In this edition we delve deeper into our recently published article pertaining to Parental leave, previously known as Maternity Leave. 
 
We have had a few enquiries regarding this subject, and in this edition, we look at some of the frequently asked questions. 
 
Q: How do we prevent cases of Parental leave abuse in instances where both parents are employed at different companies?
 
A: We agree that this would be challenging however as an employer you are entitled to request proof of the event and further to request full disclosure of the leave distribution between the parents and the status of employment of the other parent.  Our suggestion is that on the leave form itself this disclosure requirement is added and that the spouse contact details, employer details and leave distribution details be made available when the leave is applied for.  This may not stop abuse but deter it and further assist in any disciplinary process should fraud or abuse be suspected.
 
Q: What is the actual amount of leave due, is there any differentiation?
 
A: If both parents to the parental relationship are employed then both would be entitled to the aggregate of 4 months and 10 days leave.  If only one is employed and the other not, then such employee would be entitled to 4 months.
 
Q: Can I deduct any leave taken prior to the birth or adoption?
 
A: In the example of a female employee the BCEA requires such employee not to work 4 weeks before the expected birth and not to return 6 weeks after the birth, unless agreed or certified otherwise.  Therefore, in this case 10 weeks will be deducted from the aggregate of 4 months and 10 days, leaving the parents whom are both employed to share the aggregate of the remainder days. 
 
Q: How can such leave be taken?
 
A: The leave may be taken by the parties in such manner as they may agree, including concurrently or consecutively, or partly concurrently and partly consecutively, however within the set period of 4 months and in a single sequence of days.
 
Q: Is there any change in the laws with regards to the payment of the leave?
 
A: No it remains unpaid, however employees may claim through UIF
 
Q: If I have a benefit for the payment of Parental (previous maternity) leave in my employment contract, must I make this option for payment available to male / or other non-child baring staff  whom are party to a parental relationship as well?
 
A: Yes you must, the central point to the Con Court matter was addressing unfair discrimination towards non child baring parents.  It would be inherently unfair not to extend your paid paternal (maternity) benefits to male / other non-child baring employees.
 
Q: Can I change my contract and amend the paid maternity / parental leave benefits I provide my staff?
 
A: The terms of a contract may only be amended if parties to the agreement consent to such change
 
Q: What if I have a policy that provides a Maternity / Parental leave benefit, but it does not form part of my employment contract as a condition or actual benefit, may I unilaterally change this policy and remove the benefit?
 
A: Any policy amendment, especially where such policy entitles an employee a benefit (such as paid maternity benefits) one may not change such unilaterally without due consultation with the intent to reach consensus on such benefit, either being taken away or amended.
 
Q: Is it possible that a non-child baring parent who is a party to multiple births per annum, be entitled to 4 months leave / or the aggregate of 4 months and 10 days, per birth at a time?
 
A: This is not impossible, however an employer’s operational requirements may also be considered in this time pertaining to the length and consecutive nature of the absence from the workplace, requiring the employer and employee to agree to a reduced amount of days, or limiting such events in order to accommodate the employer and its operational needs.  Employers and employees would have to strike a balance between the employers’ operational requirements and the employees’ entitlement to such leave.
 
There are still a lot of uncertainties due to this being a recent amendment and the Courts/ The CCMA still has to interpret the application of this amendment, as this happens more certainty will arise in dealing with some of the points raised hereto.
 
As always contact us for expert advice and guidance.