| (1) | Subject to the provisions of subclause (2), an employer shall grant to each employee, other than a casual employee and a special-function casual employee or a contract waiter who is absent from work through incapacity— |
| (a) | in the case of an employee who works a four-day week, not less than 24 working days; |
| (b) | in the case of an employee who works a five-day week, not less than 30 working days' and |
| (c) | in the case of every other employee, not less than 36 working days' |
sick leave in the aggregate during any period of 36 consecutive months of employment with him, and shall pay such employee in respect of the period of absence in terms of this subclause an amount of not less than the wage he would have received had he worked during such period: Provided that—
| (i) | in the first 12 consecutive months of employment an employee shall not be entitled to sick leave on full pay at a rate of more than, in the case of an employee referred to in paragraph (a) above, one working-day in respect of each completed period of six weeks of employment, in the case of an employee referred to in paragraph (b) above, one working day in respect of each completed period of five weeks of employment, and in the case of an employee referred to in paragraph (c) above, one working day in respect of each completed month of employment; |
| (ii) | this clause shall not apply to an employee at whose written request an employer agrees to make 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 his incapacity in the circumstances set out in this clause the payment to him of not less than, in the aggregate, the equivalent of this wages for 24, 30 or 36 working days, as the case may be, in each cycle of 36 months of employment; |
| (iii) | 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 in respect of any incapacity, the amount so paid may be set off against the payment due in respect of absence owing to incapacity in terms of this clause; |
| (iv) | if in respect of any period of incapacity covered by this clause an employer is required by any other law to pay an employee his full wages, the provisions of this clause shall not apply. |
| (2) | An employer may, as a condition precedent to the payment by him of any amount claimed in terms of this clause by an employee in respect of any absence from work for a period covering more than two consecutive working days, require the employee to produce a certificate signed by a registered practitioner stating the nature and duration of the employee's incapacity: Provided that— |
| (i) | 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 certificate, his employer may during the period of eight weeks immediately succeeding the last such occasion require him to produce such certificate in respect of any absence from work; |
| (ii) | where an employee in an establishment that normally closes on a public holiday absents himself on the working day before and the working day after a public holiday, the employer may require him to produce a certificate in respect of such absence from work; |
| (iii) | where an employee in an establishment that is normally open on a public holiday absents himself from work on the day preceding such public holiday and on that public holiday, or on such public holiday and the day succeeding such holiday, the employer may require the employee to produce a certificate in respect of such absence from work. |
| (3) | For the purpose of this clause, the expression— |
| (a) | "employment" shall be deemed to include— |
| (i) | any period during which an employee is absent— |
| (aa) | on leave in terms of clause 13; |
| (ab) | on the instructions or at the request of his employer; |
| (ac) | on sick leave in terms of subclause (1) A; |
| (ad) | with the consent or condonation of his employer; |
| (ae) | for any reason not being in breach of the contract of employment; |
amounting in the aggregate, in any year, to not more than 10 weeks; and
| (ii) | any period during which an employee is absent doing military service; |
Provided that an employee shall not be entitled to claim as employment more than four months of any one period of such service or absence or unpaid leave: Provided further that any period of employment an employee has had with the same employer immediately before the date of coming into operation of this Agreement shall, for the purpose of this clause, be deemed to be employment under this Agreement, and any sick leave on full pay granted to such an employee during such period shall be deemed to have been granted under this Agreement;
| (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 for which compensation is payable under the Compensation for Occupational Injuries and Diseases Act, 1993, shall be regarded as incapacity only during any period in respect of which no disablement payment is payable in terms of that Act. |
(4)
| (a) | For the purpose of this clause, "employer" includes— |
| (i) | in the case of the death of an employer, the executor of his estate, or his heir or legatee; and |
| (ii) | in the case of the insolvency of an employer or the liquidation of his estate or sale or transfer of his business, the trustee or liquidator or the new owner of the business, if such executor, heir, legatee, trustee, liquidator or new owner continues to employ that employee: |
Provided that where the previous employer gave his employee appropriate notice of termination of employment in writing, the new employer shall not be liable to pay any arrear remuneration.
| (b) | Notwithstanding anything to the contrary in this subclause, when an employer sell his business and he and the purchaser make provision in written contract that the purchaser "takes over" the business with all assets and liabilities, or words to that effect, then the purchaser shall be liable to pay all arrear remuneration in terms of this clause. |
