Beware the Minefield

Dismissals where pregnancy is involved or there exists a dismissal for a reason related to pregnancy – even though the child had already been born – has always been an area of very thin ice indeed.

Section 187 of the LRA lists certain types of dismissals which are classified as "automatically unfair." This section states "A dismissal is automatically unfair if …….. the reason for the dismissal is (e) the employee's pregnancy, intended pregnancy, or any reason related to pregnancy." However, the protection afforded to an employee in terms of this section does not end with the birth of the employee's child.

In De Beer v SA Export Connection CC t/a Global Paws [2008] 1 BLLR 36 (LC), the following took place :

Briefly, by prior agreement, the employee had agreed to take only one month maternity leave. The employee gave birth to twins. The mother asked the employer to extend her maternity leave by 4 weeks because the twins were suffering from colic. The employer offered to extend her maternity leave by 2 weeks – which the employee refused to accept - and at the end of that period, the employer terminated her services. The employee claimed an automatically unfair dismissal in terms of section 187 (LRA), stating that she had been dismissed for a reason related to pregnancy.

The employer contended that the wording in section 187(1)(e) "for a reason related to pregnancy" applied only to complications experienced by the mother as a result of the birth, and not to the illness of the baby. He stated further that the employee had been dismissed for being absent from work without leave. Sound logical?

The Court held a different view. The Court said that section 187 (1)(e) (LRA) must be seen as part of "social legislation aimed at protecting women and putting them on a footing equal with men." "Difficulties experienced by employers in keeping a woman's job open while she is on maternity leave is the price that must be paid for recognizing the equal status of women in the workplace. The law protects women, not only while pregnant, but also while they are attending to the consequences of pregnancies."

However, in this case the employee was not originally granted her full period of maternity leave. She was given only one month maternity leave (albeit by agreement) – whereas she is legally entitled to 4 months maternity leave. The Court pointed out that in terms of the BCEA, the employee was entitled to 4 months maternity leave – and therefore, any agreement between her and the employer for only one month maternity leave was unlawful and therefore not enforceable – simply because such an agreement contravened the BCEA.

Had she been given her full entitlement of 4 months maternity leave, this issue would never have arisen. The Court noted that the treatment meted out to the employee was "degrading and offensive", and awarded her 20 months remuneration as compensation.In addition, the employer was ordered to pay the costs of the matter.

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