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[2015] ZALCD 20
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MIA v State Information Technology Agency (Pty) Ltd (D312/2012) [2015] ZALCD 20; 2015 (6) SA 250 (LC); [2015] 7 BLLR 694 (LC); (2015) 36 ILJ 1905 (LC) (26 March 2015)
REPUBLIC
OF SOUTH AFRICA
The Labour Court of South Africa, Durban
Judgment
Case
No: D 312/2012
DATE:
26 MARCH 2015
Reportable
In
the matter between:
M
I
A
..........................................................................................................................................
Applicant
And
State
Information Technology Agency (Pty)
Ltd
................................................................
Respondent
Heard
:
19 and 20 November 2014
Delivered:
26 March 2015
Summary:
Application brought in terms of section 6 of the Employment Equity
Act by a parent in a duly registered union to have the respondent’s
decision to deny the applicant 4 months paid “maternity”
leave following the birth of their child by a surrogate to
constitute
unfair discrimination.
Judgment
GUSH
J
[1]
In this matter the applicant applies to
have the respondent’s refusal to grant him paid “maternity”
leave on the
basis that he is not the biological mother of his child
under a surrogacy agreement to constitute unfair discrimination on
the
grounds of gender, sex, family responsibility and sexual
orientation as provided for in section 61 of the Employment Equity
Act
[1]
.
The relief the applicant seeks, for himself and “other
similarly placed applicants” (sic) is for the court to direct
the respondent to refrain from so discriminating and accord due
recognition of their rights. In addition the applicant seeks damages
and payment for the unpaid leave he was required to take to care for
his child.
[2]
When the applicant applied for maternity
leave, the respondent refused to grant maternity leave on the grounds
that its policies
and Basic Conditions of Employment Act only covered
“female” employees and were silent on the issue of leave
for surrogate
parents. The respondent initially offered the applicant
“family responsibility leave” or special unpaid leave.
Subsequently
the respondent granted the applicant two months paid
adoption leave and two months unpaid leave.
[3]
The applicant is employed by the respondent
in the capacity of a Senior Specialist: Business Architecture.
[4]
On 23 May 2010, whilst so employed, the
applicant entered into a civil union with his spouse in accordance
with the provisions of
the Civil Union Act
[2]
.
[5]
On 4 July 2011 and in accordance with
section 292 of the Children’s Act
[3]
the applicant and his spouse entered into a surrogacy agreement with
a surrogate mother. The surrogacy agreement was confirmed
as an order
of court on 13 July 2011.
[6]
The relevant terms of the surrogacy
agreement applicable to this matter are:
a.
The commissioning parents are the parents
of the child born to the surrogate;
b.
The child is born from the surrogate mother
as a result of artificial fertilisation using gametes from at least
one of the commissioning
parents ;
c.
The surrogate hands over the child to the
commissioning parents at birth and the surrogate has no further
contact with the child
thereafter.
d.
The commissioning parents from that time
onwards are, in terms of the agreement, deemed to be the parents of
the child and are responsible
for the child.
[7]
In anticipation of the birth of the child
the applicant applied to his employer the respondent for paid
maternity leave from the
date of confinement for a period of four
months.
[8]
The applicant, aggrieved by this decision
referred a dispute regarding unfair discrimination the CCMA for
conciliation. It is this
dispute that is for this court.
[9]
The law governing maternity leave is set
out in section 25 of The Basic Conditions of Employment Act
[4]
and provides as follows:
(1)
An
employee is entitled to at least four consecutive months maternity
leave.
(2)
An
employee may commence maternity leave –
a.
at
any time from four weeks before the expected date of birth, unless
otherwise agreed; or
b.
…
[10]
The respondent maternity leave policy is
similar to the provisions of the Basic Conditions of Employment Act.
The respondent’s
policy provides for “paid maternity
leave of a maximum of four months”; that this leave “
shall
be taken four weeks prior to the expected date of birth or at an
earlier date …” (My emphasis). Whilst this was not
an
issue raised by the parties in argument or in the pleadings it is
clear that the requirement that the leave “shall”
be
taken four weeks prior to confinement is more restrictive than the
provisions of the act.
[11]
Unlike the basic conditions of employment
act the respondent in addition grants two months “maternity
leave on full salary
to “permanent” employees adopting a
child younger than 24 months.
[12]
In argument the respondent denied that its
policy was discriminatory and relied on the word “maternity”
as being the
defining character of the leave viz that it was only due
to and a right to be enjoyed by female employees. The respondent in
its
pleadings averred that the maternity leave policy was
specifically designed
“…
to
cater for employees who give birth … based on an understanding
that pregnancy and childbirth create an undeniable physiological
effect that prevents biological mothers from working during portions
of the pregnancy and during the post-partum period.
Thus
at least 10 weeks of maternity leave benefits have been introduced to
protect birth mothers from an earning interaction due
to the physical
incapacity to work immediately before and after childbirth.”
