Firstly, let me introduce myself. My name is Seranne Junner-Beale. I am an Attorney in private practice, having been admitted to practice in the Courts of Botswana in 2009. More importantly however, I am a wife, and a Mom to two Jack Russel’s’ and one very rambunctious toddler, Christian who is simply the light of not just mine but my entire family’s life!
The nature of my profession does not unfortunately lend itself to part time and so I am a full-time working Mom which can be a rather strenuous juggling act at times but I make it work. Have I gone to Court with a little bit of spit up on my suit? Yes probably. Thankfully though the long flowing Harry Potter type gowns are adept at hiding a multitude of sins!
I remember when I first started practicing and working full time. A few months in I was reminiscing about those long University vacations of three months at a time. Gone were those days forever, and it occurred to me that the next time I would have such a long period of “leave” would be at the time I was able to take maternity leave. As it turns out maternity leave was not quite akin to a Varsity holiday…granted there was plenty of drinking involved, but it was my baby doing the shots (of milk) rather than me!
Long story short I am here to give you the inside scoop on the Law in this Jurisdiction pertaining to maternity leave. I hope to be able to give you the answers to the common questions surrounding that area to help you ensure that you are able to properly utilise and benefit from what you are legally entitled to.
The Employment Act and the Employment Amendment Act
So let’s get into the nitty gritty and I will try my level best not to bore you with too much legal jargon. The starting point is an examination of the Employment Act read together with the Employment Amendment Act. The Employment Act is the statute in force in Botswana that governs and makes provision for the law related to employment and matters incidental thereto including maternity leave.
Part XII of the Employment Act specifically deals with the employment of female employees and the applicable sections for the purpose of dealing with maternity leave are sections 112 – 117.
First and foremost it is vital to note that the entitlement to and benefits that flow from maternity leave and allowance are applicable to every female employee. That means that citizenship or nationality is not a factor. You simply have to be female and be a lawful employee. It does not matter whether you are a citizen or whether you are working by virtue of a work permit so long as you are working lawfully you are entitled to benefit.
There is no requirement in law that you have to have worked for an employer for any designated period of time in order to qualify for maternity leave and pay. Furthermore, there is no requirement that you contribute to any sort of scheme in order to be eligible for maternity leave and pay.
How Much Do I Get Paid on Maternity Leave?
Lets call a spade a spade…everyone is mostly concerned with the following:
How long do I get off and how much do I get paid while I am off. Well the simple answer is this:
12 weeks in total and at 50% of your basic and benefits (i.e medical aid, cellphone allowance) for the duration of the 12 week period.
Before the Employment Act was amended in 2010 a female employee was only entitled to receive 25% of her basic pay and entirely exclusive of benefits for the duration of maternity leave. Thankfully however, apart from the South Africa hosting the 2010 world cup (AYOBA) in 2010, another great thing, specifically for women employed in Botswana, happened that year. Our employment Act was amended to increase the amount payable to the 50% of the basic pay and benefits that it is today!
In the event that you have more than one job, in other words two separate employers you are only entitled to one maternity allowance. Alas no doubling up even if you have twins! The maternity allowance shall be paid by the employer with whom you have had the longer standing relationship. This is in basic accordance with the first in time first in law principle.
Job Protection for Expecting And New Mothers
The Botswana Employment Act goes further to protect expecting and new mothers and is a rather progressive and admirable piece of legislation in that respect. Sections 115 and 116 of the Act in very simple terms endeavours to protect a female employee from an employer who may seek to circumnavigate the obligation to pay maternity allowance by terminating a female employee’s contract of employment within certain timeframes.
If an employer seeks to terminate a pregnant female employee’s employment without good cause (i.e. without a proper lawful and good substantive reason) within a period of three months immediately before the delivery of her child that employer shall still be obligated to pay the employee the full benefits she is entitled to in respect of maternity pay.
Furthermore, no employer is permitted to give a female employee who is on lawful maternity leave notice of termination of her employment during the period of her maternity leave. If an employer contravenes this provision then that employer would be liable to either a fine not exceeding P1, 500.00 or a term of imprisonment not exceeding 12 months or both! I don’t know about you but I think I would opt for the fine rather than 12 months in maximum security prison!!
