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Unlegislated ‘other’ leave not a right

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Employers are free to offer staff various types of leave, not covered by legislation, but recognised and governed by company policy and contracts – however, as HCM experts explain, this ‘other leave’ is not a right and ought to be seen as a privilege.
Nicol Myburgh, head of HR business unit at HR and HCM solutions specialist CRS Technologies, distinguishes leave covered by the Basic Conditions of Employment Act (BCEA) – including annual leave, sick leave, family responsibility and maternity leave – from ‘other leave’ including study leave, paternity leave and cultural leave, for example.
For employers, there are a host of issues that need to be kept in mind when regulating ‘other leave’.
As Myburgh explains, leave that falls into this category is not governed by legislation and therefore is at the discretion of the employer in terms of how it is structured and applied.
Additionally, HR and HCM experts agree that these types of leave must be regulated by company policy, particularly the reasons why it is approved and when it is approved, all of which must be substantiated to prevent any feeling of discrimination or bias treatment among staff. It is also possible that these forms of leave may be viewed as benefits, and that the refusal of an application may give rise to claims of unfair labour practises, and or breach of contract.
“Another important factor to consider is that some of these leave types – especially study leave – are offered by so many companies, that many employers have come to believe this is a statutory type of leave, and employers are obliged to provide it. This is not the case, study leave is not compulsory and even if an employer provides for it, they can make their own determination thereon,” says Myburgh.
CRS Technologies advocates that before additional leave types are approved, companies conduct an in-depth analysis to identify business risk with reference to operational requirement and the amount of staff members necessary to achieve operational goals.
“For instance if an employee takes leave that keeps him/her away from the office for a long period of time, like sabbatical leave, would the employer still be able to meet its operational requirements,” Myburgh adds.
It is also advisable to keep abreast of legislative changes that impact on leave management.
Although ‘other leave’ is not covered by legislation, Myburgh reminds the market that there may be some changes on the horizon.
On 25 November 2015, a draft bill was published in the government gazette which proposes to amend the BCEA, and the Unemployment Insurance Act, 2001.
Significant proposed changes include:
* 10 consecutive days parental leave when a child is born or adopted.
* The right to claim payment of parental benefits.
* 10 consecutive weeks adoption leave if the child adopted is below the age of two.
* If there are 2 adoptive parents, one of the parents may apply for parental leave and the other adoption leave.
* The right to claim payment of adoption benefits.
* 10 weeks of ‘commissioning parental leave’ for employees in a surrogate motherhood agreement.
* If there are 2 commissioning parents, one of the parents may apply for parental leave and the other parent may apply for commissioning parental leave.
Myburgh emphasises that employers familiarise themselves with the differences between BCEA and Bargaining Council or Sectoral Determination regulations, particularly where it applies to the governance of other leave.
This can only lead to improved operational efficiency and a more focused, productive and balanced work environment.