The Constitution contains equality provisions, which enshrines the right of everyone to equal protection and benefit of the law, and to the full and equal enjoyment of all rights and freedoms. It also ensures everyone the right to fair labour practices. These rights were give effect in all new labour legislation.
Your entitlement to maternity leave
The Basic Conditions of Employment Act, 1997 lays down certain minimum standards that a contract of employment must comply with. It also imposes a statutory duty on an employer to provide leave. An employer is thus compelled by law to provide for maternity leave in its contract of employment. You must however notify the employer in writing when the intended maternity leave will commence and when you intend to resume work.
Section 25 of this Act provides that you are entitled to at least four consecutive months’ maternity leave, which may commence at any time from four weeks before the expected date of birth. When a midwife or medical practitioner however certifies that it is necessary to commence with leave by reason of your health or that of your unborn child, this period may exceed the four months. You and your employer may also agree upon another period.
The Act provides that no employee may be expected to work for the first six weeks after the birth of her baby. A medical practitioner or midwife may however certify that you are fit to work, in which case you may resume work if you so wishes.
Paid or Unpaid maternity leave?
The Act does not require that maternity leave should be paid and the employer is not under an obligation to provide for paid maternity leave. Some employers do however provide for paid maternity leave in that the contract of employment makes provision for an amount of days or weeks that will be paid. It is thus important to thoroughly read your contract of employment, in order to know what rights to paid maternity leave you will have during employment at your specific employer. If your employer does not make provision for paid maternity leave, there do exist the possibility to make a claim in terms of the Unemployment Insurance Act, 1966.
Dismissal by reason of pregnancy
Section 186 of the Labour Relations Act, 1995 gives meaning to dismissal in that it lists a few circumstances in which conduct of the employer will be regarded as dismissal. Remember that you must be an employee to fall within the ambit of the Act. These provisions will unfortunately not protect women who are employed as independent contractors, because the Act is only applicable to employees.
The legislator has included the failure to allow an employee to resume work after she has been on maternity leave into the definition of dismissal. This was not always the case. It reflects the positive attitude of parliament towards women and the importance given to women and children in the new South African democracy.
The meaning of dismissal
Section 186(c) states that dismissal means that an employer refused to allow an employee to resume work after she took maternity leave in terms of any law, collective agreement or her contract of employment. This section refers to situations where you as an employee for example were entitled to maternity leave, and after being on maternity leave, the employer now refuses to allow you to resume employment. It makes no difference whether it was paid or unpaid maternity leave. Conduct of this kind will be regarded as dismissal.
Automatically unfair dismissals
In case of unfair dismissal, you can take the matter to the CCMA. When the CCMA considers a matter, it will always ask the following three questions:
- Are you an employee?
- Does the conduct of the employer amount to dismissal?
- Is the dismissal unfair?
As discussed above, an employer who refuses to allow you to resume work after you took maternity leave is in fact dismissing you. The first and second question would thus be answered in the affirmative. The dismissal must always be unfair. Section 187(1)(e) of the Labour Relations Act is thus also relevant to you, because it states that dismissal by reason of an employee’s pregnancy, intended pregnancy, or any reason related to your pregnancy would amount to an automatically unfair dismissal. For public policy reasons, an employer can never raise a defence that will succeed in the case of automatically unfair dismissals.
You can also be constructively dismissed on the grounds of pregnancy and this will also constitute an automatically unfair dismissal. Constructive dismissal is when your employer does not actually dismiss you by firing you, but through his actions your job itself becomes intolerable to you. It is not the relationship with your employer that must become intolerable, but your job in itself. Proof of intention on the part of your employer is not necessary to establish constructive dismissal, but if there was intention it makes it easier to establish.
If the employee for example, reduces your salary with a considerable amount and also changes your job description when he is informed of your pregnancy, it can be grounds to argue constructive dismissal. Even if you in fact resigned as a result thereof, you can claim constructive dismissal. It is however important to remember you would have to prove dismissal. All that the employer would have to do is to produce evidence sufficient to raise some doubt about the reason for the dismissal. It would then be up to you to prove that the dismissal was because of your pregnancy. It is also important to point out that, unlike other forms of discrimination, the employer may not justify the discrimination with reference to the inherent requirements of the job. This means that the employer may not dismiss you and argue that due to some requirements that your job demand of you, you would not be able to do is because of your pregnancy. It is not allowed and will be seen as an automatically unfair dismissal according to which you can sue you employer.
What to do in such a case
If your employer dismissed you because of your pregnancy, you can refer the dispute to the CCMA (Commission for Conciliation, Mediation and Arbitration) within 30 days of the dismissal to decide on the matter. This referral must be in writing and served upon the employer. It is important to refer the matter to the CCMA within this 30-day period, as late referral will necessitate condonation. You will have to apply for condonation, which will only be granted “on good cause shown.” Whether you can prove good cause, will depend on all the facts including the degree of lateness, the explanation therefore, the prospects of success and the importance of your case. You will thus run the risk that your application might be denied.
What to prove in case of dismissal
Before the enactment of the Labour Relations Act, there was no statutory protection against the dismissal of a pregnant employee. You may now not be dismissed because you are pregnant, intend to become pregnant, or for any other reason related to your pregnancy. If you allege that you were automatically unfairly dismissed, you must prove the following in order to succeed with your claim:
- That you are an employee and not an independent contractor as only employees is protected under the Labour Relations Act;
- That you were dismissed by the employer;
- That the reason for your dismissal were discrimination by the employer;
- That the discrimination was based on you being pregnant or your intention to become pregnant;
- That the discrimination was also unfair.
If you can prove the above criteria, you will succeed with your claim for automatically unfair dismissal. The employer will not be allowed to claim that the dismissal was based on inherent requirements of the job and thus not unfair. The employer will have no defence against this claim.
By Adv. Marilize Nagtegaal for Her Law
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