1 00:00:00,080 --> 00:00:02,440 Speaker 1: Let's dive straight into Legal Talk, and we're back in 2 00:00:02,440 --> 00:00:04,600 Speaker 1: the space of labor law today as we try and 3 00:00:04,640 --> 00:00:08,640 Speaker 1: answer a listener's question around family responsibility leave. Delighted to 4 00:00:08,640 --> 00:00:10,760 Speaker 1: welcome back as our guest Andrew Levy, who is a 5 00:00:10,840 --> 00:00:13,360 Speaker 1: leading labor law specialist and the author of the book 6 00:00:13,440 --> 00:00:16,440 Speaker 1: Labor Law in Practice, which is an incredibly helpful guide 7 00:00:16,520 --> 00:00:20,640 Speaker 1: for employers and employees. I'll add Andrew, it's wonderful to 8 00:00:20,680 --> 00:00:22,799 Speaker 1: have you on the show again after quite a long absence. 9 00:00:22,840 --> 00:00:23,840 Speaker 1: Welcome back to Cape Talk. 10 00:00:24,600 --> 00:00:26,639 Speaker 2: Thank you very much. Indeed, it's a pleasure to be 11 00:00:26,760 --> 00:00:27,000 Speaker 2: with you. 12 00:00:27,280 --> 00:00:27,639 Speaker 1: Thank you. 13 00:00:28,040 --> 00:00:28,280 Speaker 2: Now. 14 00:00:28,480 --> 00:00:31,160 Speaker 1: The listener in question had a particular query around family 15 00:00:31,160 --> 00:00:33,280 Speaker 1: responsibility leave, which I'll put to Andrew. But I just 16 00:00:33,320 --> 00:00:35,240 Speaker 1: want to say to everybody else listening, if you want 17 00:00:35,240 --> 00:00:38,640 Speaker 1: to ask something specifically related to this kind of leave, 18 00:00:38,960 --> 00:00:40,800 Speaker 1: you are welcome to do so with the WhatsApp to 19 00:00:41,120 --> 00:00:44,199 Speaker 1: seven two five six seven one five sixty seven. We're 20 00:00:44,200 --> 00:00:47,120 Speaker 1: going to keep it very tightly focused just on family 21 00:00:47,159 --> 00:00:50,760 Speaker 1: responsibility leave, so please just keep that in mind. Andrew. 22 00:00:50,760 --> 00:00:53,000 Speaker 1: The listener wrote in with a bit of a conundrum, 23 00:00:53,320 --> 00:00:55,440 Speaker 1: and they said to us they don't want to be 24 00:00:55,560 --> 00:00:58,480 Speaker 1: identified because they're worried that their boss might hear the segment. 25 00:00:59,160 --> 00:01:02,200 Speaker 1: But what they wrote is the following. My grandfather recently 26 00:01:02,240 --> 00:01:05,319 Speaker 1: passed away and I applied for family responsibility leave to 27 00:01:05,440 --> 00:01:07,600 Speaker 1: allow me to attend the funeral, which was being held 28 00:01:07,640 --> 00:01:11,160 Speaker 1: in another city. To my surprise, it was refused. HR 29 00:01:11,240 --> 00:01:14,120 Speaker 1: made me take those two days as annual leave because 30 00:01:14,120 --> 00:01:16,959 Speaker 1: they said a grandparent did not fall under the definition 31 00:01:17,040 --> 00:01:20,440 Speaker 1: of family responsibility leave. I went and checked our company's 32 00:01:20,520 --> 00:01:24,400 Speaker 1: leave policy and it does indeed specify that family responsibility 33 00:01:24,480 --> 00:01:28,039 Speaker 1: law applies to parents, siblings, or children. There is no 34 00:01:28,080 --> 00:01:31,520 Speaker 1: reference to grandparents. But the question is is that compliant 35 00:01:31,520 --> 00:01:33,760 Speaker 1: with the Basic Conditions of Employment Act or do I 36 00:01:33,800 --> 00:01:35,000 Speaker 1: have grounds to push back? 37 00:01:35,959 --> 00:01:39,320 Speaker 2: Well, the answer is a simple and resounding it is 38 00:01:39,440 --> 00:01:46,040 Speaker 2: not compliant. Ah. No. Absolutely, The BCEA basic condition and 39 00:01:46,120 --> 00:01:52,920 Speaker 2: parmula states specifically that family responsibility leave applies in the 40 00:01:52,960 --> 00:01:59,400 Speaker 2: case of a parent, a doctored parent, grandparent, child, adopted child, grandchild, 41 00:01:59,480 --> 00:02:05,440 Speaker 2: or siblings. Point here is that an employer cannot overrule 42 00:02:06,160 --> 00:02:09,760 Speaker 2: anything in the BCEA by way of their own contract. 