Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
The Code Of Good Practice On The Protection Of Employees During Pregnancy And After The Birth Of A Child (The Code) is aimed at protecting pregnant and post-pregnant employees, and obliges employers to implement a series of appropriate measures to protect pregnant or breast-feeding employees from hazards at the workplace.
Employers should note that, even where an employee who has already given birth is 100% well, the illness of the newborn baby entitles the employee to time off to look after the child.
In the case of De Beer vs SA Export Connection cc t/a Global Paws (2008, 1 BLLR 36) the employee gave birth to a twin and was granted six weeks’ maternity leave by agreement. As the babies were both ill by the time the maternity leave period was up, the mother did not return to work thereafter. She was therefore dismissed.
The employee referred the matter to the Labour Court for automatically unfair dismissal in terms of section 187 of the Labour Relations Act (LRA) because she had been fired for reasons related to her pregnancy. That is, she claimed that the dismissal was related to her pregnancy. The employer argued that the illness of the children did not relate to the pregnancy. That is, it argued that the phrase in the LRA ‘reasons relating to pregnancy’ refers to the mother herself and not to the new born children.
The Labour Court decided that:
- the phrase in the LRA ‘reasons relating to pregnancy’ refers not only to the mother herself but also to the new born children and to the mother’s right to nurture them
- the agreement entered into by the parties limiting the maternity leave to one month was null and void
- the employee was legally entitled to take the remainder of her maternity leave (4 months in total) to look after her babies
- the dismissal was automatically unfair
- the employer was to pay the employee 20 months’ remuneration in compensation plus the legal costs of the employee.
Due to the substantial legal protections of pregnant employees employers cannot afford to treat them as they believe is fair. Instead, employers need to utilise the services of labour law experts to devise and implement detailed strategies for ensuring the welfare of working mothers and for minimising the effect of motherhood on workplace productivity without breaking the law.
