Anticipating the birth of a baby is an exciting time for soon-to-be parents, but it can be stressful for couples as they negotiate companies’ leave policies and a possible reduction of income.
Jennifer Da Mata, managing director of Strata-G Labour Solutions, says employees need to familiarise themselves with their employers’ policies to ensure they understand what their rights are. “According to South Africa’s Basic Conditions of Employment Act (BCEA), female employees have the right to four consecutive months’ unpaid maternity leave.
“An employee may commence maternity leave any time from four weeks prior to the expected date of birth, or on a date determined by a medical practitioner or midwife as necessary for the protection of the employee or unborn baby's health.
“The balance of leave needs to be taken after the baby is born, bearing in mind that no employee may work for six weeks after the birth of the baby, unless a medical practitioner or midwife certifies the employee is fit to resume her duties,” adds Da Mata.
There is no provision in South Africa’s legislation that stipulates when employees need to inform employers that they are pregnant. Employees must, however, notify their employers in writing on when they intend to commence maternity leave and when they expect to return to work.
Da Mata notes that some companies offer paid maternity leave, but this is at their own discretion. “Companies may offer employees full pay or a portion of their salary, as they see fit, but they are not legally obliged to do so. Employees who are not remunerated while on maternity leave are entitled to claim maternity benefits through the Department of Labour.”
And what about paternity leave?
According to Da Mata, employees are not entitled to paternity leave in terms of the BCEA, although one of the major amendments proposed to this Act includes making provision for paternity leave. “It is proposed that 10 consecutive days’ paternity leave be granted to a father following the birth of a child.
“Some companies have already adopted paternity leave as part of their human resource policies. We urge companies that haven’t done so yet, to keep the proposed amendments in mind when reviewing their internal company policies,” he says.
Currently, fathers are entitled to three days paid family responsibility leave during each annual leave cycle for the birth of a child. However, it is likely that this leave entitlement will be replaced by the proposed paternity leave amendments. “While the 10 days leave is great news for fathers, it will take a huge chunk out of their salary if paternity leave is ultimately promulgated as unpaid leave,” says Da Mata.
As a matter of precaution employees need to ensure that their employers have registered them for Unemployment Insurance benefits. This will allow them to receive some benefit while on maternity or paternity leave. “Sections 34 and 37 of the Unemployment Insurance Act, 1966 (Act 30 of 1966), provide for the payment of maternity leave and legislative amendments will be proposed to Cabinet to improve these benefits,” explains Da Mata.
It is important for employers to note that in terms of section 187 (1) (e) of the Labour Relations Act, 1995, the dismissal of an employee on account of her pregnancy, intended pregnancy, or any reason related to her pregnancy, is automatically unfair. The definition of dismissal in section 186 of the Labour Relations Act, 1995, includes the refusal to allow an employee to resume work after she has taken maternity leave in terms of any law, collective agreement or her contract.
Da Mata says employers cannot unfairly discriminate against employees based on their pregnancy status. “If someone is dismissed for being pregnant, the dismissal may be held to be automatically unfair and the employee will be able to claim reinstatement or up to 24 months’ compensation in the labour court.
“Our advice to clients is to adhere to South Africa’s Labour legislation, be clear on their policies about maternity and paternity leave and consider the benefits of being on the right side of the law. This will ultimately cultivate a happy and productive workforce,” concludes Da Mata.