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On Monday 24th January, the Star Newspaper in Johannesburg published an article on the front page headed " Working moms get a raw deal." This article dealt with the question of employees, having been on maternity leave to attend to the joyous event of an addition to the family, return to work only to find that they have been dismissed.
The article evoked countrywide interest, and the subject matter was also dealt with on the radio during a 30 minute programme with SAFm and also with Radio Sonder Grense. The newspaper article and the radio programmes in fact only scratched the surface of these issues concerning pregnancy and the employer, what is fair and what is not fair, and what is allowed and what is not allowed. We consider that this issue is of such importance that we will be dealing with it in greater depth in this and forthcoming weekly articles. The first thing that employers need to understand is that no person may be discriminated against or dismissed on account of pregnancy.
This is stated in paragraph 4.2 of the Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of Her Child. It must be pointed out here that the Code states clearly " no person", which would seem to imply that even the father of the child may not be unfairly discriminated against on grounds of the pregnancy of his wife or life partner. This barrier against unfair discrimination is entrenched in the Constitution, in section 9 (3) and (4). Firstly therefore it is a Constitutional right.
The prohibition against unfair discrimination is also entrenched in the Labour Relations Act in section the 187 (e), and in the Employment Equity Act, section 6. So employers face the big guns here on this issue. They are faced not only with the might of the Constitution,but also with the full force of two Acts of Parliament, namely the Labour Relations Act and the Employment Equity Act. From this employers would deduce that this is not a matter to be trifled with, and pregnant employees, all employees on maternity leave, the baby itself, and (it would seem) the fathers, all have rights bestowed upon them by legislation.
Employers would be wise to note that many of the rights bestowed upon the employee places a corresponding duty or legal obligation upon the employer. The rights of employees thus cannot be ignored. The Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of the Child refers to section 26 (1) of the Basic Conditions of Employment Act, which in turn protects breast-feeding mothers upon their return to work.
In terms of paragraph 4.3 of the Code of Good Practice, employers are required to provide and maintain a work environment that is safe and without risk to the health of employees. The Code states that this includes risks to the reproductive health of employees, and in this connection the Occupational Health and Safety Act 85 of 1993 also comes into play, and employers have a duty to familiarise themselves with that Act as well.
It is in the interests of the employer to study and thoroughly familiarise himself with the requirements of the Code of Good Practice if the employer wishes to avoid what might prove to be rather expensive litigation at a later stage. As far as pregnant and breast-feeding employees are concerned, the Code of Good Practice lays down very specific requirements in section 5, requiring the employer to act in terms of the identification and assessment of risks, and implementing appropriate action to avoid any risks to the health of the employee or the unborn child, or risks to the breast-feeding child.
The Code of Good Practice deals separately with hazards classed as ergonomic, chemical, and biological, and in section 7 it deals quite extensively with aspects of pregnancy that may affect work. The section addresses such issues as morning sickness, backache and varicose veins, the employee requiring more frequent visits to the toilet, the increasing size and discomfort of the employee as the period of pregnancy progresses, even addressing issues such as the employees sense of balance becoming affected if she is required to work or walk on slippery or wet surfaces in the workplace.
The section also addresses issues of tiredness associated with pregnancy. It is considered (and indeed, a legislative requirement) that all employers study and thoroughly familiarise themselves with the contents of this Code of Good Practice, because compliance or noncompliance may well prove to be the deciding factor on whether prolonged and expensive CCMA or Labour Court proceedings must be faced or not.
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