With this pause in operations, some companies have asked employees to take a pay cut and also use their annual leave to offset the time spent at home not working. This has presented a complex challenge for pregnant moms due to go on maternity leave.
Under normal circumstances, moms would use their annual leave to supplement the amount of time they can have at home with their new-borns in accordance with the law around maternity leave.
Under the current circumstances, many employees are forced to take annual leave to reduce costs, thus affecting the length of their extended maternity leave which is usually planned ahead of time thus affecting both expecting mom and the employer.
This leaves these moms in a situation where should the lockdown regulations be lifted to Level 1 for example, they will go back to work like everyone else – but unlike everyone else- they would have now spent annual leave days that they could’ve used to supplement their upcoming maternity leave.
Shaa’ista Bulbulia of Govender Patel Dladla attorneys said: “Covid-19 causes an interesting disruption in the employment relationship for those employees who cannot provide services in this time. The inability may be created by the regulations precluding the employees’ work.
“Unless the employment contract provides otherwise, if you as an employee do not provide the services that you had contracted for, and irrespective of the reasons for not providing the services, the employer is not obliged to pay remuneration. I make mention, that there is a corresponding obligation on the employer to provide the employee with works and if the employer is unable to do so, the employee may be relieved of her obligations to provide the services and as such, the employee may still be entitled to her remuneration.”
Dladla attorneys shared the following:
- The Basic Conditions of Employment Act, act no 75 of 1997 (“the ACT”), constitutes a statutory intervention into the employment contract by which the legislature imposed minimum requirements. The Act makes a provision for annual leave to be calculated in terms of Section 20. This is paid leave. Subsection 6 also allows for unpaid leave, but this is permitted at the request of the employee.
- Maternity leave is provided for in Section 26 of the Act. This provision is intended to ensure equality through the realisation of maternal rights.
- The two types of leave are distinguishable as annual leave is conferred on employees generally, and maternity leave is conferred on a woman alone. I ignore paternity and family responsibility leave for current purposes.
- If the employment contract provides for the employer, at its discretion to place the employee of annual paid leave, the employer may do so at a time of its choosing, and provided the discretion is exercised in a reasonable manner. The limit imposed in the Act is that the employer must “grant annual leave not later than six months after the end of the annual leave cycle”. The employee does not have an election in these cases of when to take her annual leave. As such, the employee cannot protest that she does not want to take her leave now, because she anticipates childbirth.
“The Legislature has chosen that it is fair to allow for maternity leave and has determined a period for this. The loss of extension through annual leave, which is at the discretion of the employer, cannot be criticised, ” Bulbia concludes.