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What is Labour Law Maternity Leave?

Information extracted from the internet, not original of this website:

Pregnant employees are strongly protected under existing South African labour law. There are no fewer than six pieces of legislation that require employers to treat pregnant and post-pregnant employees with the greatest of care. One of these pieces of legislation is the Code of Good Practice on the Protection of Employees During Pregnancy And After the Birth of a Child.

The code, issued in terms of the Basic Conditions of Employment Act (BCEA), is aimed at protecting pregnant and post-pregnant employees. The code obliges employers to:

  • Encourage women employees to inform the employer of their pregnancy as early as possible so as to ensure that the employer can assess risks and deal with them
  • Evaluate the situation of each employee who has informed the employer that she is pregnant.
  • Assess risks to the health and safety of pregnant or breast-feeding employees within the workplace
  • Implement appropriate measures to protect pregnant or breast-feeding employees
  • Supply pregnant or breast-feeding employees with information and training regarding risks to their health and safety and measures for eliminating and minimising such risks
  • Maintain a list of jobs not involving risk to which pregnant or breast-feeding employees could be transferred.

Employers should note that even where an employee who has already given birth is 100% well, the illness of the newborn baby entitles the employee to get time off to look after the child. In the case of De Beer v SA Export Connection cc t/a Global Paws (2008, 1 BLLR 36), the employee gave birth to twins and took one month's maternity leave by agreement.

As the babies were both ill by the time the one-month maternity leave period was up, the mother applied for another month off. The employer granted her only two more weeks' leave and, when she did not return to work thereafter, she was dismissed.

The employee referred the matter to the Labour Court claiming that the dismissal was automatically unfair because she had been fired for reasons related to her pregnancy. That is, Section 187 of the Labour Relations Act (LRA) classifies a dismissal as automatically unfair if the reason for the dismissal was related to the pregnancy of the dismissed employee,

The employer argued that the illness of the children did not relate to the pregnancy. It argued that the phrase in the LRA "reasons relating to pregnancy" refers to the mother herself and not to the new- born children.

Female employees have a right to four months maternity leave. This leave can start four weeks before the expected date of birth and the employee cannot be forced to go back to work for six weeks after the birth of the child.
Based on Legislation in Section 25, of the Basic Conditions of Employment Act

Workers may take maternity leave 1 month before their due date, or earlier or later as agreed or required for health reasons.Workers may not go back to work within 6 weeks after the birth unless their doctor or midwife says it is safe.
Based on Legislation in Section 25, of the Basic Conditions of Employment Act

An employee who bears a still-born child may remain on maternity leave for six weeks after the still birth or a longer period if a medical practitioner states that it is necessary for her health and safety.

Maternity leave may be paid or unpaid. If the employee has been contributing to the Unemployment Fund, she will be able to claim benefits during the period that she is on maternity leave. An employer may appoint a temporary employee to perform the duties of the employee while she is on maternity leave.

If you are planning to take maternity or paternity leave, you should inform your employer of the expected date of the arrival of your child. Employees on maternity leave also need to inform their employers in writing of when they expect to return to work.

A pregnant or nursing worker may not do work that is unsafe for her or her child.
Based on Legislation in Section 26, of the Basic Conditions of Employment Act

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