The maternity leave options contemplated in terms
of the Basic Conditions of Employment Act, 1997 ("the BCEA") provide
that:
·
A mother has the right to four months of unpaid
maternity leave in terms of the BCEA.
·
This does not apply to male employees, who, at law,
may take three days leave in terms of their family responsibility leave. Any
other leave must be part of their annual leave.
In the case of M I A v State Information
Technology Agency (Pty) Ltd [2015] JOL 33060 (LC) a married male
same-sex couple had a baby with the assistance of a surrogate mother in terms
of a surrogacy agreement as envisioned in the Children's Act (No. 38 of
2005). Following the birth, the child was the entire responsibility of
the couple.
One of the dads applied for "maternity
leave", but was turned down because the company’s maternity policy applied
only to females.
The judge hearing the dispute ruled that:
· The judge hearing the dispute ruled that:
·
The wellbeing of the new born infant necessarily
requires a devoted and full time care giver, particularly in the first months
of life.
·
The best interests of the child were paramount, as
is required by both the Children's Act and the Constitution of South
Africa.
·
The employee, as the parent of the child, should be
allowed to play that role, even if he had not physically given birth to the
infant.
·
There was was no reason why the employee was not
entitled to the benefit of four months of unpaid maternity leave.
Review your maternity leave policies.
