Several countries offer time off for employees following the birth of a child, regardless of gender or sex; however, a new case has brought the legislation regarding parental leave in South Africa into question.
Gillian Lumb and Alex van Greuning, employment experts from Cliffe Dekker Hofmeyr, noted that on 1 January 2020, the Labour Laws Amendment Act of 2018 amended the Basic Conditions of Employment Act (BCEA) to introduce parental leave, adoption leave and commissioning parental leave.
In a recent case filed at the High Court, Werner and Ika van Wyk argue that sections within the BCEA, namely 25 and 26, should be declared unconstitutional as they unfairly discriminate against fathers of newborn children – by unjustifiably limiting their rights to paternity leave in South Africa.
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Werner van Wyk applied to his employer for four months of leave to care for his newborn child after his wife returned to operating her two businesses following the birth of their child. The request was declined, said Cliffe Dekker Hofmeyr.
Van Wyk filed the following constitutional issues:
- The sections are unconstitutional insofar as they unfairly discriminate against fathers of newborn children by unjustifiably limiting the father’s rights to paternity leave in South Africa.
- The sections ought to be extended to ensure equal rights of all mothers, fathers and same-sex parents of newborn children in South Africa to include, among other things, circumstances where a father is the primary caregiver, allow for extended leave policies, extend the definition of maternity leave to include parental and include the recognition of a new category of leave for pregnant or breastfeeding parents to six weeks.
- Whether the Minister of Employment and Labour is obliged to amend the legislation to encapsulate circumstances where fathers are the primary caregivers to their newborn children and accordingly – to the extent that workplace policies deviate from this standard – they, themselves, will give rise to unconstitutionality.
Extending the definition
Under current laws, an employee is entitled to four months of unpaid maternity leave following the birth of her child. The case now seeks to extend the scope of maternity leave to include parental leave and caregiving leave.
“While maternity leave is not expressly defined in the BCEA, the provisions of section 25 relate to pregnancy and birth, and a pregnant employee’s right to maternity leave.”
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This is not the first time this has been challenged; in 2015, a same-sex couple who entered into a surrogacy agreement and applied for paid maternity leave was denied.
The applicant subsequently challenged their employer on the grounds that the refusal on the basis that he was not the biological mother of the child constituted unfair discrimination on the grounds of gender, sex, family responsibility and sexual orientation, said Cliffe Dekker Hofmeyr.
The Labour Court adopted a purposive interpretation of maternity leave and found that the right to maternity leave is not linked solely to the welfare of the child’s mother but also to the best interests of the child, therefore does not rule in the best interests of the child would ignore the principles enshrined in the Constitution as well as the Children’s Act.
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“The Labour Court concluded that in order to properly deal with matters such as this, it is necessary to amend the BCEA.”
Having considered these issues and the developments in our law, the Labour Court declared that the manner in which the employer’s maternity leave policy had been applied was unfairly discriminatory, directed the employer not to discriminate against surrogate parents when applying the policy in future, and to pay the applicant the equivalent of two months’ salary (in addition to the two months paid to leave the employer had granted him), said Cliffe Dekker Hofmeyr.
A similar stance may be used to interpret the case on hand; Van Wyk’s application in the High Court added the legal experts.
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