Study Unit 4 Flashcards
BCEA and NMWA
What is the purpose of the BCEA?
Advance economic development and social justice by establishing minimum conditions of employment
What is the effect of the BCEA default conditions?
The statutory condition is automatically applied where a contract is silent about a basic condition and if a contract offers more favourable conditions it overrides the BCEA
Who are the people excluded from BCEA protection?
Unpaid volunteers, members of state security agency, people employed on vessels at sea
Which people are excluded from the BCEA working time protection?
Managerial positions, sales staff, anyone working less than 24 hours, anyone who earn more than threshold amount
How does S9 and S10 of BCEA regulate working time?
S9-Employee not work more than 45 h/week,9h/d or 8h/pd on a 6 day week
S10- Employees not work more than 10h overtime p/week and are paid 1.5x hourly wage or receive paid time off for overtime work
A. S14- Meal interval of at least 1 hour after 5 consecutive hrs of work
(can by agreement be reduced to 30 minutes or dispensed with
if employee works less than 6 hours)
What are the 7 types of leave the BCEA provides for?
1.Annual
Leave
2.Sick Leave
3.Family
responsibility
Leave
4.Maternity Leave
5.Commissioning
Parental Leave
6.AdoptionLeave
7.Parental
Leave
How is annual leave calculated?
-In a 12 MONTH LEAVE CYCLE, 21
CONSECUTIVE PAID DAYS LEAVE and
-ON AGREEMENT an employee has 1 DAY FOR EVERY 17DAYS worked
-ON TERMINATION: REMUNERATED
FOR ANY LEAVE ACCRUED BUT NOT
TAKEN
When must an employee produce a medical certificate?
If the employee has been absent for more than 2 days or more than 2 occasions in a 8 week period
Sick Leave Case Law
What did the Kievits Kroon state regarding a medical certificate from a traditional healer?
Medical certificates from a traditional healer
Employer should’ve considered the documents she provided from ehr traditional healer
Court found she was unfairly dismissed
Consequences of Sick leave Case Law
What did the Woolworths case state regarding consequences of abusing sick leave?
Principles established
-The LAC held that the employee acted dishonestly in absenting himself from work on the basis that he was too ill to perform his duties but could attend a rugby match
-employee claiming sick leave that wasn’t due to him was dishonest and jeopardises the trust relationship between an employer and an employee. Employee previously abused sick leave but given warnings
-The relationship of trust because of his initial unreliability and now dishonest conduct had broken down. Therefore, the court held that dismissal was clearly the appropriate sanction.
Consequences of abusing Sick Leave Case Law
What did the SARS v Mathebula case state regarding the consequences of abusing sick leave?
Principles
-Employee took sick leave but was in fact at a protest.
-Produced a medical certificate for last 3 days of leave but not first 2 days
- Disciplinary action he was found guilty and dismissed.LC upheld dismissal
-Misconduct of M was based on dishonesty and abuse of sick leave policy
-Honesty forms the foundation of the employee-employer relationship. Where the true purpose of sick leave is ignored by employees for disingenuous reasons, employees run the risk of disciplinary action.
How is maternity and parental leave regulated?
1.An employee may not work 6 weeks after birth and an employee who miscarries has 6 weeks leave.
2.Maternity leave is 4 months unpaid but they can claim from UIF
3. BCEA (sections 25A to 25C)
✓Parental Leave (10 consecutive
days)
✓Adoption Leave (10 consecutive
weeks)
✓Commissioning parental leave
What is family responsibility leave? S27 of BCEA
*For death of grand parents, parents or adoptive parents, spouse or life partner, siblings, children or adoptive children
* Also for illness of a child
* May require proof like medical/death
certificate
=If worked for longer than 4 months and
at least 4 days a week entitled to 3 days paid leave
in a 1 year leave cycle
Constitutionality of all forms of parental leave Case Law
What did the van wyk case state regarding the constitutionality of all forms of parental leave?
Maternity ,Parental ,
Adoption and
Commissioning Parental
Leave
-Court held that all provisions of BCEA leave are unconstitutional and violate S9 equality provision and all leave days should be consistent
- Court gave legislature 2 years to rectify this and stated that parents collectively have 4 months of leave
How is sick leave calculated?
Sick leave cycle is 3 years and sick leave is calculated on the number of days an employee works in a 6 week period
