Limpopo couple lodges civil action with labour department for equal parenting leave and benefits

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Civil court action has been instituted against the employment and labour department, challenging sections of its Basic Conditions of Employment Act related to its “unconstitutional” parental leave provisions.

Werner van Wyk, who lives in Polokwane, had to quit his job after he was denied an equivalent of maternity leave when the couple decided that he would be the primary caregiver for their first child.

Ika van Wyk runs two small businesses, which wouldn’t be able to trade if she took four months off.

The court application is supported by Sonke Gender Justice.  

The NGOs senior strategic adviser, Bafana Khumalo, told the Mail & Guardian that they had received papers from the department and are now engaging with the court to allocate a date for the oral arguments.

The current parent leave laws have been brought into question because fathers are entitled to only 10 days after the birth of their children, whereas mothers are entitled to four months of unpaid maternity leave.

The State of South African Fathers 2021 report shows that only 58% of fathers had access to parental leave.

Werner told the M&G in written correspondence that not allowing men to share in daily childcare activities leaves female business owners no choice but to step away from their businesses. By doing so, he said, their businesses are jeopardised, risking the livelihood of dependents. 

Advocate Kaiél Grobler, of Law For All, said: “These laws were discriminatory at its core and intended to keep men in the labour force and women out.”

Werner said South Africa could follow the approach taken by countries such as Sweden or Denmark, where parental leave sharing has been implemented.

Human capital coordinator of Altron Systems, Salome Maphutha, told the M&G that South Africa could “do better” when it came to maternity rights for fathers.  

“Mothers need assistance and giving fathers more time off can make the healing or recovery process [of the mother after giving birth] easier. Also, this can help the new parents cut costs because they will not have to hire a housekeeper or nanny, so it is not only about childcare.”

Working parents often find themselves in a state of panic when they need time off to take care of their children, as section 27 of the Employment Act gives them only three days.  

Family responsibility leave refers to leave days that can be taken by employees to attend to pressing family issues. This can be the birth of the employee’s child, sickness of the employee’s child or death of the employee’s life partner, child, spouse, sibling or grandparents. 

“If a parent needs more time off, we usually refer to the policies of the organisation, then they will have to take time off from their annual leave, which still needs to be approved by the employer,” said Maphutha.

Although it is within the employee’s rights to take leave, there can be circumstances that prevent its approval. 

According to the labour law, not all employees qualify for family responsibility leave. If one is new at a job or doesn’t work the required hours and days, the employer is within their rights to refuse family responsibility leave. 

According to the department of labour: “Only an employee who has worked for longer than four months with the same employer, and who is employed on more than four days per week with the same employer, qualifies for family responsibility leave.”

Maphutha said: “Parents need to understand that leave can be denied by employers due to a number of reasons, operational requirements for example, and taking time off without consent is a dismissable offence.”