14 DECEMBER 2009


Dear Reader
If the real reason for your dismissal is the fact that you are pregnant, plan on becoming pregnant or are related to your pregnancy (example taking time off for doctor’s visits or caring for an ill baby), your dismissal may be found to be automatically unfair and you could be entitled to up to 24 months in compensation.
Section 187(1)(e) of the Labour Relations Act 66 of 1995 stipulates that:

“A dismissal is automatically unfair if the employer, if the reason for the dismissal is the employee’s pregnancy, intended pregnancy or any reason related to her pregnancy”

Dismissal in this context can include your employer’s refusal to allow you to return to work after you had taken maternity leave.  As an employee you are entitled to a minimum of four consecutive months of unpaid maternity leave in terms of section 25 of the Basic Conditions of Employment Act.  This maternity leave can be taken any time from 4 weeks before the expected date of birth, unless otherwise agreed or stipulated by a doctor or midwife.
It is clear that the courts won’t tolerate employers who dismiss an employee for her pregnancy or any reason relating thereto.  This is evident from numerous judgements delivered.
For example in Lukie v Rural Alliance CC t/a Rural Development Specialist   the employee informed the employer that she was pregnant and wished to take time off for her confinement. The employer then later changed his mind and told the employee that she doesn’t have to return to work after the birth of her baby.  She did not return to work and instituted an unfair dismissal claim against her employer.  The employer denied that she had been dismissed. On the evidence, the court concluded that she was dismissed, that the reason for her dismissal was her pregnancy and that her dismissal was automatically unfair.
In the case of De Beer v SA Export Connection BK t/a Global Paws  the employee was only allowed to go on maternity leave for one month after the birth of her twins, after agreed so by the parties.  The Court found that there were no legal grounds for such an agreement and that it was defiant of the Basic Conditions of Employment Act.  Shortly before the date she was to return to work she requested her employer to extent her maternity leave with four weeks to enable her to care for her babies who suffered with colic.  The employer was only willing to extent her leave with two weeks, which she refused.  Upon her failure to return to work, she was dismissed without a disciplinary hearing.  The matter was eventually referred to the Labour Court for adjudication.  The court found that she was automatically unfairly dismissed.  The Courts reasoning was that she was denied to take her full maternity leave as allowed in terms of the Basic Conditions of Employment Act and was then dismissed because she requested more maternity leave to care for her sick babies.  The court also submitted that it is impossible to find that the sickness of her babies had no bearing on her pregnancy, and therefore can be covered under “any reason related to the pregnancy “as envisaged in section 187(1)(e).  The employee was awarded 20 months worth of compensation. 
An important principle flowing from this judgment is that the phrase “any reason related to the pregnancy” includes absence due to the need to look after an ill baby.  The law therefore protects employees not only from being dismissed for being pregnant but also against being dismissed for attending to the consequences of a pregnancy.
In the case of Mashava v Cuzen & Woods Attorney s a probationary candidate attorney was dismissed on the grounds that she had delayed disclosing that she was pregnant and that due thereto the trust relationship had broken down. The Court found that the true reason for the applicant’s dismissal was her pregnancy or reasons related to her pregnancy and that her dismissal was therefore automatically unfair.  The Court also found that there is no duty on an employee to inform an employer of her pregnancy other than for purposes of the Basic Conditions of Employment Act.
Despite all of the above an employee can still be dismissed during her pregnancy if the real reason for her dismissal is:
•    The employer’s operational requirement (retrenchment due to economic, structural reasons);
•    The employee’s misconduct (for example insubordination, theft, fraud, negligence) and
•    The employee’s incapacity (poor work performance)

If you claim that your dismissal is automatically unfair due to your pregnancy you will at least have to prove that your employer was aware of the fact that you are pregnant and that your dismissal was possibly on this account.  Once this has been established the employer will have to prove that your dismissal was for a fair reason and effected in terms of a fair procedure.
Please contact us for advice and assistance if you were dismissed and you are of the opinion that the real reason for your dismissal was the fact that you are pregnant, you intended falling pregnant or for a reason relating to your pregnancy.

Me. L  Bouwer
General Manager: Legal Assistance
(LLB, LLM -Labour Law)

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For Further Information, Please See:

http://www.retrenchmentassist.co.za/index.php/ccma- representation/arbitration

http://www.retrenchmentassist.co.za/index.php/ccma-representation/dispute-resolution-process

http://www.retrenchmentassist.co.za/index.php/ccma-representation/conarb- process

http://www.retrenchmentassist.co.za/index.php/ccma-representation/concilliation

http://www.retrenchmentassist.co.za/index.php/ccma- representation/condonation

http://www.retrenchmentassist.co.za/index.php/ccma-representation/ccma-rules