Is Unpaid Maternity Leave Unpaid

The recent judgment of Phehane J in Bumbana Mining (Pty) Ltd v SALU offers a timely and important clarification on the legal position relating to maternity leave and the payment of benefits. The dispute, while seemingly narrow, touches on a broader and often misunderstood issue in the workplace: whether so-called “benefits” such as housing and medical allowances can be claimed independently of salary during periods of unpaid leave.

2026/04

By Jan du Toit – Director at Labour Guide

The legal framework governing maternity leave in South Africa is primarily derived from section 25 of the Basic Conditions of Employment Act 75 of 1997, now referred to as parental leave. The provision entitles employees to up to four consecutive months and 10 days unpaid parental leave. In practice parental leave is unpaid unless an employer elects, through policy, contract, or collective agreement, to provide paid leave or partial benefits. Many employers, particularly in sectors with tight operational and cost constraints such as mining, adhere strictly to the statutory minimum.

It is against this background that the dispute arose. Bumbana Mining (Pty) Ltd, an opencast coal mining operation employing approximately 340 employees, had in place clear and unambiguous policies as well as contractual terms stipulating that employees are remunerated only for hours actually worked and that maternity leave is unpaid. These provisions were aligned not only with the BCEA but also with a collective agreement concluded with the representative union, South African Labour Union (“SALU”), which expressly incorporated the statutory framework.

The employee at the centre of the dispute, Ms Thandeka Msomi, took maternity leave for a four-month period between November 2022 and March 2023. During this time, she did not receive any remuneration from her employer, including housing and medical allowances that ordinarily formed part of her monthly earnings package. Dissatisfied with this, SALU referred an unfair labour practice dispute to the Commission for Conciliation, Mediation and Arbitration, contending that the withholding of these allowances, despite the absence of salary, constituted unfair conduct relating to benefits as contemplated in section 186(2)(a) of the Labour Relations Act 66 of 1995.

The arbitrator accepted this argument and drew a distinction between “remuneration” in the narrow sense of salary or wages, and “benefits” such as allowances. On this reasoning, the arbitrator concluded that although the employee was not entitled to salary during unpaid maternity leave, she remained entitled to certain benefits. An award was accordingly issued directing the employer to compensate her for the withheld allowances.

This approach, however, did not withstand scrutiny on review. The Labour Court was required to apply the well-established test under section 145 of the LRA, as developed in cases such as Sidumo, Herholdt, Gold Fields and Mofokeng, namely whether the arbitrator’s decision fell within the band of decisions that a reasonable decision-maker could reach on the available evidence.

A striking feature of the case was the manner in which the arbitration itself had been conducted. The union representative failed to lead evidence in chief from the employee, with her version emerging only under cross-examination. In that process, she made a number of material concessions which significantly undermined her case. She accepted that the contractual provisions limiting remuneration to hours worked were correct, that the company’s maternity leave policy provided for unpaid leave, and that she was not entitled to remuneration during that period. Importantly, she also conceded that remuneration is a composite concept encompassing all forms of payment, and that she had recourse to maternity benefits through the Unemployment Insurance Fund.

Despite this, the arbitrator persisted with a line of reasoning that treated benefits as severable from remuneration. The Labour Court found this to be a fundamental misdirection. Relying on the Labour Appeal Court’s decision in Apollo Tyres South Africa (Pty) Ltd v CCMA, the Court reaffirmed that remuneration includes wages, salaries and benefits, and that any attempt to artificially distinguish between these components is legally unsustainable. Benefits do not exist in isolation; they are part and parcel of the overall remuneration package.

The Court was also critical of the arbitrator’s failure to engage with material evidence. The employer’s uncontested evidence was that its practice had always been not to pay any form of remuneration, including allowances, during periods of unpaid maternity leave. This was consistent with its policies, contractual terms, and the applicable collective agreement. The arbitrator further ignored the employee’s own concessions, which effectively negated the basis of the claim. In doing so, the arbitrator misconceived the nature of the enquiry and failed to apply binding legal principles.

In the result, the Court concluded that the award was not merely incorrect, but unreasonable in the sense contemplated by the review standard. The defects in the reasoning constituted gross irregularities justifying judicial intervention. The arbitration award was accordingly reviewed and set aside, and substituted with an order dismissing the unfair labour practice claim. The Court also noted that SALU’s opposition in the review proceedings was procedurally defective and of no assistance.

The judgment carries significant implications for both employers and employees. It confirms that where maternity leave (now parental leave) is expressly unpaid, the suspension of remuneration extends to all components of the remuneration package, including allowances and benefits. It also reinforces the principle that legal claims relating to benefits must be grounded in a proper understanding of remuneration as a unified concept. Attempts to isolate and claim individual components in the absence of an underlying entitlement to remuneration are unlikely to succeed.

From a practical perspective, the case underscores the importance of clear and carefully drafted employment contracts, policies, and collective agreements. Employers who articulate their position unambiguously and apply it consistently place themselves in a strong position to defend disputes of this nature.

Ultimately, Bumbana Mining (Pty) Ltd v SALU reaffirms a straightforward principle that where there is no entitlement to remuneration, there can be no entitlement to benefits.

This article does not constitute legal advice. For an informed opinion and/or assistance with a labour-related matter, you are encouraged to arrange a formal consultation with the author.

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