Section 187 of the LRA lists certain types of dismissals which are classified as “automatically unfair.” Regarding pregnancy, subsection (e) provides that “A dismissal is automatically unfair if the reason for the dismissal is the employee’s pregnancy, intended pregnancy, or any reason related to pregnancy.”
What does this mean? Is it limited to the birth of the child or does it extend beyond that?
In the case of De Beer v SA Export Connection CC t/a Global Paws the employee and employer agreed that she could take one month’s maternity leave. When mom gave birth to twins she asked that her maternity leave be extended by 4 weeks because the twins were suffering from colic.
The employer was only prepared to give a 2 week extension which the employee rejected. At the end of the two week period the employer terminated her services. Mom referred the matter as an automatically unfair dismissal in terms of section 187 (LRA), stating that she had been dismissed for a reason related to pregnancy.
The employer tried to contend that the wording in section 187(1)(e) “for a reason related to pregnancy” applied only to complications experienced by the mother as a result of the birth, and not to the illness of the baby but the court found that the section must be seen as part of “social legislation aimed at protecting women and putting them on a footing equal with men.”
“Difficulties experienced by employers in keeping a woman’s job open while she is on maternity leave is the price that must be paid for recognizing the equal status of women in the workplace. The law protects women, not only while pregnant, but also while they are attending to the consequences of pregnancies.”
The court accordingly found that the dismissal was automatically unfair. It noted that the treatment meted out to the employee was “degrading and offensive” and awarded her 20 months remuneration as compensation.