Although this is a sensitive topic, it is one that occurs regularly and is often handled wrong because of the ignorance of the law. The relevant law here is the Basic Conditions of Employment Act (BCEA). This Act, read together with the Constitution of South Africa, protects the rights of pregnant woman in the workplace.
Section 25 of the BCEA stipulates that an employee is entitled to 4 consecutive months’ maternity leave. An employee may go on maternity leave at any time within 4 weeks before the expected date of birth, or on a date specified by a medical practitioner or midwife as essential to the health of the employee and unborn baby. No employee may work for 6 weeks after the birth of their child, with the exception of when a medical practitioner or midwife certifies that the employee is fit to return to work.
An employee must give notice of their intention to go on maternity leave in writing, at least 4 weeks prior to the start of maternity leave or whenever it is reasonably possible to do so. In this notice the employee must indicate when they intend to go on maternity leave and when they will be returning to work.
In the event of a stillbirth or miscarriage
The Section further stipulates that should an employee miscarry or give birth to a stillborn baby, she is entitled to 6 weeks maternity leave. The maternity leave starts on the day of the miscarriage or stillbirth. The employer may therefore not deduct the period before the miscarriage or stillbirth during which the mother was on maternity leave from her annual leave.
Any maternity leave taken before the stillbirth or miscarriage is still regarded as maternity leave and is additional to the 6 weeks after the stillbirth or miscarriage.
The distinction may appear unimportant – however, it is important that an employer should classify this leave as maternity leave and not as sick leave. The employee’s sick leave, which runs over a period of 3 years, is not affected by this.
ABOUT THE AUTHOR
Stacy Lee Oberem obtained her LLB degree from Nelson Mandela Metropolitan University in 2015. She has been with SEESA Labour since 2015 and has joined SEESA BEE in 2017.