43 00:02:10,440 --> 00:02:14,200 Speaker 2: So whatever you say that's our policy, it's in your contract, 44 00:02:14,280 --> 00:02:18,360 Speaker 2: it's invalid because you cannot contract outside of the law. 45 00:02:18,919 --> 00:02:23,840 Speaker 2: So this employee was cheated. They certainly have not one 46 00:02:23,919 --> 00:02:26,480 Speaker 2: leg to stand on. They've got two legs to stand on. 47 00:02:26,760 --> 00:02:29,760 Speaker 2: The question always says, well, what does she do about it? 48 00:02:30,320 --> 00:02:32,600 Speaker 2: Because one thing, they have a right it works, it's 49 00:02:32,639 --> 00:02:37,919 Speaker 2: another thing to enforce it and expect life to be pleasant. 50 00:02:38,360 --> 00:02:44,120 Speaker 2: My recommendation would be to yeah, very politely, but in writing, 51 00:02:44,320 --> 00:02:46,640 Speaker 2: just send a note to the employer saying, look for 52 00:02:46,680 --> 00:02:52,919 Speaker 2: your information. I attach an extraction from the BCEA. Here 53 00:02:52,960 --> 00:02:57,160 Speaker 2: it is. Please have a look at it and reconsider 54 00:02:57,280 --> 00:03:02,160 Speaker 2: my position, and I ask you to were excuse me, 55 00:03:02,240 --> 00:03:06,840 Speaker 2: credit the family response, credit to annual leave, and debit 56 00:03:06,919 --> 00:03:12,560 Speaker 2: family responsibility leave. The employee doesn't play ball, then imported 57 00:03:12,800 --> 00:03:16,680 Speaker 2: fact to her next step stop could well be a 58 00:03:16,800 --> 00:03:20,960 Speaker 2: labor inspector from the Department of Labor, and if she 59 00:03:21,280 --> 00:03:24,840 Speaker 2: wanted to keep her on, assuming so, she if she 60 00:03:24,880 --> 00:03:27,480 Speaker 2: wanted to keep her name out of it, I'm sure 61 00:03:27,480 --> 00:03:32,080 Speaker 2: they would oblige. But equally, there is legal protection for 62 00:03:32,320 --> 00:03:36,520 Speaker 2: any employee being victimized after they've made a complaint. So 63 00:03:36,520 --> 00:03:40,240 Speaker 2: the short answer to this one is the employer has 64 00:03:40,280 --> 00:03:44,640 Speaker 2: not handled this way the law requires. 65 00:03:44,880 --> 00:03:47,720 Speaker 1: I'm so glad this person senters this evil and raise 66 00:03:47,840 --> 00:03:52,000 Speaker 1: this issue. So it's absolutely clear there that the BCEA 67 00:03:52,320 --> 00:03:55,680 Speaker 1: is the what counts here and you cannot contract outside 68 00:03:55,680 --> 00:03:59,720 Speaker 1: of that, even if you signed a contract that said otherwise. Okay, 69 00:04:00,040 --> 00:04:01,000 Speaker 1: So that's crystal clear. 