Your Part Of The Deal
Ok so that is a brief overview of maternity leave and payment and the obligations on an employer. However as with most things in life you as the female employee have certain obligations to meet under the Act. Those are when and how you properly notify your employer of your pending birth and the documents it is necessary for you to furnish to your employer.
In terms of section 113 of the Act a female employee is obligated to notify her employer of her confinement (in layman’s terms that means the delivery date) within six (6) weeks of the confinement (i.e. within six weeks of your due date). That notice is to be by way of a written certificate from either a registered Doctor or Midwife that basically confirms in writing that your due date is in six weeks’ time. Once your baby, within twenty-one (21) days after the birth has been born you are required to furnish you employer with another certificate signed by a registered Doctor or midwife certifying the date the baby was born.
Timeframes for Maternity Leave in Botswana
Now we need to talk about the timeframes the Act has in place for when maternity leave kicks in and when it concludes. In terms of the strict reading of section 113 of the Act, maternity leave is meant to commence six weeks before your due date and last for six weeks after the baby has been born, i.e. twelve (12) weeks in total. In the event that you have an illness arising out of or as a consequence of the birth of the baby then the Act provides for an additional two (2) week period of paid maternity leave over and above the six week post birth period. You would however have to provide a medical certificate certifying that there is a legitimate medical condition in that respect.
So as I have hopefully clearly explained above your maternity leave is technically meant to commence as soon as you notify your employer of your due date as explained above.
Now I know pregnancy toward the end can be a rather uncomfortable state more especially if you happen to be in the unfortunate situation of it being in the middle of one of hottest times of the year. However, I know it is a very common desire for a woman to want to rather work as close up to her due date as possible so that she can save up the maternity leave for additional time with the baby after he or she is born. I certainly know that is how I felt.
Unfortunately, if your employer insists on following and complying strictly with the provisions of the Employment Act then you may have no choice but to take the six weeks leading up to the birth and the first six week after the birth off thereby having to return to work when your baby is a mere six weeks old. That is the employer’s prerogative and if they insist then the law is on their side.
Talk It Over With Your Employer
However, I would advise you to sit down with your employer way before the six weeks until your due date period and have frank and full discussion with them regarding your pregnancy, birth and your views on the time frames regarding your maternity leave. If your employer is willing then there is absolutely nothing to stop the two of you from agreeing that you will up to a week before your due date for instance and therefore have 11 weeks after the birth of the baby before you are lawfully required to return to work.
That is exactly what I did. When I was about 5 months pregnant I sat down with the partners of my Firm, who to my eternal luck happen to be two women who both have children of their own and were so understanding and accommodating throughout my pregnancy and have continued to be so as I have embarked on motherhood and full-time work. You stand to lose nothing by seeking to negotiate more favourable timings in respect of your maternity leave directly with your employer so give it your best shot.
Payment By Instalments
Lastly it is important to explain that in terms of section 114 of the Act the pay that the employee is entitled to during the period of maternity leave may be paid in instalments by the employer as follows:
- For the first part of the maternity leave (the period before the baby is born) and up to the date the baby is born, the amount payable shall be paid within 48 hours of the employee delivering the medical certificate to her employer confirming the date of the baby’s birth.
- For the second part of the maternity leave (the period after the baby is born up to the time that you are required to lawfully return to work) the amount payable shall be paid on your return to work;
- In the unfortunate event that you have an illness arising from the birth that has caused you to be entitled to the additional two week period of maternity leave then your payment in respect of that period shall be paid within 48 hours of your return to work.
Once again if you are unhappy with the instalment nature of maternity leave payment then there is nothing stopping you and your employer from agreeing by mutual consent to a different arrangement. For instance I continued to be paid monthly rather than having it paid in staggered amounts. However, if your employer insists on abiding by the strict terms of the Employment Act then there is nothing you can do from a legal perspective.
I know people say Lawyers love the sound of their own voices so I think that is enough from me for one day. I hope that the above is straight forward and understandable so that you can apply it easily to your own life and circumstances. If you want to know a working Mother’s legal right to Breastfeed have a read here.
- A Working Mothers Right To Breastfeed Her Baby - 29/01/2018
- Botswana and Maternity Leave: What you need to know - 18/09/2017