How to prevent unfair dismissal when you are pregnant
A big concern for many pregnant women is their rights according to the Labour Relations Act, we break down in this article exactly how it works and what your rights are.
MBOMBELA – The Labour Relations Act lists the reasons for which an employee may not be dismissed under any circumstances. Such dismissals are automatically unfair.
Once proven, the employer can raise no defence and the employee is entitled to reinstatement or, in exceptional cases, compensation.
A woman may not be dismissed in any circumstances merely because she is pregnant. It is made clear that dismissal of a woman who is on maternity leave, now up to four months under the new Basic Conditions of Employment Act (BCEA), is impermissible.
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However, employers are not precluded from dismissing pregnant employees for operational requirements or incapacity, provided that a court can be persuaded that there was indeed a valid economic or related reason. In Woolworths (Pty) Ltd v Whitehead, the judge held that foreign judgements, in which it was ruled that pregnant employees could not be dismissed in any circumstances, were based on stricter legislation than that applicable in South Africa.
The court held that an employer may have regard to economic considerations, which includes profitability and including the woman’s availability to perform her services, when considering whether to employ a pregnant applicant.
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Thus, the right to equality takes on a different meaning depending on a particular employee’s status in the workplace. The fact that the inherent requirements of a job can be taken into account implies that if there is a continuity requirement in a specific case of employment, for example, an important managerial position, an employer can make use of such a defence.
The court’s view that taking pregnancy into account when interviewing prospective employees, especially for executive positions, where the employee need to be present for the business to function properly, amounts to a perfectly rational and commercially understandable consideration.
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If a dismissal is automatically unfair, it needs to be in writing and submitted within 30 days from date of dismissal to the CCMA.
For further information, you can submit your enquiries to the CCMA Nelspruit regional office, at 25 Samora Machel Drive, Sanlam Centre Building, Seventh Floor, Nelspruit, with contact number 013-752-2155.
