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                             Unfair Discrimination – Pregnancy

Section 9(3) and (4) of the Constitution of South Africa prohibits any person to discriminate against any other person. This means that every person has a constitutional right not to be discriminated against. Section 187(e) of the Labour Relations Act [LRA] as well as the Employment Equity Act [EEA] in section 6, prohibits unfair discrimination. One can distinguish between direct and indirect discrimination. Direct discrimination is intentional and means that an adverse action is taken against a person because the posses a specific characteristic as listed in section 9(3) and (4). For example: The lady applying for the position is pregnant, therefore she is not appointed.

Indirect discrimination is when seemingly objectives are placed to exclude certain groups of persons. For example: Only people who studied at the University of Pretoria between 1984 and 1990 will qualify for an interview. It is important to remember that indirect discrimination may be intentional or unintentional.[1] The employer’s motive has no bearing on whether indirect discrimination has taken place, and the employee needs not to prove that he has been prejudiced or suffered loss.[2]

Not all employers will jump of joy when they are informed by an employee that she is pregnant. Most probably the employer will have a negative reaction. Despite the employers feelings, an employee is in entitled to 4 (four) months unpaid maternity leave as stated in section 25 of the Basic Conditions of Employment Act (BCEA). The maternity leave may be taken at any time from 4 (four) weeks prior to the expected date of birth of the child (unless a medical practitioner or a midwife advices otherwise) and she may not return to work for 6 (six) weeks after the birth of her child, unless (same as above, unless a medical practitioner or a midwife advices otherwise).

A pregnant lady can claim UIF maternity benefits from the Department of Labour and she can submit her claim forms at least 8 (eight) weeks prior to commencing her maternity leave. If an employee is discriminated against, because of her pregnancy, this type of discrimination will fall under automatically unfair discrimination [sec 187(e) of the LRA] and the employee can get up to 24 (twenty four) months’ salary.

In Wallace v Du Toit [2006] 8 BLLR 757 (LC) the applicant was appointed as an au pair to care for her employer’s two young children. After two years, the applicant fell pregnant, and her employment was terminated. The applicant claimed that he had made it clear at the pre-employment interview that the applicant would no longer qualify for employment if she had children of her own, as her loyalties to his own children would be divided, and that the employment relationship had lapsed by virtue of a “resolutive condition” having been satisfied. The applicant admitted that she and the respondent had discussed her marital status before she commenced employment, but denied that she had been told that being childless was a condition of employment. The applicant sought compensation under the Labour Relations Act (“LRA”) for what she claimed was an automatically unfair dismissal and damages under the Employment Equity Act.

I am satisfied that a dismissal as defined in section 186(1)(a) of the Labour Relations Act has been proven and that the reason for the dismissal related to the applicant’s pregnancy. The evidence made this plain and it was agreed as one of the common cause facts in the pre-trial minute.  It follows that such a dismissal is automatically unfair in terms of section 187(1)(e) of the LRA. The respondent’s justification that this was an inherent requirement of the job, even if it was sustainable, which in my view it is not, cannot in law provide a legal justification. The section is clear. A dismissal where the reason is related to the pregnancy of the employee is automatically unfair and cannot be justified.

It is plain that there has also been unfair discrimination in terms of section 6(1) of the Employment Equity Act since it certainly cannot be said that there is an inherent requirement of the job of an au pair that the incumbent must not be pregnant nor a parent. This is the kind of generalisation or stereotyping that evidences the unfairness of the discrimination. The focus must be on whether the impact of the discrimination was unfair

I consider that an amount of R25 000 would constitute fair solatium damages for the impairment of the applicant’s dignity and self-esteem flowing from the discrimination on the grounds of her pregnancy. The figure is also intended to be punitive To the figure of R25 000 must be added compensation for the patrimonial loss suffered by the applicant. The applicant has been out of employment since March 2005, some 12 months, and presumably could have continued working until she gave birth or shortly before she gave birth in May of 2005, when, had she been registered with UIF, could have received a portion of her pay while on maternity leave and then returned to work. A total amount of R71 500 was awarded to the employee.

Employers, be very careful with your pregnant employees

[1] Association of Professional Teachers & another v Minister of Education & others (1995) 16 ILJ 1048 (IC).

[2] Leonard Dingler Employee Representative Council & others v Leonard Dingler (Pty) Ltd & others (1998) 19 ILJ 285 (LC).


 

What does POPI compliance mean?

By Jan du Toit

 

Latest developments – Registration of Information Officers:

 

On 17 May 2021 the Information Regulator’s long awaited online portal went live for the registration of Information and Deputy Information Officers.

 

The Information Officer of a Responsible Party is the person at the head of your company (CEO or MD) or any person acting in such capacity, or specifically appointed by the MD or CEO to be the Information Officer. Registration must be completed before the end for June 2021.

 

The address for the portal is  https://justice.gov.za/inforeg/portal.html   

 

The following information is required to successfully register: 

  • Company name.

