Pregnancy and discrimination in the work place
The court found that an employee was unfairly discriminated against on the grounds that she was pregnant
Section Nine of the Constitution states everyone is equal before the law and has the right to equal protection and benefit of the law.
On May 18, 2020, the Labour Appeal Court (LAC) made a decision on pregnancy discrimination. The court found that an employee was unfairly discriminated against on the grounds that she was pregnant. It was the employee’s second pregnancy in a period of three years and as a result the employer had failed to place her in an alternative position prior to maternity leave.
The employee was a heavy-duty truck driver.
She informed her employer of her second pregnancy on May 28, 2014, and was relieved of her hazardous responsibilities underground with immediate effect – in line with the employer’s policies.
However, she was informed by her employer that they were unable to find her a suitable alternative position and she was consequently placed on unpaid leave from June 4 to November 28, 2014. The employer’s procedure on pregnancy in the workplace was that suitable alternative employment may be offered to any employee during pregnancy if the employee is engaged in high-risk work and it is reasonably practicable.
The employee would be placed on unpaid leave if the prior is not possible; paid maternity leave would only be applicable once during a three-year cycle.
The employee lodged a claim of unfair discrimination against her employer as it failed to place her in an alternative position for the period before she went on unpaid maternity leave.
The Commission for Conciliation, Mediation and Arbitration (CCMA) found in favour of the employee. It was taken into account that another employee reported her pregnancy a few days later and was offered an alternative position. The CCMA ordered that the employee be compensated R20 000 for the impairment of her dignity and self-esteem, as well as damages equivalent to five months’ remuneration.
The employer appealed to the Labour Court who found in its favour. The court found that the employer was relieved of its obligation to prove that no discrimination took place and that the unpaid leave was a suitable alternative during the circumstances.
The employee then appealed the matter to the LAC, which found that the arbitrator could not award damages to the employee as this issue was not pleaded before the CCMA. However, the LAC found that the employer differentiated the employee from other employees on the basis of her pregnancy for a second time in three years. The employer’s decision constituted unfair discrimination.
The LAC ordered the employer to pay the employee the salary she would have earned if she had been placed in alternative employment from June 4 to November 28, 2014.
This case was premised on the fact that the employee was not afforded alternative employment for the period leading up to maternity leave, when another pregnant employee was afforded alternative employment a few days after the first employee was placed on unpaid leave.
Article by Vera-lize Deetlefs – candidate attorney at Malherbe Rigg and Ranwell Inc. (MRR)
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