The Applicant was employed by the Respondent as a Financial Manager for over seven years. On 3 January 2020, she informed the Respondent about her pregnancy and that her estimated date of delivery would be 11 June 2020. She also informed it that she intended to take maternity leave from 1 June 2020 until 30 September 2020. Furthermore, the Applicant planned to do a handover of her work to her assistant on 14 May 2020 before commencing her leave.
On 12 May 2020, the Applicant was admitted to the hospital for monitoring. Her blood pressure was high and there were problems with the condition of her unborn child. The Applicant was hospitalised for 19 days prior to the date of her intended maternity leave, and she gave birth prematurely on 21 May 2020. Consequently, the Applicant could not attend to the planned handover of her work nor depart on maternity leave as expected.
The Applicant’s newborn child was in ICU after birth until 28 May 2020 and the Applicant remained in the hospital with her newborn child until 12 June 2020. The Applicant was in contact with her assistant at all relevant times and was still in possession of her work laptop while she was in the hospital.
On 25 June 2020, the Applicant addressed an email to the Respondent informing it that she and her baby had been admitted to the hospital again and that she would not be able to be part of the day-to-day operations of the business during that period because of this.
However, she confirmed that she was still in contact with her assistant and that her assistant would still be performing her essential duties. Furthermore, she notified the Respondent that her maternity leave would be from 1 June 2020 until 30 September 2020 and that she would reconsider her situation at the end of August 2020 by potentially working half days from September 2020.
Six days later, the Respondent’s Manager called the Applicant and expressed his anger about the fact that she had made her own decision about the length and timing of her maternity leave and that she had not properly organised and planned for her maternity leave.
The Respondent requested the Applicant to conduct a full handover with her assistant, blocked her access to the SARS portal that she used to perform her essential duties and instructed the IT technician to not return her laptop to her. On 14 September 2020, the Respondent informed the Applicant that it had decided to retrench her. Following her dismissal, the Applicant approached the Labour Court for relief alleging that her dismissal was automatically unfair for reasons relating to her pregnancy.
Findings of the Court
The court considered Section 187(1)(e) of the Labour Relations Act 66 of 1995 ( ‘the LRA’) which states that
‘a dismissal is automatically unfair if the Respondent, in dismissing the Applicant, acts contrary to Section 5 (which confers protections relating to the right to freedom of association and on members of the workplace forums) or, if the reason for the dismissal is the Applicant’s pregnancy, intended pregnancy, or any reason related to her pregnancy’. (Emphasis added.)
The Court found that the Respondent’s actions towards the Applicant were a clear indication that the Applicant’s dismissal was related to her pregnancy. The Respondent had not been able to show that genuine operational requirements were the reason for the Applicant’s dismissal. The Respondent also demonstrated a lack of understanding its statutory obligations of employers in relation to maternity leave.
The court referred to the decision in De Beer V SA Export Connection CC t/a Global Paws (2008) 29 ILJ 347 (LC) which emphasised that where parties agree that the employee would work a shorter period than her statutory maternity leave such agreement would be unlawful. Further, that Court held that the Basic Conditions of Employment Act 75 of 1997 entitles an employee to four months’ maternity leave and allows her to structure how she intends to take the maternity leave. The Court interpreted the phrase “any reason” as envisaged by Section 187(1)(e) of LRA to mean that it does not only relate to “pregnancy health problems but should also include babies who are ill and need nurturing from their mothers.”
The Court found in favour of the Applicant and ordered the Respondent to pay her compensation in the amount of R800,000 which was equivalent to sixteen months’ salary. The Court also decided that it was fair to order the Respondent to pay the Applicant’s costs because her dismissal constituted an ‘insult to the equality and dignity of women in employment.’
Conclusion
This case sends a warning to employers that they will face harsh compensation awards and possibly even cost orders should they fail to adhere to the maternity leave rights of employees. Employers should also be cautious about using pregnancy as a reason for dismissal as opposed to having genuine operational reasons for dismissing an employee. The intended purpose of maternity leave is to protect employees and their right to equal status within the workplace and to ensure that employees are not prejudiced or treated unfairly. Employers should always take legal advice when dealing with disputes of this nature. The Respondent’s case constituted a ‘hopeless case’ and the costs order was certainly justified in the circumstances.
