Introduction
Every father will love the day that he can say “I am going on paternity leave as my baby is on the way”. There is a recent judgment of MIA v State Information Technology Agency (PTY) LTD [1] which is a labour Court Decision, which enables some fathers to do just that. This is a progressive judgment as, until recently, such an avenue did not exist.
The current legislation dealing with maternity / paternity leave
The current Basic Conditions of Employment Act (BCEA)[2] states in section 25 that maternity leave is limited to four months for a female employee. There is reference only to a woman by the use of the word ‘her’ and the reference to pregnancy. The section goes on to state that an employee is entitled to four consecutive months leave and that an employee may commence maternity leave at any time from four weeks before the expected date of birth of the child unless otherwise agreed.
There is no reference to a father’s limitative rights with regard to ‘maternity’ leave in the BCEA nor is there an equivalent in any other Act. In the MIA case, the Applicant, in anticipation of the birth of his baby by a surrogate agreement in terms of the Children’s Act 38 of 2005, applied to the Respondent (who was his employer) for paid ‘maternity’ leave from the date of confinement for a period of four months [3]. The Respondent declined to grant such a request as it was stated that maternity leave only applied to females as stated in the BCEA.[4]
The Applicant is a partner in a Civil Union and in terms of the surrogate agreement, the surrogate mother was to hand over the child to the commissioning parents once it is born. Since only one commissioning parent was allowed to take up this role, the Applicant decided to take up this role and hence applied for the leave. [5] The Respondent initially offered the Applicant “family responsibility leave” or “special unpaid” leave. Later, the Respondent then granted the Applicant two months paid adoption leave and two months unpaid leave.
The Applicant, aggrieved by the decision approached the Labour Court on the ground that such a decision made by the Respondent discriminated on the grounds of gender, sex, family responsibility and sexual orientation as provided for in section 61 of the Employment Equity Act [6].
The relief that the Applicant was seeking was that the Respondent refrain from the discrimination that occurred and that due accord be given to the rights of the Applicant. The Applicant also claimed damages and payment for the unpaid leave he was required to take [7].
The Labour Court’s decision
The Respondent’s maternity leave policy was similar to the provisions of the BCEA. The Respondent’s policy provided for paid maternity leave of a maximum of four months. This policy went on to state that “this leave shall be taken four weeks prior to the expected date of birth or earlier” [8]. The only difference between the Respondent’s policy and the BCEA’s provisions is that the Respondent’s policy in addition gives two months maternity leave on full salary to permanent employees adopting a child younger than 24 months [9]. The Respondent relied on its own policies governing maternity leave and not that of the BCEA [11].
The Respondent denied that its policy was discriminatory on the basis that the word “maternity” applied only to women and only women were entitled to such leave.
The Court found that this reasoning did not take into account the best interests of the child, and by not allowing the Applicant to take such leave infringes on the parental care, as envisaged in section 28 of the Constitution and section 9 of the Children’s Act.
The Court went on to state that given the circumstances of the surrogate agreement and that the child needs to be handed to the commissioning parent after birth and the Applicant was such a parent, there should be no reason as to why an employee in the position of the Applicant should not be granted maternity leave for the same reason as a natural mother is granted such leave [10].
The Judge's Order
The Judge stated that in order to deal properly with this matter it would be necessary to amend legislation, in particular the BCEA. He also pointed out that his reasoning would apply to same sex couples who have entered into a surrogacy agreement. The Judge ordered that the Respondent’s maternity leave procedure constitutes unfair discrimination. The Respondent was then directed to apply its policy taking into account the status of Civil Union parties and not to discriminate against the rights of commissioning parents who have entered into a surrogate agreement [12]. The Judge also ordered that the Respondent pay the Applicant an equivalent of two month’s salary and for the Respondent to pay the costs incurred by the Applicant in the proceedings [13].
Issues
- The judgment is phrased in such a way that it would only apply to the Respondent’s policy and not any other Employer.
- Only partners in a Civil Union are recognised, particularly those who have a surrogate agreement in place. What happens to those who have unregistered Civil Unions but have a surrogate agreement? How will this be enforced? [14]
- The scope of paternity leave remains very narrow. It does not assist the great majority of fathers. As the law currently stands, these fathers only get 3 (three) days family responsibility leave. This could be considered discriminatory if men in homosexual couples are now afforded paternity leave and men in heterosexual relationships only get 3 (three) days family responsibility leave.
Conclusion
The MIA judgment is a small step forward for paternity leave. However, a great deal of work remains to be done in order to get labour legislation to a point where it is satisfactory to both sexes.
Arvitha Doodnath
Legal Researcher
arvitha@hsf.org.za
Sources:
1. MIA & State Information Technology Agency (PTY) LTD, case number: D312/2012.
2. Act 75 of 1997.
3. At paragraph 7 of the judgment.
4. At paragraph 2 of the judgment.
5. At paragraph 16 of the judgment.
6. At paragraph 1 of the judgment.
7. At paragraph 1 of the judgment.
8. At paragraph 10 of the judgment.
9. At paragraph 11 of the judgment.
10. At paragraph 19 of the judgment.
11. At paragraph 17 of the judgment.
12. At paragraph 24 of the judgment.
13. Ibid.
14. http://www.werksmans.com/wp-content/uploads/2015/06/043233-WERKSMANS-maternity-leave.pdf
