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ConCourt Rules | Fathers Now Entitled To Same Parental Leave As Mothers

Fathers Now Entitled To Same Parental Leave As Mothers

Following this judgment, mothers and fathers will be able to split their four months of leave post-birth equally.

Constitutional Court

Maternity leave

Paternity leave

  • The Constitutional Court has ruled that fathers are now entitled to equal parental leave as mothers.
  • The court found that the law, as it stands, is discriminatory to fathers and is unfair and unconstitutional.
  • Following this judgment, mothers and fathers will be able to split their four months of leave post-birth equally.
  • The Constitutional Court has found that the provisions relating to parental leave in the Basic Conditions of Employment Act perpetuate the assumption that women should be the primary caregivers of children.
  • The court has ruled that the law, as it stands, marginalises the father, depriving him of the choice to structure their child’s nurturing responsibilities.
  • Reading the judgment, Justice Zukiswa Tshiqi said that while the current leave of four months and 10 days should be retained for mothers, leave should not be restricted to mothers but extended to fathers as well.
  • The court ruled that parents should be entitled to share the available days and can split them equally.
  • This field is for validation purposes and should be left unchanged.

FAQs

Following the Constitutional Court's ruling, parents can now share their parental leave, which totals four months. They have the option to split this leave equally, allowing both mothers and fathers to take time off work to care for their newborns. This change aims to promote shared parenting responsibilities and eliminate the assumption that women should be the primary caregivers.

No, the current leave duration of four months and 10 days for mothers will remain unchanged. The Constitutional Court's ruling focuses on extending the same parental leave rights to fathers, allowing both parents to share the available leave days equally without altering the existing duration for mothers.

This ruling has significant implications for workplace policies, as employers will need to adjust their parental leave policies to comply with the new legal framework. Companies must ensure that both mothers and fathers are informed of their rights to share parental leave equally, promoting a more inclusive and supportive work environment for all employees.

The ruling positively affects the perception of parental roles by challenging traditional assumptions about caregiving. By recognizing fathers' rights to equal parental leave, it encourages a more balanced approach to parenting, fostering shared responsibilities and promoting the idea that both parents play vital roles in nurturing their children.

Register your domestic worker in terms of the Compensation for Occupational Injuries and Diseases Amendment Act 22 (COIDA).
Register your domestic worker in terms of the Compensation for Occupational Injuries and Diseases Amendment Act 22 (COIDA)

Now that the President has signed the amendment of COIDA into law, it is imperative for employers of domestic workers to register their employees under COIDA.

This means that they may now claim for injuries, disabilities or illness acquired whilst at work, which previously specifically excluded this sector.

This also means that all employers of domestic workers (including gardeners, chauffeurs, housekeepers, carers) whether part-time or full-time – must register themselves and their
employees with the Compensation Commissioner.

What sort of protection does this cover offer domestic workers?

In the event that they fall ill or suffer an injury as a direct result of their employment, they will be able to claim compensation for temporary or permanent disability, assistance with medical bills, orthotic or assistive devices and rehabilitation services.

In the event of their death, their dependants can claim compensation from the fund for funeral expenses and ongoing support in the form of a widow/widower’s pension or lump sum, a child pension or additional dependency award to cover parents, siblings and other family members who may have been dependent on the employee.

· In the case of recruitment of new employees, you are required to do so within 7 days of signing an employment contract with a new employee.

· For existing employees, employers are being strongly encouraged to register as soon as possible. It seems likely that penalties for non-registration will be implemented after the date that will be promulgated through regulations in the coming months.

· If an employer fails to register by the deadline (once it is gazetted), that employer shall be liable for substantial penalties and possible claims in the event his or her employee is injured, is disabled or sustains an illness at work.

Bernard Reisner
Cape Labour Industrial Consultants
Gardens

W.Tel no.: 021 423 3959
Cell: 082 433 8714
Fax: 021 4232 105
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

New National Minimum Wage for domestic workers
The New National Minimum Wage for domestic workers is to be implemented from 01 March 2023

Latest Update : 21 February 2023

The New National Minimum Wage for domestic workers is to be implemented from

01 March 2023.

As from 01 March 2023, the new national minimum wage will increase to R25.42 per hour, for each ordinary hour worked.

