitled to six weeks of maternity leave.Note: This is not paid leave. The Basic Conditions of Employment Act does not require employers to pay employees that take maternity leave entitlement, but some do. Pregnant employees that do not get maternity benefits from their companies often contribute to the Unemployment Insurance Fund (UIF) set out by the Unemployment Insurance Act (UIA), which covers between 38% to 60% of their pay.

Unpaid Leave: Parental leave policy in South Africa

On January 1, 2020, South Africa’s parental leave policy was signed into law by president Cyril Ramaphosa. The following are now entitled to unpaid parental leave when their children are born or the adoption process has been finalized:
  • a father,
  • an adoptive parent (see Adoption Leave Policy section), and
  • surrogates (see Commissioning Parental Leave Policy section).
Parental leave is available to an employee who is a parent of a child and gives them ten consecutive calendar days of unpaid leave. It is gender-neutral.Note: Parental leave differs from maternity leave (see the previous section), which remains the same.Also, although all types of parental leave (including maternity) can be unpaid as far as the BCEA is concerned, companies could offer to pay all or a portion of them as an employee benefit.

Unpaid Leave: Adoption leave policy in South Africa

The adoption leave policy grants ten consecutive weeks of unpaid leave to an adoptive parent of a child under two years old. If they are a couple, only one adoptive parent is entitled to the adoption leave. The other can apply for normal parental leave (see above section on Parental Leave Policy).

Unpaid Leave: Commissioning parental leave policy in South Africa

Commissioning parental leave is available to an employee who:A single commissioning parent is entitled to ten consecutive weeks’ leave.Entitlement remains the same in the case of two commissioning parents. One will take commissioning parental leave,  while the other will apply for normal parental leave.Like other types of parental leave, this is not paid leave.

Legal Disclaimer:

The information contained in this site is provided for informational purposes only, and should not be construed as legal advice on any subject matter.

Paid Leave: Family responsibility leave policy in South Africa

This type of paid leave can only be used by a qualified employee (i.e., someone who works for at least four days a week and has worked for the employer for longer than four months).Unlike regular annual leave, the family responsibility leave cannot be carried over to the next cycle. Once the previous leave cycle has passed, anything that hasn’t been taken lapses.Family responsibility leave can be requested if:
  • The employee's child were to get sick or
  • The employee's spouse, life partner, parent (biological or adoptive), grandparent, child (biological or adopted), grandchild, or sibling were to die.
They can ask for part of a day or the entire working day, up to a maximum of three days.

Public Holidays in South Africa 🎄

As per the Public Holidays Act, 1994, an employee cannot be made to work on public holidays unless they agree to do so.The following holidays are paid:New Year's Day – January 1Human Rights Day – March 21Good Friday – Friday before Easter SundayFamily Day – Monday after Easter SundayFreedom Day – April 27Workers' Day – May 1Youth Day – June 16National Women's Day – August 9Heritage Day – September 24Day of Reconciliation – December 16Christmas Day – December 25Day of Goodwill – December 26According to Section 18 of the BCEA, if a public holiday happens when an employee is meant to be working, and they don't work, then they are entitled to be paid their normal wage for the day.If they do decide to work, then they are entitled to be paid a minimum of double their normal wage rate for the day.Note: If their normal wage rate plus their wage for the time worked equals more than double their normal wage rate, then they must be paid the higher of the two.Now, if an employee does work on a public holiday that is not part of their regular work schedule, then their employer must pay them a minimum of their ordinary daily wage rate, plus the amount they earn for the work done on that day.Any payment for public holiday work must be made on the employee's usual payday.

Work with talent from anywhere. Partner With Pilot. 👥

Partnering with Pilot can allow your company to work with global top-tier talent while staying compliant with local laws and regulations.In fact, not only do we specialize in ensuring your US-based company remains compliant with local rules and regulations, but we can also provide global payroll and benefits expertise for employees and contractors.We support contractor payments in more than 240 countries; our payees don’t have to use a debit card or e-wallet to receive their payments. Funds just go straight to your contractors’ bank accounts.

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