Four months of parental leave, split between both parents, has been largely welcomed, following a landmark judgment in Johannesburg High Court last week which found sections of the Basic Conditions of Employment Act were unconstitutional and invalid.
Four months of parental leave, split between both parents, has been largely welcomed, following a landmark judgment in Johannesburg High Court last week which found sections of the Basic Conditions of Employment Act were unconstitutional and invalid.
According to the interim ruling, an employee who is a single parent is entitled to at least four consecutive months of parental leave, and employees who are a pair of parents are collectively entitled to the same amount of leave, which they can take following their election. The parents can choose to take the whole period by one parent or take turns taking the leave.
Both employers must be notified before the date of birth in writing of the election and if a shared arrangement is chosen, the period or periods to be taken by each parent must be specified.
The applicants included a father who wanted to take leave after the birth of his child, a mother who wanted to share leave with her partner, a surrogate mother who wanted to take leave after handing over the child to the commissioning parents, and an adoptive parent who wanted to take leave after adopting a child.
Law firm Cliffe Dekker Hofmeyer said: “The application was launched by Werner van Wyk and his spouse, Ika van Wyk. During Mrs van Wyk’s pregnancy, Mr van Wyk applied to his employer for the four-month maternity leave benefit. The employer refused on the basis that its maternity leave policy did not provide for persons other than the birthing mother to receive the maternity leave benefit.
“The reason that Mr van Wyk applied for the maternity leave benefit was that his spouse was attending to the management of her two businesses and as a result, she was not able to take a four-month leave period to provide the necessary nurturing for a newborn baby without unpredictable and potentially serious consequences for her businesses.
“Given his employer’s refusal of his application for the four-month maternity leave benefit, Mr van Wyk negotiated an unpaid sabbatical period with his employer.
“Mr van Wyk was not able to claim maternity benefits from the Unemployment Insurance Fund.
“The Van Wyks’ scenario exposed the need, for which many have advocated, for the reform of labour law to reflect a gender-egalitarian approach to parental leave benefits.”
Litigant in the matter, Sonke Gender Justice, welcomed the landmark judgment, as a new era of a more inclusive and equitable society “recognising the diversity of modern family structures”.
Co-executive director of Sonke Gender Justice and Co-Chairperson of Global MenEngage Alliance, Bafana Khumalo, said: “We welcome this landmark judgement which is contributing to growing our jurisprudence in the quest for shared care work in families.
“This is groundbreaking and will go a long way in influencing a positive attitude towards shared care work.”
Legal director of Strata-g, advocate Tertius Wessels, added: “The judgment has been welcomed by various civil society groups and legal experts, who hailed it as a landmark victory for parental rights and gender equality.”
Cape Times