By: Michelle Naidoo | Partner | Mooney Ford Attorneys
Van Wyk & Others v The Minister of Labour & Others
On 25 October 2023 the High Court of South Africa declared our parental leave laws unconstitutional to the extent that certain provisions of the Basic Conditions of Employment Act and the Unemployment Insurance Act: –
- Unfairly discriminate between mothers and fathers;
- Unfairly discriminate between one set of parents and another based on whether their children were born of the mother, were conceived by surrogacy, or were adopted.
The conclusion and remedy reached by the High Court are the following:
- The declaration of invalidity is suspended for two years from the date of judgment to allow Parliament to cure the defects. “Parliament must get to work to eliminate the inequalities”.
- The appropriate immediate means by which to remove inequality in the interim period, is the proposal advanced on behalf of the Van Wyks that “All parents of whatever stripe, enjoy four consecutive months parental leave, collectively. In other words, each pair of parents of a qualifying child shall share the four months leave as they elect.”
In evaluating the differentiation of existing parental leave entitlements, on the grounds of gender, the Court held that the differentiation constitutes unfair discrimination. The controversial provisions are that one parent becomes the primary caregiver and the other is an ancillary parent. The Court observed that the cause of the scheme of the BCEA is that the birth mother is par excellence the primary caregiver, she therefore gets four months’ maternity leave. The ancillary father gets 10 days leave. This infers that the relationship between parents and their respective relationship with their children are asymmetrical. Where a family in which both parents are, in equal measure, according to their abilities, comprehensively engaged in the work of nurturing the child, the statute affords no recognition and indeed facilitates a disruption to the social dynamic which prevails in that family.
The court held that “to call a paltry 10 days leave to a father speaks to a mindset that regards the father’s involvement in early parenting as marginal.” This view is per se offensive to the norms of the constitution in that impairs a father’s dignity. Longstanding cultural norms which exalt motherhood are not a legitimate platform for a cantilever to distinguish mothers and fathers’ roles.
In this case, Mr Van Wyk is a salaried employee, whilst Mrs Van Wyk runs a business for her own account. This family preferred Mrs Van Wyk to return to trade as soon as possible and that Mr Van Wyk would be the primary caregiver during the early infancy of their child. Mr Van Wyk was ineligible for 10 days paternity leave thus he took extended, partly unpaid leave, from his employer to deal with his circumstances. The court held that this outcome triggers a violation of section 9 of the constitution. The value of this example is to illustrate that their family model is not catered for by the BCEA.
It should be noted that the concept of sharing parental leave has been adopted in various jurisdictions abroad and is thus not new to International Labour law standards. It is progressive that South Africa is making a move to equalize this statutory benefit.
Considering this groundbreaking decision, employers must review their parental leave policies and implement procedures to plan and manage situations in which working parents choose to share parental leave entitlements.