[5]
[13]
This approach ignores the fact that the
right to maternity leave as created in the Basic Conditions of
Employment Act in the current
circumstances is an entitlement not
linked solely to the welfare and health of the child’s mother
but must of necessity be
interpreted to and take into account the
best interests of the child . Not to do so would be to ignore the
Bill of Rights in the
Constitution of the Republic of South Africa
[6]
and the Children’s Act. Section 28 of the Constitution
provides:
28
Children
(1)
every
child has a right-
a.
…
b.
To
family care or parental care …
[14]
The Children’s Act specifically
records not only that the act is an extension of the rights contained
in Section 28 but specifically
provides:
Best
interests of child paramount
In
all matters concerning the care, protection and well-being of a child
the standard that the child’s best interest is of
paramount
importance must be applied.
[7]
[15]
Surrogacy agreements are regulated by the
Children’s Act.
[16]
The surrogacy agreement specifically
provides that the newly born child is immediately handed to the
commissioning parents.
During his evidence
the applicant explained that for various reasons that he and his
spouse had decided that he, the applicant,
would perform the role
usually performed by the birthmother by taking immediate
responsibility for the child and accordingly he
would apply for
maternity leave. The applicant explained that the child was taken
straight from the surrogate and given to him
and that the surrogate
did not even have sight of the child. Only one commissioning parent
was permitted to be present at the birth
and he had accepted this
role.
[17]
Given these circumstances there is no
reason why an employee in the position of the applicant should not be
entitled to “maternity
leave” and equally no reason why
such maternity leave should not be for the same duration as the
maternity leave to which
a natural mother is entitled.
[18]
The legislation governing “civil
unions” and surrogacy agreements is relatively recent. This
legislation is a consequence
of the adoption of the Bill of Rights in
the Constitution. That our law recognises same-sex marriages and
regulates the rights
of parents who have entered into surrogacy
agreements suggests that any policy adopted by an employer likewise
should recognise
or be interpreted or amended to adequately protect
the rights that flow from the Civil Union Act and the Children’s
Act.
[19]
It is clear that in order to properly deal
with matters such as this it is necessary to amend the legislation
and in particular
the Basic Conditions of Employment Act. In this
matter however it is not the provisions of the Basic Conditions of
Employment Act
that are under scrutiny. The respondent relied on its
own policies governing maternity leave in refusing to grant the
applicant
for month’s maternity leave.
[20]
The relief that the applicant sought was an
order:
a.
directing the respondent to refrain from
unfairly discriminating against the applicant and employees in the
applicant’s position;
b.
directing the respondent to accord due and
full recognition of the applicant and employees in the applicant’s
position their
rights as natural maternal parents;
c.
directing the respondent to recognise give
effect the right to paid maternity leave to the applicant and
employees in the applicant’s
position ;
d.
directing the respondent to pay the
applicant the sum equivalent to 2 months remuneration;
e.
damages in the sum of R400,000;
f.
costs.
[21]
I am not satisfied that it is necessary to
make such an order. It is clear that the application of the
respondent’s policy
on maternity leave discriminates unfairly
against employees in the applicant’s position. It is sufficient
to direct that
the respondent in applying its policy regarding
maternity leave give recognition of the status of parties to a Civil
Union and
recognise the rights of commissioning parents in a
surrogacy agreement.
[22]
As far as the claims by the applicant for
two months remuneration and damages are concerned, I am persuaded
that the applicant is
entitled to an order directing the respondent
to pay him the sum equivalent to two months remuneration but not to
an order for
damages. The applicant did not lead evidence sufficient
to justify an order for damages other than for the amount he should
have
been paid for unpaid leave he was required to take.
[23]
As far as costs are concerned there is no
reason why in law or fairness that costs should not follow the
result.
[24]
Accordingly for the reasons set out above I
make the following order:
a.
The respondent’s application of its
maternity leave policy by refusing the applicant paid maternity leave
is declared to constitute
unfair discrimination;
b.
the respondent is directed that in applying
its policy regarding maternity leave it shall:
i.
recognise the status of parties to a Civil
Union; and
ii.
not discriminate against the rights of
commissioning parents who have entered into a surrogacy agreement.
c.
The respondent is ordered to pay the
applicant an amount equivalent to two months’ salary
d.
The respondent is ordered to pay the
applicants costs.
D
H Gush
Judge
of the labour Court of South Africa
APPEARANCES
FOR THE APPLICANT: Adv Linscott
Instructed by ENS Attorneys
FOR THE FIRST RESPONDENT: Adv M Zulu
Instructed
by Ngcube Inc Attorneys
[1]
Act 55 of 1998
[2]
Act 17 of 2006
[3]
Act 38 of 2005
[4]
Act 75 of 1997
[5]
Pleadings pages 9-10 paras 3.3 and 3.4
[6]
1996
[7]
Section 9