Domestic Workers Wage Increase

The increases was announced in the Government Gazette 48094, dated 21 February 2023.

Criminal Offence

An employer must be aware that it is a criminal offence to pay less that the National Minimum Wage.

An employer is not permitted to engage in a negotiation with their employee/s whereby they agree to a daily salary that is less than the National Minimum Wage.

The Basic Conditions of Employment Act ensures that no employee can receive less than what is prescribed in the Act.

National Minimum Wage

The Minimum Wage is only applicable to payment of ordinary hours of work and does not apply to allowances for transport, meals, accommodation and bonuses.

The occupation entitled “Domestic Worker” encapsulates the following job titles into the recognized definition- cleaner, child minder, carer, gardener and chauffeur.

Alternatives to Retrenchment

Due to the increase in the prescribed minimum wage, if an employer can no longer afford retaining their employee/s, it is suggested that in order to avoid retrenching their employee/s, an employer should seek alternatives by either reducing the number of working hours and/or reducing the number of days, the domestic worker works per week.

An employer cannot reduce the hours of work or days worked unilaterally as it can constitute a unilateral change to the terms and conditions of employment. Any agreement to this effect, must be agreed on freely and voluntarily and reduced to writing.

If you want to stay up to date on your rights, make sure to read the Cape Labour blog.

Person preparing to give vaccine
No Jab, No Job

Major ruling after South African woman fired for refusing Covid–19 vaccination

Find the Case File here

The Commission for Conciliation, Mediation and Arbitration (CCMA) recently ruled in favour of Goldrush Group dismissing an employee for refusing to get vaccinated against Covid–19.

Following the case, Goldrush undertook a Covid–19 risk assessment of its workplace and decided to introduce a mandatory vaccination policy, they allowed employees the opportunity to apply for exemption from the compulsory inoculation scheme.

The employee in question, a training officer, was refused an exemption and her appeal application was declined. When she still refused to take the vaccine, she was summoned for an incapacity hearing and dismissed. At the hearing, the presiding officer concluded that the employee was permanently incapacitated based on her refusal to get vaccinated. This led her to approach the CCMA and asked for reinstatement or maximum compensation.

The commissioner ruled in favour of Goldrush, saying they were satisfied with Goldrush’s approach and agreed that the employee was permanently incapacitated for refusing to take the vaccine.

The employee made the following arguments:

  • She had a right to bodily integrity.
  • She felt under extreme social pressure and emotional discomfort being asked to choose between vaccination and her livelihood.
  • This is compounded because she had to waive her rights of recourse against pharmaceutical companies and her employer.
  • She had strictly followed Covid–19 protocols
  • The World Health Organization confirmed that the vaccine does not stop the spread or contraction of the coronavirus, but serves to minimise the severity of Covid–19 symptoms.
  • All she wanted was an exemption from mandatory vaccination and to be offered an alternative position.

During the proceedings, it emerged that the employee abandoned her attempt at obtaining medical exemption after her doctors refused to provide a medical certificate in support of her application.

Goldrush contended that, given the nature of the employee’s duties, there was no other position where she could be placed.

The commissioner found that Goldrush had followed all the crucial steps set out in its vaccination policy, including considering her exemption claim. The commissioner concluded that she was permanently incapacitated on the basis of her decision not to get vaccinated and by implication, her refusal to participate in the creation of a safe working environment.

The employee had been identified as a high-risk individual who was required to interact with colleagues daily while on duty in confined, uncontrollable spaces.

What are your thoughts on the matter?

We have enclosed the following case files for you to read more about the CCMA Case here.

CONTACT CAPE LABOUR.

For more information on labour law advice or services. Please feel free to contact us at Cape Town Labour Consultants and we will gladly assist you. Cape Labour & Industrial Consultants is a Cape Town-based providing Labour Law (Industrial Relations) and advice to employers and employees across all market segments and industries since 1987.

For more information or to Contact Cape Labour. You can find all of our relevant details here.

W.Tel no.: 021-423-3959
Cell: 082-433-8714
Fax: 021-4232105
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

Part of this article was shared from My broadband.

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