Leave entitlement of new parents in the workplace

Abstract

The mini dissertation investigates the leave that new parents are entitled to in the workplace following the groundbreaking judgment in October 2023 in the Gauteng High Court in Van Wyk v The Minister of Employment and Labour.1 The Court found that the Basic Conditions of Employment Act's2 parental leave regulations violate sections 9 and 10 of the Constitution because they unfairly discriminate against fathers and mothers as well as between other parents based on whether the child was adopted, conceived through surrogacy, or born to the mother. The dissertation will further analyze closely the rights of different categories of parents and their leave entitlement before the Van Wyk’s matter, the rights of children to have both parents taking care of them, and the benefits that come with such parental leave after the birth of a child, as opposed to one parent being the only caregiver that the child will have at that early stage of their lives. The concept of the ‘best interest of the child’ as referred to in the matter of MIA v State Information Technology Agency (Pty) Ltd3 will also be explored. The investigation will include a comparative study of other countries as far as parental benefits are concerned.