A new case has brought the legislation regarding parental leave in South Africa into question and how best employers should manage parental leave in South Africa.
Several countries offer time off for employees following the birth of a child, regardless of gender or sex; however, a new case has brought the legislation regarding parental leave in South Africa into question.
In a recent case filed at the High Court, Werner and Ika van Wyk argue that sections within the BCEA, namely 25 and 26, should be declared unconstitutional as they unfairly discriminate against fathers of newborn children – by unjustifiably limiting their rights to paternity leave in South Africa.Werner van Wyk applied to his employer for four months of leave to care for his newborn child after his wife returned to operating her two businesses following the birth of their child.
This is not the first time this has been challenged; in 2015, a same-sex couple who entered into a surrogacy agreement and applied for paid maternity leave was denied. The Labour Court adopted a purposive interpretation of maternity leave and found that the right to maternity leave is not linked solely to the welfare of the child’s mother but also to the best interests of the child, therefore does not rule in the best interests of the child would ignore the principles enshrined in the Constitution as well as the Children’s Act.
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