Skills-Universe

I had an employee ask me the following question
"If an employee goes off on unpaid maternity leave and there are a lot of public holidays in her maternity leave, does the employer pay for the public holidays or because the maternity leave is unpaid, those days are unpaid as well?"
What would the verdict be?
Kiki

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Basic Conditions of Employment Act s18 Public Holidays (2) "If a public holiday falls on a day on which an employee would ordinarily work, an employer must pay" at least the wage the person would have earned. The woman is on maternity leave, her service has not terminated with the employer, therefore the public holidays should be paid if they fall on days that she would normally have worked, eg between Mon and Fri if she works Mon to Fri.
If she were on annual or sick leave they would have been paid as Public Holidays and noted counted into the annual or sick days. Therefore, the same should apply to maternity leave.
Although factually correct (referring to previous response), if I am not mistaken, Kiki advised that the employee is on unpaid maternity leave and thus it would mean that should there be public holidays during the maternity leave period, these would still be UNPAID!! It is the same if an employee is on unpaid leave - should there be a public holiday in the period that an employee is on unpaid leave, that would still be unpaid. Yes, if it was normal paid leave and there is a public holiday in this period, then the employee will get paid for this day. One also has to look at the policy of the employer. If the employer states that the maternity leave is four months (and unpaid), then it is exactly that. If the policy states that the employee is entitled to for instance 87 days maternity leave and there happens to be public holidays in between, then the employee will be able to be off for 87 days plus whatever days were public holidays. However, if it was unpaid, then it is unpaid leave. If the leave is paid, the the days (including the public holidays) would be paid. Hope this clarifies the position. Regards
sylvia hammond said:
Basic Conditions of Employment Act s18 Public Holidays (2) "If a public holiday falls on a day on which an employee would ordinarily work, an employer must pay" at least the wage the person would have earned. The woman is on maternity leave, her service has not terminated with the employer, therefore the public holidays should be paid if they fall on days that she would normally have worked, eg between Mon and Fri if she works Mon to Fri.
If she were on annual or sick leave they would have been paid as Public Holidays and noted counted into the annual or sick days. Therefore, the same should apply to maternity leave.
Heidi Thompson said:
Although factually correct (referring to previous response), if I am not mistaken, Kiki advised that the employee is on unpaid maternity leave and thus it would mean that should there be public holidays during the maternity leave period, these would still be UNPAID!! It is the same if an employee is on unpaid leave - should there be a public holiday in the period that an employee is on unpaid leave, that would still be unpaid. Yes, if it was normal paid leave and there is a public holiday in this period, then the employee will get paid for this day. One also has to look at the policy of the employer. If the employer states that the maternity leave is four months (and unpaid), then it is exactly that. If the policy states that the employee is entitled to for instance 87 days maternity leave and there happens to be public holidays in between, then the employee will be able to be off for 87 days plus whatever days were public holidays. However, if it was unpaid, then it is unpaid leave. If the leave is paid, the the days (including the public holidays) would be paid. Hope this clarifies the position. Regards
sylvia hammond said:
Basic Conditions of Employment Act s18 Public Holidays (2) "If a public holiday falls on a day on which an employee would ordinarily work, an employer must pay" at least the wage the person would have earned. The woman is on maternity leave, her service has not terminated with the employer, therefore the public holidays should be paid if they fall on days that she would normally have worked, eg between Mon and Fri if she works Mon to Fri.
If she were on annual or sick leave they would have been paid as Public Holidays and noted counted into the annual or sick days. Therefore, the same should apply to maternity leave.
Thanks, that is what I thought and told the employee.

Kiki Coppin said:
Heidi Thompson said:
Although factually correct (referring to previous response), if I am not mistaken, Kiki advised that the employee is on unpaid maternity leave and thus it would mean that should there be public holidays during the maternity leave period, these would still be UNPAID!! It is the same if an employee is on unpaid leave - should there be a public holiday in the period that an employee is on unpaid leave, that would still be unpaid. Yes, if it was normal paid leave and there is a public holiday in this period, then the employee will get paid for this day. One also has to look at the policy of the employer. If the employer states that the maternity leave is four months (and unpaid), then it is exactly that. If the policy states that the employee is entitled to for instance 87 days maternity leave and there happens to be public holidays in between, then the employee will be able to be off for 87 days plus whatever days were public holidays. However, if it was unpaid, then it is unpaid leave. If the leave is paid, the the days (including the public holidays) would be paid. Hope this clarifies the position. Regards
sylvia hammond said:
Basic Conditions of Employment Act s18 Public Holidays (2) "If a public holiday falls on a day on which an employee would ordinarily work, an employer must pay" at least the wage the person would have earned. The woman is on maternity leave, her service has not terminated with the employer, therefore the public holidays should be paid if they fall on days that she would normally have worked, eg between Mon and Fri if she works Mon to Fri.
If she were on annual or sick leave they would have been paid as Public Holidays and noted counted into the annual or sick days. Therefore, the same should apply to maternity leave.
Hi Heidi
I don't believe that the employer's policy is of much relevance. You can't contract out of the BCEA. The BCEA provides a floor of rights which can't be denied no matter what the employment contract or any company policy says.

