Paternity leave in the context of same sex relationships with reference to The Civil Union Act 17 of 2006

Until recently a father could not take paternity leave, but was granted family responsibility leave of three days following the birth of his child. However, in light of the Labour Court Judgment delivered on 26 March 2015 in the matter of MIA v State Information Technology Agency (Pty) Ltd 2015 (6) SA 250 (LC) some fathers will now be able to take paternity leave.

In this matter, the Applicant, a partner in a same-sex marriage, in terms of the Civil Union Act 17 of 2006 (“the Civil Union Act”), applied to his employer, the Respondent, for paid “maternity” leave of four months following the birth of their child by a surrogate.

In terms of the surrogate agreement, which was made an order of court on 13 July 2011, the surrogate mother was to hand over the child to the commissioning parents at birth and from that time onwards the commissioning parents would be deemed to be the parents of the child and are responsible for the child as regulated in the Children’s Act 38 of 2005 (“the Children’s Act”).

The Respondent declined the Applicant’s application for four months paid maternity leave on the grounds that he is not the biological mother of his child and that maternity leave only applies to female employees, as stated in the Basic Conditions of Employment Act 75 of 1997 (“BCEA”). The Respondent’s policy provided for paid maternity leave for a maximum of four months. In addition, the Respondent granted two months “maternity” leave on full salary to permanent employees adopting a child younger than 24 months. The Applicant was initially offered “family responsibility leave” or “special unpaid leave”. Later, the Respondent granted the Applicant two months paid adoption leave and two months unpaid leave.

The Applicant brought an application on the grounds of unfair discrimination in terms of section 6 of the Employment Equity Act 55 of 1998. The Respondent denied that its policy was discriminating and relied on the word “maternity” as being the defining character of the leave, namely that it was only due to, and a right to be enjoyed by female employees who had to physically recover after childbirth. The Court found that this reasoning did not take into account the best interests of the child, and by not allowing the Applicant to take such leave infringes on a child’s right to family care or parental care, as envisaged in section 28 of the Constitution of the Republic of South Africa 1996 (“the Constitution”) and section 9 of the Children’s Act. The Court went on to state that given the circumstances of the surrogate agreement and that the child needs to be handed to the commissioning parents after birth and that the Applicant was such a parent, there should be no reason as to why an employee in the position of the Applicant should not be granted maternity leave for the same reason as a natural mother is granted such leave.

The approach of the Respondent ignores the fact that the right to maternity leave as created in the BCEA in the current circumstances is an entitlement not linked solely to the welfare and health of the child’s mother but must of necessity be interpreted to and take into account the best interests of the child. Not to do so would be to ignore the Bill of Human Rights in the Constitution and the Children’s Act.

Furthermore, as our law recognises same-sex marriages and regulates the rights of parents who have entered into surrogacy agreements, the Court suggests that any policy adopted by an employer likewise should recognise or be interpreted or amended to adequately protect the rights that flow from the Civil Union Act and the Children’s Act. In order to deal properly with this matter it would be necessary to amend the legislation and in particular the BCEA.

The court subsequently ordered that the Respondent’s policy, by refusing the Applicant paid maternity leave, is declared to constitute unfair discrimination; that the Respondent is directed to recognise the status of parties to a Civil Union; and not to discriminate against the rights of commissioning parents who have entered into a surrogacy agreement. The Respondent was also ordered to pay the Applicant an amount equivalent to two months’ salary

This judgment is definitely a step in the right direction in fighting discrimination and ensuring equality in the work place. It also reiterates that the best interests of a child will always be taken into account – even by the Labour Court.

By Lizelle Marx