  • Company registration number.

  • Company type.

  • Company physical and postal addresses.

  • Company telephone and fax numbers.

  • Information Officer gender, nationality, full name and surname, ID or passport number.

  • Deputy Information Officers same details as per above.

 

POPIA Compliance – what must be done?

With a little more than a month left before POPI becomes fully effective, many employers may find themselves out of time to become fully compliant to amongst other considerations, the 8 processing conditions prescribed in the Protection of Personal Information Act.

 

To be considered compliant the following must be considered and applied in the business of a Responsible Party before 1 July 2021. 

  1. POPI training / awareness sessions for the CEO / MD, managers and others tasked with the company’s POPI compliance project. Have a look on our website for the next POPIA training dates.

  2. Compliance audit to be conducted company-wide per department / division to determine the current processing practices within the organization and to establish what needs to be done to be compliant.

  3. Correction of contraventions as identified, and to introduce reasonable technical and organizational measures to prevent the loss or unauthorized access of Personal Information.

  4. Introduction of Data Subject rights and consent in the business through policies and consent clauses / paragraphs / contracts.

  5. The introduction of a PAIA manual (Promotion of Access to Information Act) that incorporates data subject rights and participation in terms of POPIA. This manual must be published on one of the company’s websites. It is also important to note that the current exemption granted by the Minister of Justice for some business to not have such a manual in place currently, expires at the end of June 2021.

  6. General staff POPI policy and legislation awareness training.

  7. Registration of the company’s Information Officer (the CEO, MD or any person acting in such position).

  8. Follow-up assessment on compliance measures and adherence thereto.

 

It is important to note that no institution, not even the Information Regulator, can “accredit” any Responsible Party in South Africa to be compliant in terms of legislation. Compliance (or otherwise) will only be determined should an investigation be launched by the Information Regulator following a complaint. Should such an investigation confirm a lack of compliance, consequences such an administrative fine not exceeding R10m may follow (which one may luckily pay off in instalments). Further to this those whose rights are infringed upon by a Responsible Party not adhering to the requirements of POPIA, may also institute civil proceedings. Such  proceedings may result in compensation being awarded for loss, as well as aggravated damages determined at the discretion of the court.

 

In terms of section 19 of the Act, the Responsible Party (business owner / employer) is required to introduce reasonable organizational and technical measures to secure the integrity and confidentiality of Personal Information. The organizational measures referred  to above includes inter alia both internal and external policies to introduce the principle of protection of personal information in the workplace, as well as the rights of data subjects.

 

To allow you more time to focus on your business, the author of this article compiled a bundle of detailed policies for your business, ready to use. This includes all relevant forms to be used and a template document with draft consent clauses / paragraphs / rules  to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages, and Independent Contractor agreements.

 

Also included is an Operator Agreement as required in terms of section 21 of the Act and a consent letter for existing clients / service providers, to agree to the continued processing of their Personal Information beyond June 2021.

 

The policies bundle includes: 

  • Privacy notice template to be published on your website.

  • Personal information protection policy.

  • Personal information retention policy.

  • Data breach policy.

  • Data breach register - form.

  • Data breach report - form.

  • Data security policy.

  • Data subject access request policy and procedures.

  • Data subject access request forms.

  • Processing agreement with third parties as Operators - contract.

  • Data subject participation - draft consent paragraphs / clauses to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages and Independent Contractor agreements

  • Guidelines on the appointment of deputy information officers, inclusive of appointment letter.

 

For only R3750 you can now order you set of POPI policies, ready to use. Contact Jan du Toit for further assistance at [email protected]

 

 

 

 

 

 

 

 

Courses and Workshops

 

                   

Strategic Human Resources Management (HRM) and - Business Partnering

27, 28 & 29 October 2021 (08:30 - 16:00)

Interactive Online Course

Employment Equity Committee Training

27 October 2021 (09:00 - 16:00)

Interactive Online Course

Health and Safety Representative and Committee Training Course

28 October 2021 (08:30 - 16:00)

Interactive Online Course

Managing Day to Day Issues/ Problem Employees Full day workshop

28 October 2021 (09:00 - 16:00)

Interactive Online Course

Managing Poor Performance/ Incapacity

29 October 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

19 November 2021 (09:00 - 12:00)

Interactive Online Course

Management and Leadership Skills

10, 11 & 12 November 2021 (08:30 - 16:00)

Interactive Online Course

Basic Labour Relations

12 November 2021 (09:00 - 16:00)

Interactive Online Course

The OHS Act and the Responsibilities of Management

18 November 2021 (08:30 – 16:00)

Interactive Online Course

AARTO and the Impact on Your Business

19 November 2021 (09:00 - 12:00)

Interactive Online Course

Compensation for Occupational Injuries and Diseases Course

25 November 2021 (08:30 - 16:00)

Interactive Online Course

POPIA: Protection of Personal Information Act

26 November 2021 (09:00 - 12:00)

Interactive Online Course

 

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