Page 1 of 2 12 LastLast
Results 1 to 10 of 12

Thread: Domestic worker insists that I extend her maternity leave for longer than 4 months

  1. #1
    New Member
    Join Date
    Feb 2012
    Location
    Gauteng
    Posts
    6
    Thanks
    0
    Thanked 0 Times in 0 Posts

    Domestic worker insists that I extend her maternity leave for longer than 4 months

    Can someone please give me advice.
    I have a domestic worker that's been on maternity leave from 17 October last year. The 4 months will expire on Friday and she is due to be back at work on Monday 20 Feb. I have a signed employment contract with her as well as a signed undertaking from her to take maternity leave as per the dates and to return to work on 20 Feb.

    She now claims that her baby is too young for her to return to work yet and I must give her another 2 months maternity leave until end April when the baby will be 6 months old.

    now my questions:
    1) Does the law force me to keep her job open for her beyond the 4 months maternity leave until such time she feels that it is time to start working again?
    2) Am I obliged to allow her another 2 months off or can I refuse extra leave?
    3) I know very well that to fire someone due to pregnancy/child birth is seen as discriminating and I must give her job back to her after 4 months, but if she doesn't want to start working again even if I request/tell her to, will it count against me as it will be her that refuse to take up duty again while her job is hers to return to.
    4) Can I give her the option to resign if she wants to look after her baby and not return to work? (I know I can't force a mother to choose between her job and family) and can this be seen as constructive dismissal?
    5) If she refuses to resign and if I refuse to give her extra leave, will it be seen as abscondment and what will the steps be?

    Many thanks in advance.

  2. #2
    Suspended
    Join Date
    Nov 2010
    Location
    Johannesburg
    Posts
    893
    Thanks
    8
    Thanked 61 Times in 54 Posts
    Offer her another two months UNPAID leave and see what she says ......

  3. #3
    New Member
    Join Date
    Feb 2012
    Location
    Gauteng
    Posts
    6
    Thanks
    0
    Thanked 0 Times in 0 Posts
    am I forced to offer unpaid leave for as long as she sees fit to look after her baby?
    From what I've read I'm obliged to keep her job open for her to return to for 4 months. What if she decides to stay with her baby throughout the winter and only to return in September - can I be forced legally to permit her to take unpaid leave until she wants to work again?

  4. #4
    Suspended
    Join Date
    Nov 2010
    Location
    Johannesburg
    Posts
    893
    Thanks
    8
    Thanked 61 Times in 54 Posts
    I know what I would do and that is no I would not take her back, unless she was an outstanding worker, which i doubt because I havent come across one yet in my 48 years. I would say no you are not obliged to , but I think you would need to hear from the legal guys here what exactly is the story.

  5. #5
    New Member
    Join Date
    Feb 2012
    Location
    Gauteng
    Posts
    6
    Thanks
    0
    Thanked 0 Times in 0 Posts
    I'd love to hear from them yes.
    No she wasn't really outstanding. I took pictures of work that was done half (or not at all) during the last year. But if she wants her job back it is hers - to start on Monday. Not later than that. Even if she "undertakes" to come back in May - I already have a signed undertaking of her to be back at work on Monday and it doesn't look as if she's bothered by it too much.

  6. #6
    Silver Member geraldenek's Avatar
    Join Date
    Jul 2008
    Location
    Somerset West
    Posts
    229
    Thanks
    19
    Thanked 112 Times in 80 Posts
    Normally you will need to give her a letter stating that you are not going to accept extra two months and she needs to be back at work on the 20 of Feb which she will need to sign.

    If she is not there on 20 Feb give her a disciplinary hearing letter with a date that she will also need to sign if she does not attend the disciplinary hearing, dismiss her in her absence.

    But best is if Anthony from the forum can confirm this
    Geraldene Kapp
    Professional Tax Help
    www.mytaxhelp.co.za

  7. #7
    Diamond Member Vanash Naick's Avatar
    Join Date
    Sep 2011
    Location
    lenasia
    Posts
    3,281
    Thanks
    849
    Thanked 693 Times in 607 Posts
    Blog Entries
    2
    Hi Mr's CK,Okay, the two pieces of legislation that govern maternity are: firstly the Basic Conditions of Employment Act 75 of 1997(as amended) section 25(1)-(7)and secondly dismissal regarding pregnancy or intended pregnancy , the Labour Relations Act 66 of 1995(as amended) section 187(1)(a)
    1. KevinB is exactly right in the advise he has dispensed. I couldn’t have said it better myself! Your employee is lawfully entitled to 4 consecutive months of maternity leave. Should she require more leave thereafter she should request such additional leave from you which will be unpaid leave. Might I suggest that you grant her two months unpaid leave;
    2. Dismissals for any aspect related to pregnancy or intended pregnancy is classified in law as “automatically unfair,” This is indeed a slippery slope so I would negotiate around this problem very astutely. See below for what the law itself says on this matter:

    “25. Maternity leave
    (1) An employee is entitled to at least four consecutive months' maternity leave.
    (2) An employee may commence maternity leave-
    (a) at any time from four weeks before the expected date of birth, unless otherwise agreed; or
    (b) on a date from which a medical practitioner or midwife certifies that it is necessary for the employee's health or that of her unborn child.