70 00:04:01,480 --> 00:04:05,400 Speaker 2: Otherwise, you know, one could simply say, look, I've got 71 00:04:05,400 --> 00:04:08,200 Speaker 2: to signed agreement with my wife that I can kill her. 72 00:04:10,200 --> 00:04:13,480 Speaker 2: Heaven forbid, I would never do that after fifty six years, 73 00:04:14,640 --> 00:04:17,679 Speaker 2: the first fifty six years of the hardest. But anyway, 74 00:04:18,760 --> 00:04:20,800 Speaker 2: and you know, never mind the law. We both agreed, 75 00:04:20,920 --> 00:04:24,279 Speaker 2: we sign a contract. No, you cannot contract out of 76 00:04:24,279 --> 00:04:24,640 Speaker 2: the law. 77 00:04:24,960 --> 00:04:27,159 Speaker 1: Okay. So to the person who sent that email, good 78 00:04:27,240 --> 00:04:29,720 Speaker 1: luck and Andrew's they're giving you the steps that are 79 00:04:29,760 --> 00:04:32,840 Speaker 1: available to you to please do push back, and as 80 00:04:32,839 --> 00:04:34,440 Speaker 1: he said, you know, there's a way to do that 81 00:04:34,480 --> 00:04:37,640 Speaker 1: politely and without sort of trying to escalate conflict, to 82 00:04:37,680 --> 00:04:40,000 Speaker 1: just point out to them that that what they've applied 83 00:04:40,080 --> 00:04:43,760 Speaker 1: does not match up with what the law requires of 84 00:04:43,839 --> 00:04:45,800 Speaker 1: them and ask them to correct it. And let's hope 85 00:04:45,839 --> 00:04:49,520 Speaker 1: that they do the right thing and correct the leaf 86 00:04:49,560 --> 00:04:54,160 Speaker 1: balances accordingly. While we talking about I mean, you've listed 87 00:04:54,160 --> 00:04:57,440 Speaker 1: there it's parent, grandparent, child's sibling as well as the 88 00:04:57,440 --> 00:05:02,120 Speaker 1: adoptive variations thereof Andrew. This is a country where a 89 00:05:02,120 --> 00:05:04,840 Speaker 1: lot of people have large extended families, and where in 90 00:05:04,880 --> 00:05:08,080 Speaker 1: some families the extended family may be as close to 91 00:05:08,279 --> 00:05:10,560 Speaker 1: one as a sibling. You know, you might look as 92 00:05:10,600 --> 00:05:14,479 Speaker 1: at a cousin almost in the same view as a sibling. 93 00:05:15,240 --> 00:05:19,480 Speaker 1: But the law would require that only those four categories 94 00:05:19,520 --> 00:05:22,680 Speaker 1: should be recognized by family responsibility. Or if a company 95 00:05:22,839 --> 00:05:25,359 Speaker 1: choose us to be a little bit more generous and 96 00:05:25,400 --> 00:05:28,720 Speaker 1: state in its own policies that we recognize that fact 97 00:05:28,720 --> 00:05:32,159 Speaker 1: that culturally some families are larger and more diverse, is 98 00:05:32,160 --> 00:05:33,920 Speaker 1: that okay if they if they choose to be more 99 00:05:33,960 --> 00:05:35,960 Speaker 1: generous than what the act requires. 100 00:05:35,560 --> 00:05:40,680 Speaker 2: It's absolutely fine. You see, the BCEA works as a flaw. 101 00:05:41,920 --> 00:05:48,599 Speaker 2: You cannot provide for less than the BCEA requires, but 102 00:05:48,760 --> 00:05:52,960 Speaker 2: you can always do more. So certainly, you know, there's nothing, 103 00:05:53,000 --> 00:05:58,280 Speaker 2: for example, in the BCEA that deals directly with an 104 00:05:58,320 --> 00:06:03,440 Speaker 2: employee who wants to go on leave because for argument's sake, 105 00:06:03,960 --> 00:06:07,160 Speaker 2: they have a need to go to an initiation ceremony. 106 00:06:07,240 --> 00:06:11,080 Speaker 2: Wish may take a long time, etcetera, etcetera. But you 107 00:06:11,120 --> 00:06:16,120 Speaker 2: know a reasonable employer would understand that and would probably try. 108 00:06:16,160 --> 00:06:20,400 Speaker 2: Many employers do try to accommodate that, but there's no 109 00:06:20,480 --> 00:06:24,880 Speaker 2: obligation to do so. So the words of the law 110 00:06:24,920 --> 00:06:31,680 Speaker 2: are very strict parent, adoptive parent, grandparent, child, adopted child, grandchild, 111 00:06:31,800 --> 00:06:37,080 Speaker 2: or siblings. So unfortunately uncles, aunts, extended families and so 112 00:06:37,160 --> 00:06:38,279 Speaker 2: on are not covered. 