Maternity Leave in South Africa
The Basic Conditions of Employment Act states that employers need to give female workers at least 4 months of consecutive maternity leave. This is generally unpaid leave, although in some cases a collective bargaining agreement or your contract may provide for partial payment or full payment for some, or all of that time. Such an agreement or contract might also allow for more than 4 months of leave. If you do not get full pay whilst on maternity leave, and you have been contributing to the UIF for at least 4 months, then you are also able to claim UIF. Please see our post on Maternity Leave UIF.
You are allowed to start your maternity leave up to 4 weeks before the due date, although you can start sooner if it is necessary for your health or that of the baby. You can also work right up till your due date if you feel you are able to, in order to spend more time with your baby. The BCEA states that a worker should not go back to work within 6 weeks after the birth, unless a doctor has certified her to do so.
In the event of a stillbirth or miscarraige in the third trimester, you are entitled to 6 weeks of leave, whether or not you have already started maternity leave.
If you are given paid maternity leave, then your company might want you to sign something saying that you will pay back the leave pay if you do not return to work after your leave is finished.
It is possible to ask for less strenuous work, fewer hours, or to be taken off of night shift when returning to work, if this is practical for your employer. If you are breastfeeding, there may be other issues regarding the health of your baby if you are working with chemical or biological hazards. You employer cannot expect you to do work that could endanger you or your baby while you are nursing. They also need to give you time off if your newborn baby is ill. This is all covered by the code of good practice on the protection of employees during pregnancy and after the birth of a child.
Fathers are normally entitled to three days of family responsibility leave after the birth of a child, as long as they have been working for more than four months and for more than 4 days a week.
How much notice should I give?
Generally four weeks written notice must be given to the employer before starting maternity leave, and this should state the dates when the leave will start and finish. However the earlier you give them notice the better, so that they have time to arrange for what is going to happen with your workload while you are away. It’s best to have a discussion with your HR team regarding how maternity leave works in your organisation. While it is your manager’s responsibility to allocate your work to other colleagues, it would probably be appreciated if you could provide some kind of suggestion for how your work could be re-distributed.
Protection from Dismissal
It is illegal to fire someone for becoming pregnant (or intending to do so) or for taking maternity leave. The law considers it an unfair dismissal if an employer does not allow an employee to return to work after her maternity leave. It may be the case that the position is not necessary any longer, and that the employee would have been retrenched if not on maternity leave, but in this case the employer is supposed to make every effort to offer an alternative position.
While the Unemployment Insurance Act provides for similar benefits for workers who adopt as for those on maternity leave, the BCEA does not provide for adoption leave in the same way that it provides for maternity leave. At this point any adoption leave will need to be negotiated with your employer.