WHAT TO DO WHE. . . . Your Staff Member is Pregnant

ARTICLE 26

WHAT TO DO WHEN . . . . Your Staff Member is Pregnant

By Nikki Viljoen – N Viljoen Consulting CC – April 2009

First of all, for the record – you cannot dismiss an employee because they are pregnant. Dismissing an employee on the grounds that she is pregnant is viewed as “automatically unfair” and it comes at a cost.

Second of all, for the record – the full period of maternity leave is 4 months (unless otherwise agreed in writing for a longer period). If you shorten this period, even by mutual written consent, you could find yourself in the deep smelly brown stuff.

Thirdly, the employee’s right to ‘time off’ for the pregnancy does not end there – let me explain. Let’s return to our protagonists. Mike the owner of the retail outlet and Jane the cashier.

Jane is pregnant and she is due to give birth in November and as we all know, December is a really busy time in the retail environment. By mutual agreement (Jane does not want to lose out on her Christmas commissions), they agree that she will only take one month off, as pregnancy leave, instead of the laid down 4 months. Jane signs off on this giving her consent.

In November Jane goes on leave a week before the due date and then Jane gives birth and becomes a proud mother to a healthy set of twin boys. So far, so good. Well the twins start off healthy, but soon they both develop colic and Jane understands that there is no way that she can go back to work as soon as she had planned, she needs to take care of the boys.

Jane contacts Mike, explains the situation to him and requests an additional one month maternity leave. Mike is furious – he has not put any kind of contingency plan into place as Jane assured him that she would be back after a month and it is too late to get someone else in to help as the store is already as busy as can be and he cannot ‘spare’ anyone to train someone new. Mike tries to be reasonable and tells Jane that she can have an additional two weeks leave. Jane refuses to accept this new arrangement and just doesn’t go back after the additional two week period is up. Mike dismisses her in Abstentia.

Jane takes Mike to the CCMA for unfair dismissal, stating that she had been dismissed for a reason that was directly related to pregnancy. Mike says that that is nonsense as the wording in the Labour Relations Act (LRA), sections 187(1)(e) “for a reason related to pregnancy” means that if a mother has any sort of complications as a result of the birth and that this does not extend to any illnesses experienced by the baby. Mike also says that Jane was not dismissed because of her pregnancy or because the babies were ill, but because she was absent from work without leave.

Well the CCMA saw things a little differently. Just as the price of democracy is very high, so too is the price of equality. The CCMA’s take on this was “Difficulties experienced by employers in keeping a woman’s job open while she is on maternity leave is the price that must be paid for recognizing the equal status of women in the workplace. The law protects women, not only while pregnant, but also while they are attending to the consequences of pregnancies.”

How’s that for a smack of reality?

Mike then pointed out that Jane had signed an agreement stating that she would only take one month’s maternity leave.

Well that didn’t work very well either – you see the BCEA (Basic Conditions of Employment Act) says that the employees are entitled to 4 months maternity leave. So the agreement that Mike had with Jane for the 1 month maternity leave is in fact unlawful, so it cannot be enforced as it contravened the BCEA.

In this instance, if Jane had been given her full four months maternity leave, this situation would not have arisen. The consequences of Mike’s action was very expensive – he had to pay out 20 months remuneration and also pick up the costs of both his attorney and Jane’s attorney to.

The bottom line is this – the BCEA are not just guidelines, they are the law – so if it stipulates something, that something means that it is the minimum that you can do – in this case the minimum amount of maternity leave that can be given is 4 months. Anything less than that could find you in hot water – anything more than that can be negotiated and agreed to.

Remember though, if you give one employee 6 months maternity leave, you have to give all the others the same amount.

Nikki is an Internal Auditor and Business Administration Specialist who can be contacted on 083 702 8849 or nikki@viljoenconsulting.co.za or http://www.viljoenconsulting.co.za