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Don’t allow it to be abused

Bruniquel Bulletin #2-2014

The 1997 amendment to the Basic Conditions of Employment Act introduced a new form of leave for employees –family responsibility leave. This applies to any employee who has been in employment with an employer for longer than four months and who works for at least four days a week for that employer.

The Act requires that an employer must grant an employee, during each leave cycle at the request of the employee, THREE days paid leave which the employee is entitled to take:-
(a) when the employee’s child is born;
(b) when the employee’s child is sick;
(c) in the event of the death of:

i. the employee’s spouse or life partner;
ii. the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.

This definition is quite narrow. It does not cover time off to administer to a sick husband or wife. It does not cover the death of one’s mother-in-law or father in-law and it does not cover time off to attend the funerals of extended family members.

This last point can lead to misunderstandings by African traditionalists who view one’s father’s brothers as ‘fathers’ and not ‘uncles’ (this is especially so in the case the older brother – uBaba omkhulu). All members of the extended family are also viewed as brothers and sisters and not as cousins. Such employees might well expect family responsibility leave to attend the funeral of extended family members who are not included in the definition. It is important therefore to establish exactly who has died as the employee might well claim, in all sincerity, to have more than one father and a very large number of brothers and sisters!

With regard to the death of in-laws, where there is no surviving son, a son-in-law might well be expected to make funeral arrangements and will certainly be expected to attend the funeral. This applies to all cultural groups within our country but, interestingly the BCEA does not recognise this.

Very few employers would begrudge a good employee taking time off work at a time of bereavement or to attend to a sick child. The problem is that there are always people who abuse privileges and like sick leave, family responsibility leave is open to abuse. It therefore needs to be closely monitored and controlled.

Section 27 (5) of the BCEA states: Before paying an employee for leave in terms of this section, an employer may require reasonable proof of the event for which leave was required.

This proof can include:-
– a medical certificate if the leave was taken in order to look after a sick child; or
– in the event of a DEATH, a death certificate, a certificate or letter from an undertaker, a religious leader or person officiating at the funeral, or where the funeral is to take place in a tribal area, a letter from the inkosi (traditional leader).

An employee who fails to produce proof to cover his or her absence is not entitled to paid leave and may be subject to disciplinary action, including dismissal, depending on the circumstances.

Typically, employees who abuse family responsibility leave also abuse sick leave, showing a trend of absences before and after weekends, pay days and public holidays. An employee with a history of intermittent absences who claims family responsibility leave should be questioned very closely and his or her story verified. The employee should also be required to produce appropriate documentation to verify the absence. Such documentation should be checked, particularly the practice number if the employee claims that they were absent due to the sickness of a child.

Where there are inconsistencies in the employee’s story, the employer should simply refuse to pay family responsibility leave. The onus will then be on the employee to go to the Department of Labour to lodge a complaint. Very few employees who are being untruthful are likely to do this, knowing that the true cause of absence may emerge and may result in dismissal for dishonesty!

Bruno Bruniquel