On Monday 24th January, the Star Newspaper in Johannesburg published an article on the front page headed “ Working moms get a raw deal."

This article dealt with the question of employees, having been on maternity leave to attend to the joyous event of an addition to the family, return to work only to find that they have been dismissed.

The article evoked countrywide interest, and the subject matter was also dealt with on the radio during a 30 minute programme with SAFm and also with Radio Sonder Grense.

The newspaper article and the radio programmes in fact only scratched the surface of these issues concerning pregnancy and the employer, what is fair and what is not fair, and what is allowed and what is not allowed.

We consider that this issue is of such importance that we will be dealing with it in greater depth in this and forthcoming weekly articles.

The first thing that employers need to understand is that no person may be discriminated against or dismissed on account of pregnancy. This is stated in paragraph 4.2 of the Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of Her Child.

It must be pointed out here that the Code states clearly “ no person", which would seem to imply that even the father of the child may not be unfairly discriminated against on grounds of the pregnancy of his wife or life partner.

This barrier against unfair discrimination is entrenched in the Constitution, in section 9 (3) and (4).

Firstly therefore it is a Constitutional right.

The prohibition against unfair discrimination is also entrenched in the Labour Relations Act in section the 187 (e), and in the Employment Equity Act, section 6.

So employers face the big guns here on this issue. They are faced not only with the might of the Constitution,but also with the full force of two Acts of Parliament, namely the Labour Relations Act and the Employment Equity Act.

From this employers would deduce that this is not a matter to be trifled with, and pregnant employees, all employees on maternity leave, the baby itself, and (it would seem) the fathers, all have rights bestowed upon them by legislation.

Employers would be wise to note that many of the rights bestowed upon the employee places a corresponding duty or legal obligation upon the employer. The rights of employees thus cannot be ignored.

The Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of the Child refers to section 26 (1) of the Basic Conditions of Employment Act, which in turn protects breast-feeding mothers upon their return to work.

In terms of paragraph 4.3 of the Code of Good Practice, employers are required to provide and maintain a work environment that is safe and without risk to the health of employees. The Code states that this includes risks to the reproductive health of employees, and in this connection the Occupational Health and Safety Act 85 of 1993 also comes into play, and employers have a duty to familiarise themselves with that Act as well.

It is in the interests of the employer to study and thoroughly familiarise himself with the requirements of the Code of Good Practice if the employer wishes to avoid what might prove to be rather expensive litigation at a later stage.

As far as pregnant and breast-feeding employees are concerned, the Code of Good Practice lays down very specific requirements in section 5, requiring the employer to act in terms of the identification and assessment of risks, and implementing appropriate action to avoid any risks to the health of the employee or the unborn child, or risks to the breast-feeding child.

The Code of Good Practice deals separately with hazards classed as ergonomic, chemical, and biological, and in section 7 it deals quite extensively with aspects of pregnancy that may affect work.

The section addresses such issues as morning sickness, backache and varicose veins, the employee requiring more frequent visits to the toilet, the increasing size and discomfort of the employee as the period of pregnancy progresses, even addressing issues such as the employees sense of balance becoming affected if she is required to work or walk on slippery or wet surfaces in the workplace.

The section also addresses issues of tiredness associated with pregnancy.

It is considered (and indeed, a legislative requirement) that all employers study and thoroughly familiarise themselves with the contents of this Code of Good Practice, because compliance or noncompliance may well prove to be the deciding factor on whether prolonged and expensive CCMA or Labour Court proceedings must be faced or not.


The day comes when an employee, all bubbly and filled with excitement, approaches the boss and happily announces:

"I am pregnant. I will be requiring maternity leave, probably from 1st August ."

Expecting to be congratulated, perhaps even given a hug, the employee is flabbergasted when the boss raises his eyebrows, glares at her, and remarks " why must you now go and get pregnant?” or even "what do you want to get pregnant for? Are you mad?”

The employee, completely taken aback and totally deflated, quietly mumbles "well, I just thought I would let you know."

The boss reacts with "yes, well - we will see about this maternity leave thing later" and dismisses the matter with a flourish of his gold plated, top of the range ball point pen (Christmas present from his wife – or was it his Secretary ?)

In all probability, the employee, now very worried and upset because the reaction from her boss seems to indicate that she has committed some sort of capital crime, punishable by death followed by banishment to some (as yet) undiscovered Greek island in the middle of nowhere, jumps onto the Internet and sends me an e-mail asking me to please explain what her rights are in terms of maternity leave and job security. She also requires this information in order to educate her boss, who hasn't a clue what the provisions are in the Basic Conditions of Employment Act.

Well, I tell the lady (much to her relief) that she is entitled to four months unpaid maternity leave, which should commence at least four weeks prior to the expected date of birth of the child (unless her medical practitioner or midwife decrees otherwise) and that she is not permitted to return to work for six weeks after the birth of the child (again, unless decreed otherwise by her medical practitioner or midwife.) She can also claim UIF maternity benefits from the Dept of Labour, and she should submit her claim documents at least 8 weeks prior to commencing maternity leave – which makes it 3 months before the expected date of birth of the child.

I also inform her that her job is safe, that the employer may not dismiss her for any reason in connection with pregnancy or intended pregnancy, that she is permitted to take her annual leave as part of her maternity leave in order to reduce the period of unpaid leave if she so desires, but at the same time warning her that this is not a good idea because it means she will have no annual leave available for that leave cycle, and this is especially important if the employer has a December shutdown during which all employees are expected to take annual leave.

In addition, I inform the lady that upon her return to work, some employers have the practice of employing another person in the place of the employee who is now on maternity leave, and upon return from maternity leave the employee is graciously informed that the job that she had when she went on maternity leave it is now no longer her job (the “temp” has now been permanently appointed – in her job nogal !) , but she (the new mother ) has been given another job within the organization.

This practice, of course, is way out of line and in terms of Labour law is prohibited. It amounts to a unilateral change to the terms and conditions of employment of the employee who has been on maternity leave. In other words, the employer has changed a material condition of employment without consulting with the employee, and this places the employer in breach of contract. If one wished to stretch this to the “enth degree” it could be construed that the employer has in fact terminated the employment contract and that the employee has been unfairly dismissed, which invokes a host of a very unpleasant and probably very expensive consequences for the employer.

Employers who make these unilateral changes – BEWARE – and read the signboard. It clearly states

“Mine Field Ahead - Keep Out!! Enter at your Own Risk!!.”

However, as stated, that would be stretching things, but it does give food for thought.

Such action by the employer is, to put it mildly, a very big “NO-NO.”

Should you have any questions in the meantime, contact Derek Jackson on advice@labourguide.co.za

SA Labour Guide
A tribute to Derek Jackson
Derek Jackson a well known member of the Labour Guide team, passed away at the age of 73 years, on Wednesday 14 October 2009.

On Tuesday October 13 Derek fell sick and was taken to hospital by his son. After a very short sickbed, he passed away in hospital the following day.

Derek touched the lives of many people with his advice through our weekly news letters, news paper articles and seminars. He joined Labour Guide in 2001 and was actively involved till the end of his life. Derek was known as a person with a passion for life, especially towards others and his work. He glad fully shared his knowledge and experience with others. Derek was a real inspiration to all and he will be greatly missed.