Section 25A of the BCEA entitles an employee who is a parent to 10 days parental leave when the child is born. And section 25 entitles an employee to 4 months maternity leave. Does this mean that an employee who is pregnant or who has just given birth is entitled to a total of 4 months plus 10 days leave? Or would these two periods run concurrently?
No – a mother is not entitled to both 4 months maternity leave and 10 days parental leave.
The BCEA is silent on this point. But there’s an existing principle in the BCEA to the effect that two types of leave must not run concurrently: For example, Section 5(a) says annual leave and notice periods may not run concurrently with any other periods of leave or during a notice period.
And there’s another general principle which applies a “purposive” interpretation for ambiguous or conflicting legal language and provisions.
The purpose of maternity leave is to provide time off work for a mother before, during and after the birth. The longer 4-month period aligns with this purpose.
The purpose of parental leave is to provide time off for a parent on the birth of a child. The purpose of “parent” means someone other than the mother – such as a father, spouse, relative etc. And the shorter 10 day period aligns with this purpose.