A very frustrated employer approached me recently to seek advice on compassionate leave.

He is the owner of a small business and one of his key employees stayed away from work for two days without contacting him.

On his return, the employee informed our reader (the employer) that his brother’s wife had passed away and that he (the employee) took two days’ compassionate leave to support his sibling.

Having suffered a production loss over the two days that the employee was absent, the employer wants to know what action – if any – he can take against the employee.

He also wants to know what the labour law and specifically the Basic Conditions of Employment Act (BCEA) say about compassionate leave.

In terms of the BCEA, compassionate leave is known as family responsibility leave. In terms of this section of the act, it is only applicable for the death of an employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild, sibling, or when an employee’s child is ill or born.

To be eligible for compassionate leave an employee must have worked for the employer for longer than four months and for at least four days per week.

It is important to note that compassionate or family responsibility leave is additional to any other form of leave (such as sick, maternity or annual) an employee may qualify for.

An employee who qualifies for family responsibility leave is entitled to three days off per annual leave cycle and he or she may take leave for part of a day if required. It is important to note that by collective agreement by relevant parties the number of days may vary.

The compassionate leave cycle runs from January to December. If no family responsibility leave is taken during this period, the leave lapses and a fresh cycle starts the following year.

Employees must bear in mind that employers have certain operational requirements and that they may have to make interim arrangements to prevent a loss of production should any number of employees not be able to report for duty.

Our reader could for instance have hired some temporary workers to prevent such losses had he known in advance that the employee would be absent.

Hence the employee has a responsibility towards the employer to inform him or her (the employer) of any situations that could arise that may require him or her (the employee) to take compassionate leave – as well as the duration thereof.

In order to ensure that compassionate leave is taken for the reasons as set out above, an employer may at his or her discretion ask for reasonable evidence such as a medical, death or birth certificate.

The mere fact that an employee qualifies for compassionate leave does not mean that he or she may simply stay away from work. Employers may follow disciplinary procedures where employees stay away without their consent.

As stated above, no provision is made for when an employee’s husband, wife or life partner is sick (only a child).

The death of a sister-in-law – as with our reader’s employee – does not constitute grounds for family responsibility leave. The employee could however have requested normal leave.

In this case the employer may take disciplinary action against the employee.

Wikus van Rensburg is a well-respected labour law attorney in Port Elizabeth in Nelson Mandela Bay.

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Issued by:

Full Stop Communications

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082 575 7991

On behalf of:

Wikus van Rensburg Attorneys