Most Read Contributor in South Africa, September 2016
An important judgment on maternity leave for men was handed down
by the Durban Labour Court on 26 March 2015, in the case of Mia v
State Information Technology Agency (Pty) Ltd, which considered
whether the State, acting as employer, had unfairly discriminated
against a male employee who had applied for maternity leave in
terms of the State Agency's Maternity Leave Policy.
Briefly, the facts of this matter were that the male employee
had entered into a civil union with a same-sex partner in terms of
the Civil Union Act, 2006.
A year after the union, the employee and his spouse entered into
a surrogacy agreement, which was confirmed as an order of the High
In terms of the surrogacy agreement, from the point of birth the
employee and his spouse would be deemed to be the parents of, and
responsible for, the child.
In anticipation of the birth of the child, the employee applied
to his employer for paid maternity leave. The employer's policy
provided for paid maternity leave for a maximum of four months. The
employee was initially refused maternity leave on the grounds that
the employer's policy and the Basic Conditions of Employment
Act only covered "female" employees and was silent on the
issue of leave for surrogate parents.
The employer eventually agreed to grant the employee two
months' paid adoption leave and two months' unpaid
When the matter came before the Labour Court, the employer
denied its policy was discriminatory and the word
"maternity" defined the character of the leave
entitlement and, as such, it was a right to be enjoyed by female
The employer further argued that its maternity leave policy was
designed to cater for employees who give birth, based on the
understanding that pregnancy and childbirth create an undeniable
physiological effect that prevents biological mothers from working
during portions of pregnancy and during the post-partum period.
The court, in considering the matter, found that the right to
maternity leave is not linked solely to the welfare and health of
the child's mother, but must out of necessity be interpreted to
take into account the best interests of the child.
The court also had regard to the fact that the surrogacy
agreement specifically provided for the surrogate parents to assume
immediate responsibility for the child from the point of birth.
The court observed in passing that legislation such as the Basic
Conditions of Employment Act would need to be amended to properly
deal with such matters, as this legislation proceeds from the basis
that only females are entitled to maternity leave.
In its judgment, the court found that the employer had unfairly
discriminated against the employee by refusing to grant him paid
maternity leave. It then went on to find that the employer, in
applying its policies regarding maternity, must recognise the
status of parties to a civil union and not discriminate against the
rights of surrogate parents.
The court further ordered the employer to pay the balance of the
two months' maternity leave that had not been paid to the
This judgment paves the way for employees in same-sex unions to
request maternity leave where they have become parents through a
surrogacy arrangement. This would, by implication, arguably also
include an adoptive parent of a recently conceived child or a male
parent whose partner dies during childbirth.
The Basic Conditions of Employment Act provides as a right that
those entitled to maternity leave must be given four months'
maternity leave, but does not require an employer to pay maternity
leave. Most employers do pay an employee part or all of that
employee's salary while on maternity leave. With this judgment,
employees in a similar position to the applicant in this matter
would be entitled to contend for that paid maternity benefit where
the employer has permitted its female employees an entitlement to
The judgment may also impact on the position of employees who
are not paid by employers and who claim maternity leave benefits
through the Unemployment Insurance Fund. It would seem that the
Unemployment Insurance Fund would have to fund unemployment
insurance benefits lodged by surrogate, adoptive or male parents
who have to assume the role of primary care giver.
ENSafrica (in particular, Irvin Lawrence, the head of the
firm's Durban employment law team) acted pro bono for the
employee in the above matter.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Employees must understand the notice periods stipulated by law. When an employee gives notice of their resignation to an employer, they is advising the employer that they will cease to work for the employer from a certain date.
Nigeria is a federal constitutional republic located on the west coast of Africa. Modern Nigeria has its origins as a British colony through the 19th and 20th century until it achieved independence in 1960.
The jurisprudential basis is pithily expressed as staying in sync with the global position on employment relationship, easily summed up as "International Labour Standard" and "International Best Practice".
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