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Is your employee entitled to take the remainder of her four months maternity leave when her newborn is sick?

by , 14 April 2014
One of the common questions regarding maternity leave is whether or not an illness of a newborn baby entitles a mom to time off so she can take care of her child. Keep reading to find out the answer so you don't land up paying your employee 20 months' remuneration in compensation.

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Can my employee resign when she's on maternity leave?

If your employee is on maternity leave, I'm willing to bet you've wondered if she'll even come back after tasting how great life is spending time at home with her beloved newborn.

But this can be a stressful time for you...

After all, not only do you need to look for a temp to fill your employee's role, you'll probably have to do piles of research trying to find answers to your maternity leave questions.

Fear no more! Click here to have all your maternity leave questions answered.


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Your employee is entitled to the rest of her maternity leave if her newborn is sick

Labour law expert, Ivan Israelstam explains in an article on Labour Guide 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.

Israelstam says in the case of De Beer v SA Export Connection cc t/a Global Paws (2008, 1 BLLR 36), an employee gave birth to twins and took one month's maternity leave by agreement.

Unfortunately, the babies got ill by the time the one-month maternity leave period was up. As a result, the mother applied for another month off. But, her employer only gave her two more weeks' leave and when the employee didn't return to work after the two weeks, she was dismissed.

According to Israelstam, the employee then referred the matter to the Labour Court and claimed the dismissal was automatically unfair because she had been fired for reasons related to her pregnancy. The employer disagreed with this and said the phrase 'reasons relating to pregnancy' in the Labour Relations Act refers to the mother herself and not to her newborn children.

The court didn't agree with the employer's stance.
 

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The Labour Court found that an employee is entitled to the rest of her maternity leave if her newborn is sick

In the Labour Guide article, Israelstam says the Labour Court decided that:
 

  • The phrase 'reasons relating to pregnancy' refers not only to the mother herself, but also to the newborn child and the mother's right to nurture the child;
  • The agreement entered into by the parties limiting the maternity leave to one month was null and void;
  • The employee was legally entitled to take the remainder of her four months maternity leave to look after her babies;
  • The dismissal was automatically unfair; and
  • The employer had to pay 20 months' remuneration in compensation plus the legal costs of the employee.


The bottom line: 'Looking after newborn babies falls under maternity leave and not under family responsibility leave or any other type of leave,' concludes Israelstam.

If you want to avoid paying 20 months' remuneration in compensation, give your employee time off when her newborn is sick.

Remember that you have a duty to protect your employee before and after the birth of her child.



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