Question: Is an employee on a fixed term contract only entitled to proportionate sick leave?

Answer: There are differing views on this issue.

View 1:
The BCEA provides as follows:
Section 22 (1): “Sick leave cycle” means a period of 36 months’ employment with the same employer.
Section 22(2): During every sick leave cycle, an employee is entitled to an amount of sick leave that is equal to the number of days the employee would normally work during a period of six weeks.
By refering to a sick leave cycle of 36 months, the BCEA envisages employment for at least a period of 36 months. The BCEA is silent on sick leave entitlement for employment for any period shorter than the sick leave cycle of 36 months. By implication, where the duration of employment is shorter than 36 months, the employee is only entitled to sick leave that is proportionate to that shorter period.

View 2:
Section 22(3) provides that during the first six months of employment an employee is entitled to one day’s paid sick leave for every 26 days worked. This is the only concession that the BCEA makes. So if a worker is an ‘employee’ and works more than 24 hours a month for an employer he or she is entitled to the full amount of sick leave after 6 months. An employer cannot provide less because that seems ‘fairer’ to the employer. If the BCEA does not allow for the exception there isn’t one. It is important to remember that sick leave is awarded for a cycle of 36 months, not if the employee has worked for 36 months.

Further question: What happens if a permanently employed person uses all sick leave and then resigns before the end of cycle – can the employer recover the amount that was overpaid?
Answer:

View 1:
Yes, the same principle applies. However, the provisions of s 34 of the BCEA (deductions from an employee’s remuneration) must be adhered to.

View 2:
No, the entitlement to sick leave is a right and no employee can be prejudiced for exercising rights given by the BCEA. See s79 of the BCEA. There is no way that an employer would be allowed to make deductions in the circumstances posed above.

Note: These snippets of information are based on frequently asked questions and will be circulated to subscribers on a regular basis. Labourwise subscribers are invited to submit questions on matters that they believe would be of general interest to employers.

Disclaimer: The material above is provided for general information purposes only and does not constitute legal or professional advice. Neither the author nor the publisher accepts responsibility for any loss or damage that may arise from reliance on information contained in this article.