In MIA v State Information Technology Agency (Pty) Ltd (D312/2012) (2015) ZALCD 20 the applicant, who was in a same-sex civil union, applied for maternity leave as per the employer’s leave policy.  The applicant and his partner had entered into a surrogacy agreement and were awaiting their child.


The application for maternity leave was declined by the employer on the basis that maternity leave was only for female employees and that no specific provision was made for surrogate parents in the Basic Conditions of Employment Act 75 of 1997. The employer’s leave policy granted a female employee four (4) months paid maternity leave.


The employer, however, had a policy on adoption and decided to deal with the employee in terms of this policy. In accordance with the employer’s policy on adoption, the employer granted two months paid leave and two months unpaid leave to the applicant.


The applicant felt that this was unfair and that the employer’s actions infringed on his constitutional right not to be unfairly discriminated against. In short, female employees were allowed maternity leave when naturally having a baby, but male surrogate parents did not enjoy the same right. The employer thus discriminated against the employee based on gender, which is a listed ground of discrimination.


The applicant lodged a case of unfair dismissal at the Commission for Conciliation, Mediation and Arbitration (“CCMA”) against the employer. The applicant sought an order to stop the employer from unfairly discriminating against him and other surrogate parents in the same situation. The case was not resolved at the CCMA and was referred to the Labour Court.


The court held that the entitlement to maternity leave must include the best interests of the child as per the Constitution of the Republic of South Africa 108 of 1996 read together with the Children’s Act 38 of 2005. The court further held that there are no reasons why the applicant, or a person in the same position as the applicant, should not be entitled to maternity leave for the duration that a natural mother may be entitled to. The court further held that the employer’s refusal to grant the applicant four months paid maternity leave was an act of unfair discrimination. The employer was ordered to pay the employee the salary for the two months’ unpaid maternity leave.


The Constitution of the Republic of South Africa 108 of 1996 prohibits unfair discrimination, and numerous other Acts have been put into action in order to give effect to the Constitution in this regard.


The Employment Equity Act 55 of 1998 was promulgated in order to further protect the rights of employees by promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination.


Section 6 (1) of the Act prohibits unfair discrimination in the workplace and reads as follows:

“No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.


In light of the above, it is thus clear that discrimination based on gender is prohibited. Discrimination based on other, arbitrary grounds is also prohibited if it can be proved that the differentiation amounts to unfair discrimination.


Guidelines for employers:

• Taking the above in mind, employers must ensure that they treat all employees the same. Employers must be open-minded when an unfamiliar situation arises, as was the case in MIA v State Information Technology Agency (Pty) Ltd and must seek legal advice before making any decisions which might discriminate against an employee.


• Employers must seek legal advice on existing policies and when adopting new policies in order to ensure that their policies are in line with the relevant law.


• Employers must appoint competent Human Resources Agents who must always be able to listen to and advise employees on their concerns. Issues regarding alleged discrimination must be brought to the attention of the employer immediately and must be dealt with urgently and effectively.


• Joining a competent Employers’ Organisation such as CEO is extremely important and will ensure that an employer is put in the best position possible to deal with any alleged discrimination matters.


Article by: Gerhard Strydom

Dispute Resolution Official – Kimberley