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Gay father takes employer to court over maternity leave! Avoid a similar situation - make these maternity leave points clear to your employees

by , 25 November 2014
If we were to draw up a list of things that cause feuds between employers and employees, maternity leave would easily make it onto that list.

And that's exactly why a Durban man in a same-sex marriage is taking his employers to the Labour Court.

The man says the fact that his employer turned down his request for full maternity leave (four months) and treated him as an adoptive parent amounts to unfair discrimination.

In addition to asking the Labour Court to stop his employer from practicing 'unfair discrimination', he also wants two months' pay and damages of R400 000.

While the court hasn't passed judgment yet, you can avoid finding yourself in a similar situation. All you have to do is make the following three maternity leave points clear to your employees...

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Three maternity leave points you need to make clear to your employees

Most of the time, disputes about maternity leave happen because employees aren't clear about what you allow and don't allow. Or because they're not familiar with what the law actually says.
So be proactive and tell your employees the facts.
#1: Tell them that in terms of the Basic Conditions of Employment Act (BCEA), three types of employees are entitled to maternity leave.
In this article, we explain that:
  1. Any female employee who's pregnant, regardless of her length of service, is entitled to four months' maternity leave;
  1. Any employee who adopts a child under the age of two is entitled to adoption leave and adoption benefits of four months from the Unemployment Insurance Fund (UIF); and
  1. If an employee has a miscarriage in her third trimester of pregnancy, or bears a stillborn child, she's entitled to six weeks' maternity leave after the miscarriage or stillbirth. This is regardless of whether or not she started her maternity leave at the time of the miscarriage or stillbirth.
#2: Tell your employees that if they adopt a child, both parents are entitled to at least three days of paid family responsibility leave. And make it clear that male employees aren't entitled to maternity leave, but can take three days family responsibility leave.
#3: Lastly, tell your employees they can start maternity leave any time from four weeks before the expected date of birth, unless otherwise agreed. Or on a date that a medical practitioner or a midwife certifies is necessary for them or their unborn child's health.
Don't forget to tell them they can't work for six weeks after their child's born, unless a medical practitioner or midwife certifies they can.

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Because employees forget easily, have a maternity leave policy in place to communicate these points

Make sure your policy covers these points and every other maternity leave issue. Also tell your employees about the policy.

It makes no sense to have a policy if no-one knows about it. This in itself will cause disputes.

If you grant certain maternity leave benefits, put this in your policy too and make sure your employees know what you allow and don't allow. And be sure to apply your policy consistently so there's no confusion or court action.

There you have it: If you make these three maternity leave points clear to your employees, you could avoid landing at the Labour Court like the employer above.

PS: For more information on maternity leave, check out Your Maternity Leave Solution.

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