113 00:06:38,440 --> 00:06:41,440 Speaker 1: Okay, Zooks, I'm so glad you asked this question on 114 00:06:41,480 --> 00:06:44,040 Speaker 1: the WhatsApp line because it's one I discovered the answer 115 00:06:44,080 --> 00:06:46,159 Speaker 1: to myself just a week or two ago and was 116 00:06:46,160 --> 00:06:50,320 Speaker 1: not familiar with Zooks is asking or commenting family responsibility 117 00:06:50,400 --> 00:06:53,000 Speaker 1: leave can be taken for a child, but does it 118 00:06:53,040 --> 00:06:55,400 Speaker 1: give the definition of what a child is? Are we 119 00:06:55,520 --> 00:06:59,039 Speaker 1: to assume that it's only offspring under eighteen. I've known 120 00:06:59,040 --> 00:07:02,080 Speaker 1: people to take leave six children, but those children were 121 00:07:02,120 --> 00:07:06,360 Speaker 1: of university age, and Zus is wondering whether that's legal. Andrew, 122 00:07:06,400 --> 00:07:07,359 Speaker 1: would you like to respond? 123 00:07:08,240 --> 00:07:11,640 Speaker 2: It's an interesting one, and you know, the most extreme 124 00:07:12,240 --> 00:07:15,360 Speaker 2: one I came across as a woman who wanted a 125 00:07:15,800 --> 00:07:20,080 Speaker 2: family responsibilityly because her daughter was having an operation. The 126 00:07:20,240 --> 00:07:25,000 Speaker 2: daughter turned out was thirty six. Now, nowhere does it 127 00:07:25,200 --> 00:07:30,160 Speaker 2: say that a child is less than this, that or 128 00:07:30,160 --> 00:07:33,920 Speaker 2: the other in this section, But In other sections of 129 00:07:34,000 --> 00:07:40,920 Speaker 2: the BCEA, particularly those dealing with the employment of children, 130 00:07:41,880 --> 00:07:47,280 Speaker 2: there are various provisions. But based on that one can 131 00:07:47,360 --> 00:07:51,080 Speaker 2: say was a degree of certainty that anything less than 132 00:07:51,160 --> 00:07:55,240 Speaker 2: eighteen is a child. Anything over the age of eighteen 133 00:07:55,800 --> 00:07:59,760 Speaker 2: is no longer a child. But you know, once again, 134 00:08:01,080 --> 00:08:06,840 Speaker 2: a sensible employer would look at the situation and make 135 00:08:06,880 --> 00:08:10,360 Speaker 2: a determination based on the facts before them. You know, 136 00:08:10,400 --> 00:08:15,600 Speaker 2: the only thing that need worry an employer, and this 137 00:08:15,640 --> 00:08:19,800 Speaker 2: would probably be the employer of a large number of employees, 138 00:08:20,160 --> 00:08:24,400 Speaker 2: is someone who clearly is abusing leave and you'll find 139 00:08:24,440 --> 00:08:27,080 Speaker 2: that from a pattern. You will always find a pattern 140 00:08:27,600 --> 00:08:31,400 Speaker 2: of leave abuse, whether it's sickly, this, that or the other. 141 00:08:31,480 --> 00:08:33,880 Speaker 2: So once you see a pattern, you know the alarm 142 00:08:33,960 --> 00:08:37,640 Speaker 2: bell should start ringing. But you know, if the child 143 00:08:37,720 --> 00:08:41,520 Speaker 2: is over eighteen, and you know, say for example, at 144 00:08:41,640 --> 00:08:45,080 Speaker 2: university and that play rugby and they've broken a leg 145 00:08:45,080 --> 00:08:48,120 Speaker 2: and they're in hospital, you know, I think an unreasonable 146 00:08:48,160 --> 00:08:52,800 Speaker 2: employer might read the law as it is. A reasonable 147 00:08:52,840 --> 00:08:57,360 Speaker 2: employer would say, well, you know, you are still the parent. 