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Laying Down The Law On Maternity Leave

Laying Down The Law On Maternity Leave

Most pregnant working women will find themselves asking several questions regarding their maternity leave. Just how much leave should you take? How do you claim back from UIF? What are your rights? What are your employer’s rights?

You may find that fellow colleagues offer you conflicting advice based on their own experience with the company. If you find you are in this situation, your best bet would be to adhere to the advice offered by labour law. Here are some of the basic facts laid out by the law.


Your basic rights

Current South African labour law states that pregnant employees may take up to four consecutive months of maternity leave (this is based on Legislation in Section 25, of the Basic Conditions of Employment Act). Workers may take maternity leave one month before their due date, or earlier or later as agreed or required for health reasons. According to the law, workers may not go back to work within six weeks after the birth, unless their doctor or midwife says it is safe. Pregnant or nursing workers may not do work that is unsafe for her or her child.


Your employer’s basic rights

Although you are strongly protected by the law, it is only fair that your employer also enjoys certain rights. According to the Basic Conditions of Employment Act (No. 75 of 1997) an employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to commence maternity leave and return to work. Notification must be given at least four weeks before the employee intends to commence maternity leave or, as soon as is reasonably practicable.


Threat of unfair dismissal

You may recall an article that appeared on Monday 24th January in the Star Newspaper in Johannesburg entitled “Working moms get a raw deal.” This article addressed the issue of employees, having been on maternity leave, returning to work only to find that they have been dismissed.

The South African Labour Guide further addressed this topic in an article that appeared on their website entitled -Pregnancy and the Employer’. This article further explored the topic of unfair dismissal in greater detail and stated that the national attention given to the issue after the article appeared in The Star only scratched the surface of these issues concerning pregnancy and the employer, what is fair and what is not fair, and what is allowed and what is not allowed.

The South African Labour Guide states that employers need to understand that no person may be discriminated against or dismissed on account of pregnancy. As a pregnant employee, you are strongly protected by several acts and it would be a good idea to familiarise yourself with them. However, remember that current South Africa law clearly states that the dismissal of an employee on account of her pregnancy, intended pregnancy, or any reason related to her pregnancy, is automatically unfair (In terms of section 187(1)(e) of the Labour Relations Act, 1995). The definition of dismissal includes the refusal to allow an employee to resume work after she has taken maternity leave in terms of any law, collective agreement or her contract.


Paid or unpaid leave

South African law does not require employers to offer paid maternity leave and they are under no obligation to do so. However, some companies may have certain policies in place that allow you paid leave which you, as an employee, will then be required to make provision for. That is why it is very important that you read your employment contract thoroughly and query such statements before agreeing upon them.


Claiming UIF

If you have been contributing to the Unemployment Insurance Fund (UIF) you can claim from the Maternity Benefit Fund. The Fund pays a percentage of the wage or salary that you earned while contributing to the fund. Therefore, depending on your salary, you may claim between 30% and 58% of your salary during maternity leave.

In order to claim, you need to first have the following documents in order:

–          13-digit bar-coded ID or passport;

–          form UI-2.8 for banking details;

–          form UI-2.7;

–          form UI-2.3 (application form)

–          medical certificate from a doctor or birth certificate of the baby; and

–          form UI-4  (follow-up form).

Once you have all the documents, you may go to the nearest labour centre to hand them in. If for any reason, you are too ill, you can organise for someone else to go in you place. Staff at the labour centre will assist them with all the processes and give them more information.

When should I claim? According to the Department of Labour, workers must apply at least eight weeks before their child is born. You may claim for up to 17 weeks, however, workers who miscarry in the third trimester or have a stillborn child can only claim for six weeks.

How will I be paid? Benefit payments can be collected from a labour centre of your choice. The good news is that no tax is payable on the benefits.


Important contact details

It is always a good idea to keep these contact details on hand in case you need to query any additional information.

South African Labour Law: email

Unemployment Insurance Fund: (012) 337 1680 

Department of Labour Head office: (012) 309 4000

CCMA national office: (011) 377-6650/6600 or email

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