Page 99 - Q&A 2019/2020

What leave is father entitled to at the birth of
his child?

January 2019

“My wife is due to give birth in two months. I’ve seen media reports that a
father is now entitled to longer paternity leave, but when I approached my
employer to find out I was informed that I am only entitled to three days family
responsibility leave. What is the current position?”

In terms of the Basic Conditions of Employment Act, 75 of 1997 (“BCEA”) a father is
currently only entitled to three days paid family responsibility leave. In November
2018 a new Labour Laws Amendment Act (“Amendment Act”) was signed into
law. The Amendment Act introduces parental leave for the other parent (i.e. the
parent not claiming maternity leave, namely the biological mother) such as the
father. This parental leave will entitle a father to 10 consecutive days of parental
leave to be taken from the date that the child is born. The Amendment Act is
currently not yet in force and will commence on a date to be proclaimed in the
Government Gazette.

Importantly, parental leave, like maternity leave is unpaid leave. The Amendment
Act also provides for the Unemployment Insurance Act to allow a parent
claiming paternal leave the opportunity to claim unemployment insurance of
66% of the earnings of the parent at date of the claim, provided the parent was
in employment for at least 13 weeks before the date of application for such
parental benefits. The employer will therefore be under an obligation to assist
the parent to claim parental benefits from the Unemployment Insurance Fund.

This does not stop an employer from providing for paid or proportionally paid
parental leave, although the Amendment Act makes it clear that the parent
cannot receive more than the parent would have received had the parent
not been on parental leave. Should an employer accordingly provide for paid
or proportionately paid parental leave, it will reduce the amount of parental
benefits that the parent can claim from the UIF.

In order to claim parental leave, the employee must notify the employer in
writing of the date on which the employee intends taking parental leave (to the
extent the parent is able to do so) and such notice should be given at least 1
month before the expected date or as soon as the parent is reasonably able to
do so. The employer may not deny parental leave to a parent such as a father
claiming such leave.
Importantly, that for the time being, until a commencement date for the
Family Amendment Act is passed, fathers are only entitled to 3 days family responsibility
leave.

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