Everything you need to know about the maternity leave precedent set in court this week

A landmark case has recently been won by a pregnant employee who was discriminated against because she fell pregnant twice in 3 years.

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Discrimination is the last thing on your mind when you break your pregnancy news to co-workers. But the harsh reality is that many pregnant women are treated unfairly – and sometimes – even get fired when their bosses find out they’re expecting.

This is why the case that was won in The Labour Appeal Court earlier this week is such a big win for pregnant women and women who plan on starting a family.

Lawyer Lizle Louw, a partner at Webber Wentzel, talked to Refilwe Moloto on CapeTalk yesterday morning about this important ruling by the Labour Appeal Court over unfair discrimination on the grounds of pregnancy.

“This case underscores the importance for employers to comply with their policies with regards to maternity leave,” Lizle said.

She explained that in this case, the employer’s policy recorded that employees who fell pregnant twice in a three-year period will not be entitled to paid maternity leave for the second pregnancy. “The policy does, however, say that such employees must be placed in alternative positions if they have a high-risk job. The employee is an engineer at a mining house, which meant that she’d need to go underground – which is not safe when you’re expecting. She was not placed in an alternative position – when there was actually such a position available,” Lizle says.

“The Labour Appeal Court found that the reason for this was because it was her second pregnancy in three years, which of course amounted to unfair discrimination.”

What constitutes a high-risk job?

High-risk work would include anything to do with biological, ergonomic and physical factors. So, this means if you’re pregnant and are exposed to noise, vibration, radiation electric and electromagnetic fields and radioactive substances or other extreme conditions, your employer should find an alternative position for you if your work station cannot be made safe. Working with hazardous chemical substances are also considered dangerous during pregnancy. Heavy physical work, static work posture, frequent bending and twisting, awkward postures, standing for long periods or sitting for long periods are also considered high-risk jobs during pregnancy.

According to section 26(1) of the Basic Conditions of Employment Act (BCEA) employers can’t ask or permit a pregnant employee or an employee who is breastfeeding to perform work that is hazardous to the health of the employee or the health of her child.
The act also states that where appropriate, employers should maintain a list of employment positions not involving risk to which pregnant or breastfeeding employees could be transferred to.

Section 26(2) of the BCEA states that an employer must offer suitable alternative employment to an employee during pregnancy if her work poses a danger to her health or safety, or that of her child, or if the employee is engaged in night work (between 18:00 and 06:00, unless it is not practicable to do so.) Alternative employment must be on terms that are no less favourable than the employee’s ordinary terms and conditions of employment.

Can a company really prescribe the timing of when you have your kids?

“There’s nothing in the BCEA that prevents companies from making policies or policy decisions with regards to timing of having children. The Basic Conditions of Employment Act in South Africa determines that maternity leave is always unpaid,” says Lizle.

“So, if an employer provides paid maternity leave, it provides above and beyond of what our law currently provides – and that’s why they can make policy decisions like this one,” she adds.

ALSO SEE: How South Africa’s maternity leave compares internationally

How much maternity leave do you get in South Africa?

You get four consecutive months of maternity leave which may be taken any time four weeks before the date of birth. You may not return to work until six weeks after the baby’s birth, unless certified to do so by your healthcare provider. These four months are unpaid leave, but you can claim unemployment from the UIF.

“The fact that maternity leave is unpaid in South Africa has not been before court yet. The cases that have been before the Labour Court and the Labour Appeal Court have all been about placing employees in alternative positions and so forth, but the actual essence of it being unpaid has never been tested in our courts – and not in our constitutional court,” Lizle says.

ALSO SEE: What South African dads need to know about their new right to paternity leave

What you should know about your rights

“There have been recent developments regarding parental leave as well as adoption leave and commissioning parental leave, which extends the entitlement of people who are not your traditional husband and wife or man and woman having a child together to provide more leave in such a situation. This new parental leave is also, however, unpaid,” Lizle says

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