Source: HER LAW – Making the law work for you
By: Adv. M. Nagtegaal, J. Nagtegaal, V. Nagtegaal
If your idea of a holiday is sleeping late, relaxing and having lots of time to yourself, maternity leave definitely doesn’t qualify. Think of it as a time when you’re investing in your family’s future. This is why you need to know what your rights are in this beautiful but frantic period.
Maternity leave and the law
The South African Constitution enshrines everyone’s right to equal protection and benefit of the law, and to the full and equal enjoyment of all rights and freedoms. It also ensures everyone the right to fair labour practices. These rights have been given force in all recent labour legislation.
Our Basic Conditions of Employment Act lays down certain minimum standards that a contract of employment must comply with. The laws and rules that we refer to throughout this chapter are rooted in this act unless we state otherwise.
Employers have a duty to provide for leave, and this is legally enforceable. An employer must also provide for maternity leave in the contract of employment. This means that you do get time off to prepare for your new baby and to settle your bundle of joy in his or her new home. As an employee, you must, however, tell the employer in writing as early as possible when your intended maternity leave will start, and when you intend to return to work.
Length of maternity leave
Obviously the ideal would be to take 21 years off to ensure that your child is a happy, well-adjusted adult by the time he or she leaves home. Unfortunately the law is stingy, and you only get 1.6% of that.
You’re entitled to at least four consecutive months maternity leave, which may begin at any time from four weeks before the expected date of birth. However, if a midwife or medical practitioner certifies that your health or that of your unborn child makes it necessary to start your leave earlier, this period may exceed the four months. (Obviously it’s illegal for them to falsify this information.) You and your employer may also agree on a different period.
No employee may be expected to work for the first six weeks after the birth of her baby. A medical practitioner or midwife may, however, certify that you’re fit to work, so if you’re an over-achiever, you can go ahead.
Maternity leave and your salary
Employers do not have to pay employees while they’re on maternity leave. Some employers do, however, provide for paid maternity leave and their employment contracts state how many days or weeks will be paid. Check your contract so that you know what right you have to paid maternity leave. If your employer doesn’t provide it, you may be able to claim from the Unemployment Insurance Fund (UIF).
Maternity leave and unfair dismissal
If an employer refuses to allow an employee to return to work after she’s taken maternity leave to which she was entitled, the law regards this as dismissal. Furthermore, it’s unfair dismissal. The law states that dismissal on account of an employee’s pregnancy, intended pregnancy, or any reason related to the pregnancy amounts to an automatically unfair dismissal. And that’s not all. An employer cannot successfully defend a case of automatically unfair dismissal!
This hasn’t always been the situation; these new laws reflect our Parliament’s progressive attitude to women and children, and the importance it attaches to them.
You can also be ‘constructively dismissed’ on the grounds of pregnancy. Constructive dismissal is when your employer doesn’t actually dismiss you by firing you, but through his or her actions, makes your job become intolerable. To qualify as constructive dismissal, it’s not the relationship with your employer that must become intolerable, but your job itself. You don’t need to prove intention on the part of your employer to establish constructive dismissal, but if you can show that the employer did indeed intend to force you out in this way, it helps to strengthen your case.
If your boss reduces your salary or changes your job description when he or she’s been informed of your pregnancy, this can be grounds to argue constructive dismissal. It is, however, important to remember that you will have to prove dismissal. It’s not the employer’s responsibility to prove that it wasn’t dismissal. All the employer will have to do is produce enough evidence to support the reasons for changing your job description and salary. It would then be up to you to prove that the changes in your working arrangements were because of your pregnancy.
It’s important to point out that, unlike other forms of discrimination, the employer may not justify the discrimination by referring to the inherent requirements of the job. This means that the employer may not discriminate against you for reasons related to your pregnancy and then argue that there are inherent requirements that your job demands of you that you now can’t cope with because of your pregnancy. This is not allowed; it would be seen as an automatically unfair dismissal in a court, and you could sue the employer.
WHAT YOU CAN DO ABOUT DISMISSAL
If your employer dismisses you because of your pregnancy, you can refer your dispute to the CCMA within 30 days of the dismissal in order for the Commission to decide on the matter.
WHAT YOU NEED TO PROVE IN A CASE OF DISMISSAL
Remember that you may not be dismissed because you’re pregnant, intend to become pregnant, or for any other reason related to your pregnancy. If you allege that you’re a victim of an automatically unfair dismissal, you must prove the following in order to succeed with your claim:
§ that you’re an employee and not an independent contractor, as only employees are protected under the Labour Relations Act
§ that you were dismissed by the employer (and remember that this includes constructive dismissal)
§ that the reason for your dismissal was discrimination by the employer
§ that the discrimination was based on your being pregnant or your intention to become pregnant.
If you can prove the above points, the dismissal will be automatically unfair; the employer will not be permitted to claim it was fair and based on the inherent requirements of the job.