South African law is clear that if you dismiss an employee due to pregnancy, or for any reason related to pregnancy including maternity leave, said dismissal is deemed to be automatically unfair. It is of paramount importance to note that the primary objective of the Labour Relations Act 66 of 1995 (LRA) is aimed at job security.
- The Basic Conditions of Employment Act 75 of 1997 (BCEA) reinforces these rights;
- Section 25 of the BCEA makes provision for at least four consecutive months’ maternity leave;
- Whilst Section 26 of the BCEA prohibits requiring pregnant or breastfeeding employees to perform hazardous work, obliging employers to offer suitable alternatives; and
- The Employment Equity Act 55 of 1998 (EEA), in section 6(1), also forbids discrimination based on pregnancy.
It is evident that the various pieces of legislation have been enacted to prevent dismissals due to pregnancy. However, dismissals still occur – often disguised as retrenchments, poor performance cases, or the non-renewal of fixed-term contracts.
What can you do?
Firstly, consult a labour attorney near you to assert your rights whether you are an employer or an employee.
If you are dismissed, you must act swiftly to avoid any potential prejudice. You can approach the CCMA within 30 days from date of dismissal seeking either reinstatement (with back pay) or compensation of up to 24 months’ salary.
Employers should obtain sound labour advice to ensure compliance, if they are faced with a situation where an employee is pregnant, as opposed to taking a decision hastily.
Article written by Faure & Faure Inc. Attorney, Darian Hock and Candidate Attorney Chrisli Hamman.
To make an appointment you can email contact@faurefaure.co.za or call 021 871 1200