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WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 15603
Experience:  L.LB (UOVS)
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A 3 year cycle sick leave allows for 240 hours or 6 weeks.

Resolved Question:

A 3 year cycle sick leave allows for 240 hours or 6 weeks. One of our staff members(earning above R172000.00 per annum) is in the first year of the new cycle and has already used her entitlement of 80 hours for the first year. She now needs to go for a operation that requires 6 weeks sick leave, are we legally obliged to allow the remainig 4 weeks to be taken in advance. Her 2nd year in the cycle commences in June. The question raised by this staff member is:
Why does the labour law allow for 6 weeks over a 3 year period if the staff are not allowed to take this in full within the first year? According to me should the employer allow this to be done it would be based on company policy. It makes sense that a written agreement should then be entered into which will allow the employer to deduct any sick leave taken in advance as unpaid leave or leave due, should the employee resign within this cycle. Is the employer by law compelled to give the full Sick leave per cycle within the first year?

Your assistance with the above matter will be appreciated.

Kind regards

M van Staden
E-mail :[email protected]
Submitted: 5 years ago.
Category: South Africa Law
Expert:  WCLawyer replied 5 years ago.

Good day.

Has she worked there more than 6 months?

Customer: replied 5 years ago.

She started in June 2005

Expert:  WCLawyer replied 5 years ago.
You see, sick leave does not work like that. You have 36 month cycles and you have the amount of sick leave days that you normally would have worked in a six week period in that cycle. So, sick leave cycles run in 36 month cycles, not in 12 month cycles. Let us assume he normally works Monday to Friday, then he will have 30 days sick leave every 36 months.

This he can take consecutively (except in the first six months of the first cycle) if necessary, provided that a medical doctor has booked him off sick. It is not a matter of 10 days every twelve months. It is 30 days every 36 months.

So, if he has sick leave days left in this cycle, he can take them as paid sick leave, consecutively, provided that a doctor has booked him off.
Customer: replied 5 years ago.
Thanks for your reply. It is really done in a clear and understandable manner. Another question to be raised relating to the same scenario is this:
Should she take all her sick leave now and resigns in the 2nd year of the cycle
are we permitted to take the excess sick leave granted as paid leave/unpaid leave?
How many sick leave days is she entitled to should she resign/retire within the first six months of a new 3 year cycle.

Thank you
Expert:  WCLawyer replied 5 years ago.

1. No, because there are no excess leave. She is entitled to 30 days (as per the example) within that period. It is different from annual leave where the act makes provision for an agreement between employer and employee that one day leave accrues for every 17 days worked. There is no such allocation for sick leave in the BCEA. In other words: where it is possible to calculate excess annual leave, it is not possible, because of the wording of the act, to calculate excess sick leave, which leads to the conclusion that there is no such thing as excess sick leave.

2. The Act states that, in the first six months of your very first sick leave cycle, you get one day for every 26 days worked. This is only applicable in your first six months of employment. In other words, for this employee, this clause would have lapsed in November 20005. In July 2008, the second sick leave cycle would have started and she would have had 30 days from 1 July 2008 until 1 August 2011. On 1 August 2011, she would have received 30 days for the third cycle, without the allocation of one day for every 26 days being applicable.

Customer: replied 5 years ago.
What are the provisions of the act that do not apply to this employee because of earning above the R172000 p.a. threshold as opposed to an employee who earns less than the threshold?
Expert:  WCLawyer replied 5 years ago.
Overtime. Where en employee earns over the threshold, the sections in the Act dealing with overtime is not applicable to them.
WCLawyer and other South Africa Law Specialists are ready to help you
Customer: replied 5 years ago.
I really must congratulate you with the manner this query was dealt with. Thanks for all your help. This whole problem would have been dealt with in the wrong way if I did'nt happen to find you on the Internet. Thanks again and keep the good work up. Should I run into a problem again I will most certainly make use of your service.

Kind regards

Expert:  WCLawyer replied 5 years ago.
It is only my pleasure.