The Basic Conditions of Employment Act and the Labour Relations Act both provide adequate protection and regulate a pregnant woman’s position in the workplace.
There is no duty on an employee to disclose the fact of her pregnancy except for the purpose of maternity leave (as per the BCEA) and failure to do so could not be regarded as “deceit” in the context of the relationship of trust between Employer and Employee.
In terms of section 25 of t/maternity-leave/he BCEA, a pregnant employee is entitled to 4 (four) months unpaid maternity leave. Maternity leave can be taken at any time from 4(four) weeks prior to the expected date of birth; unless a medical practitioner or midwife advises otherwise. Although maternity leave is unpaid, a pregnant woman can claim UIF benefits from the Department of Labour.
A woman who has taken maternity leave is protected from dismissal based on the following grounds. Section 186 (1) (c) of the Labour Relations Act includes under the definition of a dismissal when an employer refuses to allow an employee to resume work after she has taken maternity leave.
An employee can either claim dismissal on the grounds of pregnancy and refer her case to the CCMA. The matter will initially be set down for conciliation and thereafter for arbitration. The employee can claim up to 12 months’ remuneration.
Alternatively, an employee can claim an automatically unfair dismissal and refer it to the CCMA for conciliation. If unresolved, the matter will be referred to the Labour Court and the employee can claim up to 24 months’ remuneration.
A dismissal is automatically unfair if the reason for dismissal is the employee’s pregnancy, intended pregnancy or any reason related to her pregnancy.
With the amendments to the EEA, and in particular section 10, the jurisdiction of the CCMA has been widened, In addition to having jurisdiction to conciliate any discrimination dispute, the CCMA also has jurisdiction to arbitrate certain disputes.
All allegations of unfair discrimination on the grounds of sexual harassment, irrespective of whether or not the employee/s earn under the threshold of R17 119.42 per month.
Any other allegation of unfair discrimination, apart from sexual harassment, where the employees earned less than the stated in the determination made by the Minister in terms of section 6 (3) of the BCEA.
Where all the parties to the dispute consent, in writing the matter can be referred to arbitration.