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You can’t be fired for falling pregnant
Advocate Diamond Tapiwa Chadya of MIWUSA

You can’t be fired for falling pregnant

Rebecca from Zambia  is a precarious and vulnerable migrant who was employed at a retail shop in Durban. She was bubbly and filled with excitement, approached her manager that she was pregnant and would be requiring maternity leave in the near future. Expecting a bear hug and congratulatory remarks, Rebecca is astounded when the manager screwed her face and said, ‘why must you now go and get pregnant?”

Rebecca became stressed and as a MIWUSA member, she sends me a Whatsapp message asking me to please explain what her rights are in terms of maternity leave and job security. She also requires this information in order to educate her boss, who hasn’t a clue what the provisions are in the Basic Conditions of Employment Act. 

Dear Rebecca,

You are protected!

It is no secret that pregnancy in the work place is not received with all pleasantries it deserves. Rebecca and many others have been getting the raw deal in the work place. The first thing that your employer needs to understand is that you may not be discriminated against or dismissed on the fact that you are pregnant. 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.

Rebecca, it is critical to point out that the Code states clearly that “no person“, which would seem to imply that even the father of your child may not be unfairly discriminated against on the basis of your pregnancy.

Rebecca, this barrier against unfair discrimination is entrenched in the codified Constitution of South Africa in section 9 (3) and (4).

It is your Constitutional right.

Also take note that 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.

This means that your employer has to adhere to the Constitution, and also the Labour Relations Act and the Employment Equity Act as far as pregnancy is concerned.

So from the above legislation, we can deduce that employers must treat pregnancy with all the respect it deserves. Rebecca you have extra rights as you are pregnant, you also have rights when you are on maternity leave, the baby itself, and (it would seem) the father, all have rights bestowed upon them by legislation!

Your employer should 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.

In addition to the above, 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 a legislative requirement that all employers should comply with such rules and regulations.

Just going back to issues of 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. For example, the lady applying for the position is pregnant, therefore she is not appointed.

Indirect discrimination is when seemingly objectives are placed to disqualify certain groups of persons. For example when one of the job criteria states that one has to be a South African or an Afrikaans speaking person. It is important to remember that indirect discrimination may be intentional or unintentional.

It is important to note that 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.

It is a fact that 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 towards the employee.

Rebecca please take note that despite your employer’s feelings, you are 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 your child (unless a medical practitioner or a midwife advices otherwise). In addition to this, you may not return to work for 6 (six) weeks after the birth of your child, unless a medical practitioner or a midwife advices otherwise.

Rebecca please be advised that according to the South African laws, the employer is not obliged to pay for maternity leave. During your pregnancy you are entitled to claim UIF maternity benefits from the Department of Labour. You need to submit your claim forms at least 8 (eight) weeks prior to commencing your maternity leave. If you then are discriminated against, because of your pregnancy, this type of discrimination will fall under automatically unfair discrimination which is in section 187(e) of the Labour Relations Act and you can get up to 24 (twenty four) months’ salary as compensation from the CCMA.

The most relevant case is the Wallace v Du Toit [2006] 8 BLLR 757 (LC) where the employee 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 employer 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 would end by this virtue.

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 for what she claimed was an automatically unfair dismissal and damages under the Employment Equity Act.

Beyond reasonable doubt there was a dismissal as defined in section 186(1)(a) of the Labour Relations Act and the reason for the dismissal related to the applicant’s pregnancy.  The court held that there was an automatically unfair discrimination and considered 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. There was also an addition to the compensation for the patrimonial loss suffered by the applicant.

The employee was 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 in the matter.

In many cases, the employer always look for reasons other than pregnancy to dismiss the employees, but whenever pregnancy is involved, the courts tend to scrutinize the real reasons why the employee was dismissed. The good news is that an employee according to the labour laws does not discriminate based on nationality, race or color.

Rebecca, all employees are equal, all employees are equally protected. So please do not despair at all!

 

Advocate Chadya Tapiwa Diamond is a Legal Specialist at MIWUSA Trade Union, a former student leader a Legal Practitioner, He  can be contacted on 27 (0)84 566 2756 or 27 (0)81 518 5880, Whatsapp or Email him at diamondtapiwa@gmail.com,or twitter @mantronieqscie or like Tapiwa Diamond Chadya on facebook.

He writes in his own personal capacity.

 

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