Employment Relations

Contracts of employment should contain a maternity leave clause.

In my experience when the Department of Labour has audited contracts of employment the inspector has not been satisfied with contracts that include leave in the following way: “Maternity leave will be granted in accordance with the Basic Conditions of Employment Act“. Employers who use contracts that word leave (or other important entitlements) in this way often receive a compliance order to rectify the clauses and provide more information.

It is my recommendation that maternity leave be properly detailed in all contracts of employment.

I do not recommend removing the maternity leave clause when handing a contract to an employee who is not entitled to maternity leave. For example: I do not recommend removing the maternity leave clause in male employee contracts. The reason for this is that less administration errors occur when contracts are standardized as far as possible across the organization and specific job levels.

An employer may, at their discretion, grant maternity leave that is more favorable than what is stipulated in the Basic Conditions of Employment Act.

If the maternity leave entitlement is the same as the basic conditions of employment, then employers can make use of the maternity leave contract clause provided below.

Maternity Leave Contract Clause

1. MATERNITY LEAVE (Only applicable to female Employees)

1. Female Employees are entitled to 4 (four) consecutive month’s maternity leave.
2. The maternity leave will be unpaid, but the Employee may claim maternity benefits as laid down in the provisions of the Unemployment Insurance Act 2001, as amended.  
3. The Employee may commence maternity leave:
   • At any time from 4 (four) weeks before the expected date of birth, unless otherwise agreed; or
   • On a date from which a medical practitioner or midwife certifies that it is necessary for the Employee’s health or that of her unborn child.
4. The Employee may not work for 6 (six) weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so.
5. The Employee must notify the Employer, at least 4 (four) weeks before the intended maternity leave, in writing, of the date on which the Employee intends to:
   • Commence maternity leave; and
   • Return to work after maternity leave.

If your company grants maternity leave that is more favorable than the BCEA then please adapt the wording accordingly and ensure that your contracts of employment match what is happening in your business.

I hope this information is helpful,

Carmen Fourie