PREGNANCY AND THE EMPLOYER.

The day comes when an employee, all bubbly and filled with excitement,  approaches the boss and happily announces: 

 "I am pregnant. I will be requiring maternity leave, probably from 1st August ." 

Expecting to be congratulated, perhaps even given a hug, the employee is flabbergasted when the boss raises his eyebrows, glares at her, and remarks " why must you now  go and get pregnant?” or even "what do you want to get pregnant for?  Are you mad?” 

The employee, completely taken aback and totally deflated,  quietly mumbles  "well, I just thought I would let you know."  

The boss reacts with "yes,  well - we will see about this maternity leave thing later" and dismisses the matter with a flourish of his gold plated, top of the range ball point pen (Christmas present from his wife – or was it his Secretary ?)   

In all probability, the employee, now very worried and upset because the reaction from her boss seems to indicate that she has committed some sort of capital crime, punishable by death followed by banishment to some (as yet) undiscovered  Greek island in the middle of nowhere, jumps onto the Internet and sends me an e-mail asking me to please explain what her rights are in terms of maternity leave and job security. She also requires this information in order to educate her boss, who hasn't a clue what the provisions are in the Basic Conditions of Employment Act. 

Well, I tell the lady (much to her relief) that she is entitled to four months unpaid maternity leave, which should commence at least four weeks prior to the expected date of birth of the child (unless her medical practitioner or midwife decrees otherwise) and that she is not permitted to return to work for six weeks after the birth of the child (again, unless decreed otherwise by her medical practitioner or midwife.) She can also claim UIF maternity benefits from the Dept of Labour, and she should submit her claim documents at least 8 weeks prior to commencing maternity leave – which makes it 3 months before the expected date of birth of the child.  

I also inform her that her job is safe, that the employer may not dismiss her for any reason in connection with pregnancy or intended pregnancy, that she is permitted to take her annual leave as part of her maternity leave in order to reduce the period of unpaid leave if she so desires, but at the same time warning her that this is not a good idea because it means she will have no annual leave available for that leave cycle, and this is especially important if the employer has a December shutdown during which all employees are expected to take annual leave. 

In addition, I inform the lady that upon her return to work, some employers have the practice of employing another person in the place of the employee who is now on maternity leave, and upon return from maternity leave the employee is graciously informed that the job that she had when she went on maternity leave it is now no longer her job (the “temp” has now been permanently appointed – in her job nogal !) , but she (the new mother ) has been given another job within the organization. 

This practice, of course, is way out of line and in terms of Labour law is prohibited.  It amounts to a unilateral change to the terms and conditions of employment of the employee who has been on maternity leave.  In other words, the employer has changed a material condition of employment without consulting with the employee, and this places the employer in breach of contract.  If one wished to stretch this to the “enth degree” it could be construed that the employer has in fact terminated the employment contract and that the employee has been unfairly dismissed, which invokes a host of a very unpleasant and probably very expensive consequences for the employer. 

Employers who make these unilateral changes – BEWARE – and read the signboard. It clearly states

 “Mine Field Ahead - Keep Out!!  Enter at your Own Risk!!.” 

However, as stated, that would be stretching things, but it does give food for thought. 

Such action by the employer is, to put it mildly, a very big “NO-NO.” 

More next week – looking at the employee’s remedies against errant employers. 

The South African Labour Guide is a private company and has no association with the Commission for Conciliation, Mediation and Arbitration (CCMA), you may find the CCMA on www.ccma.org.za