Leave

Female employees have a right to four months maternity leave. By law your employer is not obliged to give you paid maternity leave, but you are entitled to four consecutive months of maternity leave. The maternity leave may begin at any time from at least four weeks before the birth of the baby and may also be taken earlier if the woman’s medical condition does not allow her to work. She may not work for six weeks after the birth of her child unless declared fit to do so by a doctor or midwife.

Claim from the UIF (Unemployment Insurance Fund)

If she has been contributing to the Unemployment Insurance Fund (UIF) a mom can claim from the Maternity Benefit Fund. She must go to the nearest labour centre with an ID book or passport, banking details and a medical certificate. If the woman is too ill to go to the centre, she can send someone on her behalf.

Job Security after Maternity Leave

There have been cases where women find themselves unemployed after returning from maternity leave. There are four laws that regulate pregnancy:

1. Basic conditions of Employment Act;
2. Labour Relations Act;
3. Unemployment Insurance Act; and
4. Employment Equity Act.

Any clause in an employment contract which attempts to control when a woman can and cannot fall pregnant is not only against the laws that regulate maternity, but against the constitution.

Section 27 (1) (a) of the Constitution protects the right to bodily and psychological integrity, which includes the right to make decisions concerning reproduction [section 12(2)] and gives every person the right to health services, including reproductive health care [section 27(1)(a)].  No person may be discriminated against or dismissed on account of pregnancy. The relevant provisions establishing this right are section 9(3) and (4) of the Constitution, section 187(1) of the Labour Relations Act 66 of 1995 and section 6 of the Employment Equity Act of 1998.

SA Constitution:

9. Equality.

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3)

27. Health care, food, water and social security.-

(1) Everyone has the right to have access t o –

(a) health care services, including reproductive health care.

Labour Relations Act:

187. Automatically unfair dismissals

(1)           A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is-

(e)     the employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy;

Basic conditions of Employment Act

Maternity leave

25. (1) An employee is entitled to at least four consecutive months’ maternity leave.

(2) An employee may commence maternity leave—

(a) at any time from four weeks before the expected date of birth, unless otherwise agreed; or

(b) on a date from which a medical practitioner or a midwife certifies that it is necessary for the employee’s health or that of her unborn child.

(3) No employee may work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so.

(4) An employee who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to maternity leave for six weeks after the miscarriage or stillbirth, whether or not the employee had commenced maternity leave at the time of the miscarriage or stillbirth.

(5) An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to—

(a) commence maternity leave; and

(b) return to work after maternity leave.

(6) Notification in terms of subsection (5) must be given—

(a) at least four weeks before the employee intends to commence maternity leave; or

(b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.

(7) The payment of maternity benefits will be determined by the Minister subject to the provisions of the Unemployment Insurance Act, 1966 (Act No. 30 of 1966).