Employees have to be paid for Public Holidays. The company can't decide to ignore the law just because they have a policy that says something different.

I would imagine the employers argument would be that the normal rate of pay for the day would be R0. So we will pay you R0 for the day.

The other relevant point is whether employees on maternity leave should accrue annual leave entitlement while on maternity leave. The answer is yes, but I think many employers don't do this.

I'll try to find any relevant cases and post them up if they exist.
Regards
Alan
BCEA Section 18 (2)(a) states "... an employer must pay - (a) an employee who does not work on the public holiday, at least the wage that the employee would ordinarily have received for work on that day;" So if she is on unpaid maternity leave, ordinarily she would have received nothing for that day.

Regarding accrual of annual leave during maternity leave - according to section 20 (2)(b), and as per my employee's contract, an employer must grant "... one day of annual leave on full remuneration for every 17 days on which the employee worked or was entitled to be paid;". During unpaid maternity leave, she didn't work & wasn't entitled to be paid - therefore, and as also advised by one of the Labour Bulletin lawyers last December, she does not accumulate annual leave during unpiad maternity leave. As a small business employing 4 people, maternity leave necessitated employing a replacement during that period - that person was entitled to leave accumulated during the period of temporary employment, so it is simply not possible for a small business to pay 2 people the benefits of one job!

Alan Hammond said:
Hi Heidi
I don't believe that the employer's policy is of much relevance. You can't contract out of the BCEA. The BCEA provides a floor of rights which can't be denied no matter what the employment contract or any company policy says.

Employees have to be paid for Public Holidays. The company can't decide to ignore the law just because they have a policy that says something different.

I would imagine the employers argument would be that the normal rate of pay for the day would be R0. So we will pay you R0 for the day.

The other relevant point is whether employees on maternity leave should accrue annual leave entitlement while on maternity leave. The answer is yes, but I think many employers don't do this.

I'll try to find any relevant cases and post them up if they exist.
Regards
Alan
I believe that the confusion arises because employers confuse the different clauses - Maternity leave is a separate clause from Public Holidays. These are two entirely different entitlements.
If a small employer has a cash flow problem, that is an entirely different issue and doesn't change the entitlement.
The employer could then consult with the employee on how the entitlement is to be handled. There is an opportunity to swap days in the Public Holidays clause - a common practice. Why not consider adding an extra day to the Maternity leave rather than paying the day?
Mike Barker said:
BCEA Section 18 (2)(a) states "... an employer must pay - (a) an employee who does not work on the public holiday, at least the wage that the employee would ordinarily have received for work on that day;" So if she is on unpaid maternity leave, ordinarily she would have received nothing for that day.

Regarding accrual of annual leave during maternity leave - according to section 20 (2)(b), and as per my employee's contract, an employer must grant "... one day of annual leave on full remuneration for every 17 days on which the employee worked or was entitled to be paid;". During unpaid maternity leave, she didn't work & wasn't entitled to be paid - therefore, and as also advised by one of the Labour Bulletin lawyers last December, she does not accumulate annual leave during unpiad maternity leave. As a small business employing 4 people, maternity leave necessitated employing a replacement during that period - that person was entitled to leave accumulated during the period of temporary employment, so it is simply not possible for a small business to pay 2 people the benefits of one job!

Alan Hammond said:
Hi Heidi
I don't believe that the employer's policy is of much relevance. You can't contract out of the BCEA. The BCEA provides a floor of rights which can't be denied no matter what the employment contract or any company policy says.

Employees have to be paid for Public Holidays. The company can't decide to ignore the law just because they have a policy that says something different.

I would imagine the employers argument would be that the normal rate of pay for the day would be R0. So we will pay you R0 for the day.

The other relevant point is whether employees on maternity leave should accrue annual leave entitlement while on maternity leave. The answer is yes, but I think many employers don't do this.

I'll try to find any relevant cases and post them up if they exist.
Regards
Alan
What would be the thinking of the experts on the thought: Would the lady get service recognition for the maternity period??? This would impact on the days leave to... Then also was the lady a 5 day or a 6 day worker...there is a different way of calculation of the leave days!!!!
Hi Heidi,
I've read your response but still don't see why the PH should be unpaid as they weren't required to work on that day whatever else they doing is then nor relevant - the other days may be unpaid but I don't see that they affect the PH - I'll see if I can get a legal opinion for us.
Kiki,

I realize this is almost a year ago but I read your question as well as all the replies. May I ask how you handled the matter then or even now? I am facing the same question. I have 6 ladies pregant all going on Maternity Leave during the next 2 months with the 4 Public Holidays facing us, wanting an answer on this question.

Regards.
Hi Jean Pierre,

Thank you for your email.

What I did was I increased their maternity time off with the days that were public holidays, and they were quite happy to spend more time with the baby. The days remained unpaid.

Regards
Kiki

Jean Pierre Rossouw said:
Kiki,

I realize this is almost a year ago but I read your question as well as all the replies. May I ask how you handled the matter then or even now? I am facing the same question. I have 6 ladies pregant all going on Maternity Leave during the next 2 months with the 4 Public Holidays facing us, wanting an answer on this question.

Regards.

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