148 00:08:57,720 --> 00:09:00,640 Speaker 2: You may not be the legal guardian, but the child 149 00:09:00,679 --> 00:09:04,600 Speaker 2: effectively lives at home. They're not a self supporting perambulating 150 00:09:04,760 --> 00:09:09,360 Speaker 2: cost free unit, yet why not take it? The large 151 00:09:09,400 --> 00:09:12,880 Speaker 2: employer might also say, look, I've got twenty thousand employees. 152 00:09:12,920 --> 00:09:17,000 Speaker 2: I can't make exceptions. But as always, you know, I 153 00:09:17,040 --> 00:09:20,920 Speaker 2: think the first step is always to ask nicely, be polite. 154 00:09:21,400 --> 00:09:23,520 Speaker 1: Okay, thank you for that, and Zoos, I'm so glad 155 00:09:23,559 --> 00:09:27,200 Speaker 1: you asked the question. Several people asking about the number 156 00:09:27,240 --> 00:09:31,280 Speaker 1: of days allocated by the BCEA for family responsibility leave 157 00:09:31,520 --> 00:09:34,120 Speaker 1: you said it's the bare minimum, is there? Can you 158 00:09:34,120 --> 00:09:36,240 Speaker 1: tell us what that bare minimum is? Andrew? And also 159 00:09:36,320 --> 00:09:38,640 Speaker 1: a couple of people asking is there any limit to 160 00:09:38,720 --> 00:09:41,200 Speaker 1: how many days can be taken for family responsibility? 161 00:09:41,520 --> 00:09:45,840 Speaker 2: Yes, there certainly is. The basic rules as follows. Firstly, 162 00:09:46,440 --> 00:09:49,320 Speaker 2: it doesn't apply on first four months of service, so 163 00:09:49,400 --> 00:09:53,800 Speaker 2: if you've joined and you have one of these tragedies 164 00:09:54,240 --> 00:09:57,720 Speaker 2: or birth that's a happy event before the four months 165 00:09:57,760 --> 00:10:01,199 Speaker 2: is up, you're not entitled to it. Thereafter, you are 166 00:10:01,440 --> 00:10:05,760 Speaker 2: entitled to three days a year. The actual words of 167 00:10:05,800 --> 00:10:09,160 Speaker 2: the law are three days in every leave cycle. But 168 00:10:09,240 --> 00:10:12,720 Speaker 2: as the leave cycle runs over a twelve month period, 169 00:10:13,400 --> 00:10:17,360 Speaker 2: then it would be that it may not necessarily be 170 00:10:17,440 --> 00:10:21,080 Speaker 2: a calendar year. You would recommend the year or start 171 00:10:21,120 --> 00:10:25,720 Speaker 2: the three months from the date of employment, but it 172 00:10:25,760 --> 00:10:29,360 Speaker 2: is three days. There's no obligation to pay more. These 173 00:10:29,520 --> 00:10:33,440 Speaker 2: talk that government is looking at making it four days, 174 00:10:33,480 --> 00:10:36,640 Speaker 2: but that hasn't happened yet, so we must wait and see. 175 00:10:37,160 --> 00:10:43,040 Speaker 2: There's also no limit within the three days. So you 176 00:10:43,120 --> 00:10:49,439 Speaker 2: may have a situation where there is a sibling an 177 00:10:49,480 --> 00:10:53,959 Speaker 2: issue there, you take one day off and heaven forbid, 178 00:10:54,760 --> 00:10:58,359 Speaker 2: six months later in the same leave cycle there's a grandparent. 179 00:10:58,480 --> 00:11:02,000 Speaker 2: The employer can't say, well, you've had your family responsibility. No, 180 00:11:02,160 --> 00:11:06,200 Speaker 2: I've still got two days left, so I'm going The 181 00:11:06,280 --> 00:11:10,320 Speaker 2: important point to bear in mind, however, is it doesn't accumulate. 