Section 187(1)(e) of the Labour Relations Act, 66 of 1995 is aimed at protecting women in employment who intend falling pregnant; are pregnant and/or have given birth. The Section specifically provides that:

“(1) A dismissal is automatically unfair if the employer, in dismissing the    employee, acts contrary to section 5 or, if the reason for the dismissal is –

(e)  The employee’s pregnancy, intended pregnancy, or any reasons related to   her pregnancy.”

Unless otherwise agreed, a pregnant employee is entitled to at least four consecutive months’ unpaid maternity leave.

Maternity leave, as with other forms of leave, is often an inconvenience to employers, especially where the employee is a senior or key employee, as the employer is required to either temporarily fill that employee’s position or manage without her.

As in the recent Labour Court case of Mellissa Brandt v Quoin Rock Wines, employers are at times tempted to dismiss employees who are pregnant or are on maternity leave under the guise of operational requirements.

Although employers are not precluded from dismissing pregnant employees for operational requirements, the dismissal will only be fair if the employer can show that there was indeed a genuine need to retrench the employee.

The Labour Court in De Beer v SA Export Connection CC t/a Global Paws considered the adverse impact which maternity leave may have on an employer and held that:

… it is a considerable burden to an employer to have to make the necessary arrangements to keep a women’s job open for her while she is absent from work to have a baby, but this is a price that has to be paid as part of the social and legal recognition of the equal status of women in the workplace. If an employer dismisses a woman because she is pregnant and is not prepared to make the arrangement to cover her temporary absence from work the dismissal would be automatically unfair.”

In the Brandt case referred to above, the CEO initially had no difficulty with Ms Brandt going on maternity leave.

While in hospital, before the premature birth of her baby and whilst her baby was admitted to the ICU after birth, Ms Brandt continued to perform the essential functions of her job. However, after both her and her baby were again admitted to hospital, Ms Brandt informed the CEO that she would no longer be part of the day-to-day operations as it would put too much stress on her during a time that she needed to focus on the health of her baby. She further confirmed the date on which the maternity leave would end.

It was after this email that the CEO became angry and frustrated with Ms Brandt for feeling that she could determine the scope of her maternity leave; for not always being telephonically available after the discharge of her baby; and for not having properly planned her maternity leave i.e. for not having done a handover (the handover was not possible as Ms Brandt and her unborn child were admitted to hospital three days before the planned handover). The employer then contrived to dismiss Ms Brandt under the pretense of the existence of operational requirements.

The Court found that the employer could not present any substantial evidence to prove that there was a genuine operational need to dismiss Ms Brandt, and therefore found that she was automatically unfairly dismissed for reasons related to pregnancy. Ms Brandt was awarded 16 months’ compensation for the unfairness of her dismissal. The Court furthermore held that Ms Brandt’s dismissal constitutes an “affront to the equality and dignity of women in employment” and accordingly ordered the Company to pay Ms Brandt’s legal costs.

Although maternity leave may be an inconvenience, this is a small price to pay in the pursuit of workplace equality; and the price of circumventing our employment laws may be a much higher one.