Same- Sex Couples and Paternity Leave

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.

Sectional title bullies

Have your managing agents or body corporate trustees made unilateral decisions (always affecting your pocket) that you don’t agree with. E.g., they impose unreasonable fines.

Usually the amount involved is too low to justify referring the matter to a lawyer. Generally, you will find that legal fees will exceed the amount of the fine imposed.

Instead, you can ask the Sectional Title Ombudsman to intervene:

1st Floor Building A, 63 Wierda Road East, Wierda Valley, Sandton

T: +27 (010) 593 0533 │F: +27 (010) 590 6154 │ www.csos.org.za

So, I have two bosses?

A worker, placed at a client by a labour broker, has two employers, once he has worked for the client for more than three months.

In a recent Labour court decision, the court in Assign Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others [2015] JOL 33875 (LC), had to decide on the legal effect of the changes effected by sections 37 and 38 of the Labour Relations Amendment Act 6 of 2014 to section 198 and 198A – D of the Labour Relations Act 66 of 1995. The amendment addresses the relationship between a labour broker or Temporary Employment Service (“TES”), the workers it engages and the client with whom they are placed. Pivotal to the amendment is a deeming provision that makes a worker an employee of the client, three months after placement.

The question facing the Court was whether the TES continues to have a relationship with the worker and, if so, whether the relationship would remain as one of employment. The applicant was a TES and the third respondent was a trade union taking an opposing stance on the issue. The applicant contended that once a placement occurs, the client becomes invested with the rights and obligations that, by operation of the Labour Relations Act 66 of 1995, accrue to an employer and, since the TES has in no sense been deprived of its status as employer, the two relationships then operate in parallel.

Held that there appeared to be no reason, in principle or practice, why the TES should be relieved of its statutory rights and obligations towards the worker, because the client had acquired a parallel set of such rights and obligations. The worker, in contracting with the TES, became entitled to the statutory protections that automatically resulted from his engagement. There seemed to be no public policy considerations relating to why he should be expected to sacrifice them because the TES had found a placement with a client, especially since the designation of the client was within the sole discretion of the TES.

Must I  adopt my husband’s surname after we get married?

This is customary but it is not a legal obligation. The wife can continue to use her maiden name or any other surname which she bore before her marriage. A ‘wife’ also includes a woman who has been married according to the rites of the Islamic or any Indian religion or a recognised customary union.

The children, of course, will take the surname of the father.

Must I amend my will after a divorce?

In the aftermath of a divorce, a person often forgets to amend his or her will. A bequest to your divorced spouse in your will, which was made prior to your divorce, will not necessary fall away after divorce.

The Wills Act provides that if you die within three months of the divorce, a bequest to your divorced spouse will be deemed cancelled (except where you expressly provide otherwise). Basically, this provision allows a divorced person a period of three months to amend his/her will, after the trauma of a divorce. Should you fail to amend your will within three months after your divorce, your divorced spouse will benefit as indicated in the will.

So, be warned, if you don’t want your ex to benefit any longer, change your will.