182 00:11:11,280 --> 00:11:15,320 Speaker 2: If you don't have one of these events in that year, 183 00:11:15,920 --> 00:11:19,760 Speaker 2: you don't carry forward a credit of three days. The 184 00:11:19,800 --> 00:11:24,040 Speaker 2: cycle starts a new Be grateful that nothing nasty has happened, 185 00:11:24,480 --> 00:11:27,520 Speaker 2: and you're covered for the next three days in that 186 00:11:27,679 --> 00:11:28,520 Speaker 2: twelve months. 187 00:11:28,679 --> 00:11:31,720 Speaker 1: Okay, fantastic. Thank you for clarifying that. One last thing 188 00:11:31,760 --> 00:11:34,240 Speaker 1: before we must wrap up, Andrew, do you need to 189 00:11:34,360 --> 00:11:37,000 Speaker 1: apply for this in advance? I mean, by its very nature, 190 00:11:37,040 --> 00:11:41,199 Speaker 1: it's designed to help us when surprise and unforeseen events happen, 191 00:11:42,000 --> 00:11:44,520 Speaker 1: and I have heard some people saying it's difficult. You know, 192 00:11:44,559 --> 00:11:46,880 Speaker 1: obviously you want to try and give your employer notice 193 00:11:47,080 --> 00:11:48,880 Speaker 1: of something, but you don't know when you get a 194 00:11:48,880 --> 00:11:50,559 Speaker 1: phone get a phone call from the school to say 195 00:11:50,600 --> 00:11:52,560 Speaker 1: your child is sick, come and fetch them. What does 196 00:11:52,600 --> 00:11:55,040 Speaker 1: the law state about that sort of full warning aspect. 197 00:11:55,600 --> 00:11:59,440 Speaker 2: Yeah, the law doesn't require full warning. But what the 198 00:11:59,480 --> 00:12:03,360 Speaker 2: employee is entitled to do is to ask for quote 199 00:12:03,480 --> 00:12:08,640 Speaker 2: unquote reasonable proof after the event. So you're quite right, 200 00:12:09,080 --> 00:12:11,000 Speaker 2: you're planning to come to work one morning, you get 201 00:12:11,040 --> 00:12:13,160 Speaker 2: a call saying you need to come to the school. 202 00:12:13,280 --> 00:12:16,680 Speaker 2: Your child is unfortunately fallen broken an arm. You couldn't 203 00:12:16,760 --> 00:12:20,439 Speaker 2: foresee it, You couldn't apply in advance, So the employer 204 00:12:20,600 --> 00:12:22,400 Speaker 2: may either take you at your word or say, well, 205 00:12:22,440 --> 00:12:26,720 Speaker 2: I want reasonable proof. So we've got that word reasonable. 206 00:12:26,840 --> 00:12:30,040 Speaker 2: So beloved by lawyers, what would this be. It could 207 00:12:30,040 --> 00:12:33,680 Speaker 2: be a clinic note, It could be adoptor's noted, could 208 00:12:33,760 --> 00:12:37,720 Speaker 2: be a note from A and E saying so and 209 00:12:37,760 --> 00:12:40,720 Speaker 2: so it was attended or was seen to. It could 210 00:12:40,760 --> 00:12:43,160 Speaker 2: even be, in the case of a child being sick, 211 00:12:44,640 --> 00:12:46,880 Speaker 2: a toil slip from the chemist saying you brought some 212 00:12:46,960 --> 00:12:52,080 Speaker 2: cost mixture. So anything that is reasonable. But the key 213 00:12:52,120 --> 00:12:55,600 Speaker 2: point you make, and I think the listeners should bear 214 00:12:55,600 --> 00:12:59,040 Speaker 2: in mind is that you cannot always foresee and the 215 00:12:59,120 --> 00:13:00,480 Speaker 2: law understand. 216 00:13:01,400 --> 00:13:03,760 Speaker 1: Andrew Lee, thank you for helping us understand it with 217 00:13:03,840 --> 00:13:06,880 Speaker 1: such clarity. Always appreciate your input on the show. Andrew 218 00:13:06,920 --> 00:13:09,319 Speaker 1: one of our leading labor law specialists and the author 219 00:13:09,400 --> 00:13:11,640 Speaker 1: of the book Labor Law in Practice.