    (3) No employee may work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so.
    (4) An employee who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to maternity leave for six weeks after the miscarriage or stillbirth, whether or not the employee had commenced maternity leave at the time of the miscarriage or still birth.
    (5) An employee must notify an employer of the date on which the employee intends to -
    (a) commence maternity leave; and
    (b) return to work after maternity leave.

    (6) Notification in terms of subsection (5) must be given-
    (a) at least four weeks before the employee intends to commence maternity leave; or
    (b) if it is not reasonably practicable to do so, as soon as is reasonably practicable;

    (7) The payment of maternity benefits will be determined by the minister subject to the provisions of the Unemployment Insurance act, 1966 (Act No. 30 of 1966) (7)

    187. Automatically unfair dismissals
    (1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 549 or, if the reason for the dismissal is-
    (a) the employee's pregnancy, intended pregnancy, or any reason related to her pregnancy;”
    “The philosophers have only interpreted the world, in various ways. The point, however, is to change it.” Karl Marx
    vanash.naick@gmail.com
    TFSA Disclaimer
    Local Music with a grassroots touch


  8. #8
    New Member
    Join Date
    Feb 2012
    Location
    Gauteng
    Posts
    6
    Thanks
    0
    Thanked 0 Times in 0 Posts
    Thanks - that is the very thing I am afraid of. That my refusal to grant her another 2 months leave (undpaid) will be seen as discriminating or not. By law I was obliged to give her 4 months, which I did. By law she must be able to return to work - which she doesn't want to do.

    I read this part: Dismissals for any aspect related to pregnancy or intended pregnancy is classified in law as “automatically unfair,” and I understand it completely, but could it still be seen as "dismissal" if I refuse an extension of antoher 2 - X months and if she decides to resign as a result or if she decides to take unapproved leave, which will be absconding from work?

    I keep asking myself if I could have also asked my Employer to grant me extra months maternity leave and what his answer would have been - I even went to ask him and he said that there was no way.

  9. #9
    Diamond Member Vanash Naick's Avatar
    Join Date
    Sep 2011
    Location
    lenasia
    Posts
    3,281
    Thanks
    849
    Thanked 693 Times in 607 Posts
    Blog Entries
    2
    The law also classifies a dismissal as a failure of an employer to extend alternatively renew a fixed term contract where the employee reasonably expected the employer to renew such fixed term contract...
    “The philosophers have only interpreted the world, in various ways. The point, however, is to change it.” Karl Marx
    vanash.naick@gmail.com
    TFSA Disclaimer
    Local Music with a grassroots touch


  10. #10
    Silver Member geraldenek's Avatar
    Join Date
    Jul 2008
    Location
    Somerset West
    Posts
    229
    Thanks
    19
    Thanked 112 Times in 80 Posts
    Quote Originally Posted by MrsCK View Post
    could it still be seen as "dismissal" if I refuse an extension of antoher 2 - X months and if she decides to resign as a result or if she decides to take unapproved leave, which will be absconding from work?
    No, she is only allowed by law to have 4 months and she may request the extra 2 as she did but if you refuse then she is not allowed to take it
    Geraldene Kapp
    Professional Tax Help
    www.mytaxhelp.co.za

Page 1 of 2 12 LastLast

Similar Threads

  1. Maternity leave pay and UIF
    By DeborahCarrao in forum Labour Relations and Legislation Forum
    Replies: 6
    Last Post: 18-Jan-11, 07:50 AM
  2. Hiring a domestic worker
    By Renee H in forum Labour Relations and Legislation Forum
    Replies: 8
    Last Post: 23-Mar-10, 07:49 AM
  3. Maternity Leave
    By SPSmith in forum Labour Relations and Legislation Forum
    Replies: 13
    Last Post: 09-Nov-09, 10:21 PM
  4. no more domestic worker
    By duncan drennan in forum General Business Forum
    Replies: 4
    Last Post: 09-Dec-06, 04:40 PM

Did you like this article? Share it with your favourite social network.

Did you like this article? Share it with your favourite social network.

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •