Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997)Sectoral DeterminationsSectoral Determination 2 : Civil Engineering Sector, South Africa18. Sick leave |
| (1) | "Sick leave cycle" means the period of 36 consecutive months' employment with the same employer immediately following— |
| (a) | an employee's commencement of employment; or |
| (b) | the completion of that employee's prior sick leave cycle. |
| (2) | During every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. |
| (3) | Despite subclause (2), during the first six months of employment, an employee is entitled to one day's paid sick leave for every 26 days worked. |
| (4) | During an employee's first sick leave cycle, an employer may reduce the employee's entitlement to sick leave in terms of subclause (2) by the number of days sick leave taken in terms of subclause (3). |
| (5) | Subject to subclause (7), an employer must pay an employee for a day's sick leave— |
| (a) | the wage the employee would ordinarily have received for work on that day; and |
| (b) | on the employee's usual payday. |
| (6) | An agreement may reduce the pay to which an employee is entitled in respect of any day's absence in terms of this clause if— |
| (a) | the number of days of paid sick leave is increased at least commensurately with any reduction in the daily amount of sick pay; and |
| (b) | the employee's entitlement to pay— |
| (i) | for any day's sick leave is at least 75 percent of the wage payable to the employee for the ordinary hours the employee would have worked on that day; and |
| (ii) | for sick leave over the sick leave cycle is at least equivalent to the employee's entitlement in terms of subclause (2). |
| (c) | in the first 36 months of employment, an employee is absent owing to incapacity for a period in excess of the sick leave accrued in terms of subclause (2), the employer shall not, at that stage, be required to effect any payment in respect of the excess sick leave taken. |
| (d) | However, if the employer has not previously done so, he or she shall at the end of the first cycle of 36 months of employment pay the employee an amount equal to not less than the difference between the sick leave payment made earlier and the employee's wage for the full period of incapacity, up to a maximum of 36 work-days. Such compensation shall be affected at the rate of the employee's wage as at the commencement of the incapacity: |
| (e) | Provided further that where the contract of employment terminates before the end of the said first cycle the employee shall be entitled to claim payment from the employer of an amount equal to the difference between the sick leave pay already received and the wage for the full period of incapacity, but not exceeding payment at a rate of more than one work-day's wage for each completed of 26 days worked, and for the purposes of this proviso the expression "wage" shall mean the wage the employee was receiving as at the commencement of incapacity; |
| (f) | where an employer is by any law required to pay fees for hospital or medical treatment in respect of an employee, and pays such fees, the amount so paid may be set off against the payment due in respect of absence owing to incapacity in terms of this clause; |
| (g) | no unused sick leave may be accrued from one cycle to another. |
| (7) | An employer may, as a condition precedent to the payment of any amount claimed in terms of this clause by an employee in respect of any absence from work— |
| (a) | for more than three consecutive work-days; or |
| (b) | on the work-day immediately preceding or the work-day immediately succeeding a Sunday or a paid holiday, require the employee to produce a certificate signed by a registered medical practitioner stating the nature and duration of the employee's incapacity: Provided that, when an employee has, during any period of up to eight weeks, received payment in terms of this clause on two or more occasions without producing such a certificate, the employer may, during the period of eight weeks immediately succeeding the last such occasion, require the production of such certificate in respect of any absence. Furthermore, an employer may require an employee to obtain a certificate issued by a medical practitioner nominated by the employer but at the employer's expense in order to satisfy the requirements of this clause. |
| (8) | For the purposes of this clause the expression— |
| (a) | "employment" shall be deemed to include any period during which an employee is absent— |
| (i) | on leave in terms of clause 17 or on the instructions or at the request of his employer or on sick leave in terms of subclause (2) amounting in the aggregate in any period of 12 months to not more than 10 weeks; and |
| (ii) | due to the employee not being required to work because of the vagaries of the weather, slackness of trade or a breakdown of machinery or plant; |
| (b) | "incapacity" means inability to work owing to any sickness or injury other than sickness or injury caused by an employee's own misconduct: Provided that any such inability to work, caused by an accident or a scheduled disease for which compensation is payable under the Compensation for Occupational Injuries and Diseases Act, 1993, shall only be regarded as incapacity during any period in respect of which no disablement payment is payable in terms of that Act. |
| (9) | Clause 18, save for this subclause, shall not apply— |
| (a) | to an employee at whose written request the employer makes contributions, at least equal to those made by the employee, to any fund or organisation nominated by the employee, which fund or organisation guarantees to the employee in the event of incapacity in the circumstances set out in this clause, the payment to him or her of not less than in the aggregate the equivalent of the employee's wage for 36 workdays in each cycle of 36 months of employment, except that during the first 36 months of the payment of contributions by the employee, the guaranteed rate may be reduced by not less than the rate of accrual set out in the first proviso to subclause (2); |
| (b) | in respect of any period of incapacity of an employee for which the employer is required by any other law to pay to the employee not less than his or her full wages. |