South African labour law does not have any specific legislation solely dealing with compassionate leave in the event of bereavement. However, the Basic Conditions of Employment Act, 1997 (BCEA) provides for what is termed family responsibility leave.

The BCEA was introduced specifically to give effect to the right to fair labour practices by establishing and enforcing basic conditions of employment and also regulating the variation of the basic conditions of employment.

Section 27 of the BCEA provides that an employee who has been in employment with his/her employer for a period longer than four months and who works for at least four days a week for that employer must be granted three days paid family responsibility leave during each annual leave cycle. An annual leave cycle means the period of 12 months employment with the same employer immediately following an employee’s commencement of employment or the completion of that employee’s prior leave cycle.

An employee is entitled to take the family responsibility leave when the employee’s child is born, when the employee’s child is sick, in the event of the death of the employee’s spouse, life partner, parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.

Section 27(7) allows for collective agreements entered into between employers and employees (usually represented by a trade union) to vary the number of days and the circumstances under which family responsibility leave is to be granted.

The BCEA requires an employer to pay an employee the wage the employee would ordinarily receive. An employer may require an employee to provide it with proof of the event that required the family responsibility leave.  This requirement should be incorporated in the contract of employment, alternatively into a policy dealing with family responsibility leave.

At present, the legislature is planning to amend the BCEA and in particular section 27 sealing with family responsibility leave to increase an employee’s entitlement from three days to 10 days leave. The amendment bill has not yet been signed by the President and as such, the status quo of three days’ entitlement remains.

This article was written by Phathutshedzo Rambau, Candidate Attorney, Norton Rose Fulbright South Africa Inc

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