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Ivan lsraelstam
We are still receiving complaints from employees that they are losing their jobs because they are pregnant. This is despite previous articles written by us warning employers that Labour legislation provides substantial protections for pregnant employees. The Constitution of South Africa, the Employment Equity Act (EEA), the Unemployment Insurance Act, (UIA), the Basic Conditions of Employment Act (BCEA), the Labour Relations Act (LRA) and the Code of Good Practice on the Protection of Employees During Pregnancy and After the Birth of a Child together provide a far reaching and comprehensive set of rights for pregnant employees. These rights cover the employee from the day she falls pregnant until well after the birth of the child.
The Constitution of SA
Sections 9(3) and 9(4) of the Constitution of SA provide that no person may be discriminated against or dismissed on account of pregnancy.
The EEA
Section 6 of the EEA reiterates the Constitution's prohibition against discrimination on the grounds of pregnancy.
The LRA
Section 187(1)(e) of the LRA prohibits the dismissal of an employee for any reason related to her pregnancy. In fact, this section makes such a dismissal automatically unfair. This effectively means that such a dismissal:
- breaches a basic right of the employee and
- can never be justifiable and
- merits compensation to be paid by the employer up to an amount equivalent of 24 months' remuneration.
In practice this means that a pregnant employee or one on with a new born baby has an inherent right to her job provided that:
- She behaves and works according to the employer's standards
- She has not been so incapacitated due to illness or injury that she is unable to do her duties
- Retrenchment is not justified.
Therefore, should the employer fire the employee due to pregnancy or should the employer wish to use the pregnancy as an excuse for getting rid of the employee the courts will be most likely to come down very hard on the employer. Two recent cases prove this point.
In the case of Mnguni vs Gumbi (2004 6 BLLR 558) the receptionist in medical practice claimed that she was dismissed because she complained that she felt tired while she was in the advanced stages of pregnancy. The employer claimed that the employee had not been dismissed but only sent home. However, the Labour Court found that:
- The employer had employed a new receptionist the very next day
- The employer had not called on the employee to return to work when the opportunity arose
- This suggested that the applicant had in fact been fired
- The dismissal was automatically unfair
- The employer had to pay the employee 24 months' remuneration in compensation.
In the case of Lukie vs Rural Alliance cc (2004 8 BLLR 769) the employee was dismissed when she told her employer that, due to her pregnancy she needed maternity leave. Initially her manager had agreed to the maternity leave but he later changed his mind and told her that she need not return to work after her maternity leave. As with the Mnguni case the employer denied that the employee had been dismissed saying that the employee had left the employment of her own accord.
Neither the employee nor the manager had any corroborating evidence and the court had to consider which of their testimonies was most probable. The manager had testified to a meeting where he discussed the employer's operational requirements with the employee. But the employee denied that such a meeting had taken place. Because the manager's testimony regarding the alleged meeting was vague and contradictory the Court accepted the employee's version. Also, the employer had not denied dismissing the employee when challenged with this by a Department of Labour official.
The Court therefore found that there was a dismissal, that it was automatically unfair and ordered the employer to pay the employee 18 months' remuneration. The employer was also required to pay the employee's legal costs. These cases suggest that even where evidence of dismissal is not clear, if there is any evidence of an employee being dismissed due to pregnancy, employers cannot expect mercy from the courts. Therefore, where such dismissals are contemplated advice from a reputable labour law expert should be sought.
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