There seems to be a global trend moving towards the introduction of a shared parental leave policy which allows fathers time off with their partners after the birth of their child. Although the legal system of South Africa is one of the most developed in the world, we have no specific provision made for Paternity Leave and fathers have to take Family Responsibility Leave instead.
Family Responsibility leave entitles an employee to take 3 days paid leave, during each annual cycle when;
- An employee’s child is born.
- An employee’s child is sick.
- In event of the death of the employee’s spouse or life partner; parent; adoptive parent; grandparent; child; adopted child; grandchild or sibling.
An employee’s unused Family Responsibility leave lapses at the end of the annual leave cycle in which it accrues.
Some employers offer different Family Responsibility Leave benefits, for example, one of SA’s biggest retailers has one of the most extensive parental leave policies in South Africa. Both mothers and fathers are granted more maternity/paternity leave benefits than the law prescribes. Mothers are entitled to 11 months maternity leave, 9 of which are paid in full, and fathers receive 8 days paid paternity leave.
In some other countries like Sweden for example, parents are granted up to 10 months of ‘shared leave’, where a couple can decide for themselves who takes the time off. Paternity leave can allow women to have more time available for paid work and therefore can be a major step towards improving women’s career opportunities.
An interesting judgement in this regard was handed down by the Durban Labour Court on 26 March 2015 in the case of Mia v State Information Technology Agency (Pty) Ltd (2015), which considered whether the State had unfairly discriminated against a male employee who had applied for maternity leave. The male employee had entered into a civil union with a same-sex partner and were expecting a baby via a surrogate. The employee applied to his employer for maternity leave and was initially refused it on the grounds that the employer’s policy and the BCEA covered females only. When the matter came before the Labour Court, the employer denied that its policy was discriminatory and the word ‘maternity’ defined the character of the leave entitlement and was a right enjoyed by female employees only.
Considering the matter, the Court found that the right to maternity leave is not solely linked to the welfare and health of the child’s mother, but must out of necessity be interpreted to take into account the best interests of the child. The court stated that legislation such as the BCEA needs to be amended to deal with such matters, as the legislation proceeds from the basis that only females are entitled to maternity leave.
In judgement, it was found that the employer had unfairly discriminated against the employee by refusing to grant him paid maternity leave. The court went on to state that an employer, when applying their policies regarding maternity, must recognise the status of parties to civil unions and must not discriminate against the rights of surrogate parents.
This judgment paves the way for employees in same-sex unions to request maternity leave when they become parents and this would by implication arguably also include an adoptive parent of a recently conceived child or a male parent whose partner dies during child birth.
ABOUT THE AUTHOR
Stacy Lee Oberem obtained her LLB Law degree from the Nelson Mandela Metropolitan University in 2015. She joined SEESA Labour as a legal advisor in October 2015.