Expecting a child must be, for most, the most sacred and precious moment. I’ve seen in my career how the focus point changes for soon-to-be-moms. Transformation in thinking and in responding, an almost softer approach, but with steel. A journey of creation! The reality is that a moment so precious can turn into turmoil overnight.
In contrast to life, growing and creating, the tremendous job losses in South Africa as reported by BusinessTech, ‘South Africa has lost at least 40% of vacancies in the year 2020, to date’, sketch a not so nice picture. The very first question raised by soon-to-be-moms, with reason, is whether they can be retrenched whilst being pregnant.
Retrenchment is a form of dismissal, and must be answered by scrutinizing two aspects of fairness, namely, fairness in procedure and fairness in reason. There are two rights that need to be balanced, on the one hand an employee’s right not to be unfairly dismissed and on the other the right of an employer to dismiss based on operational requirements.
The Labour Relations Act 66 of 1995(LRA) section 187(1)(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 her pregnancy…’ (Own Emphasis)
The operative word is reason and means ‘a statement offered in explanation or justification; a rational ground or motive; a sufficient ground of explanation or of logical defence’.
Automatically Unfair Dismissal – Or NOT?
Ground-breaking work was done in, Sheridan v The Original Mary Anne’s at the Colony (Pty) Ltd (1999) 20 ILJ 2952 (LC), the Labour Court confirmed the nexus between pregnancy and dismissal. In this instance an employee, three months pregnant, was promoted from waitress to Administrative Manager and kept her former responsibilities as waitress. Her employer reduced her shifts from five to only Monday evenings. Unsatisfied the employee raised her concerns and was relieved from her duties with immediate effect. She did however attend to her duties on Monday evening only to find that she had been replaced.
At the CCMA her automatically unfair dismissal dispute remains unresolved and the matter was referred to the Labour Court where she argued that she had been unfairly dismissed based on her pregnancy and the employer’s counter argument was that she had been dismissed based on her failure to cope with her work load.
The Labour Court held that “A pregnant employee who finds herself dismissed on the grounds that she is pregnant can now approach this court in protection, on any of the two grounds set out in s187(1)(e) and 187(1)(f) of the Act, or the residual unfair labour practices below. Alternatively, she can invoke the provisions of the Constitution. In the first instance in terms of s187(1)(e), the dismissal would be automatically unfair, because the Act prescribes unfair dismissal on the grounds of pregnancy. In the second instance in terms of s187(1)(f) the dismissal is discriminatory on arbitrary grounds. Further she could argue that her discrimination is unfair on the ground of her sex. The latter argument can be entertained both under the Act and under the Constitution”.
Having found the nexus between the dismissal and the pregnancy, the court frowned on the employer’s conduct and held that the dismissal was automatically unfair and awarded the employee compensation of 24 months’ remuneration.
The Labour Court came to a different conclusion in Nadia v B & B t/a Harvey World Travel Northcliff (JS 547/10)  ZALCJHB 168 (30 July 2013), when the Court had to determine whether the employee’s dismissal was based on a prohibited ground, namely being pregnant, and as a result automatically unfair. The Court held that the onus of proof on the employee is twofold namely the employee must show that: the employer was aware of the pregnancy; this was relatively easy as she did announce that to her employer the day before receiving a letter of dismissal; and that the reason for the dismissal was the pregnancy.
The employer did rebut this by showing that the employee was on a three-month probation period and that her poor work performance and late coming was addressed numerous times prior being informed of her pregnancy. The reason for the dismissal was confirmed to be poor performance and not pregnancy. The Labour Court concluded that suspecting that dismissal is as a result of being pregnant is not enough to conclude that an employee’s pregnancy was the principle reason for dismissal.
Establishing a Nexus between Dismissal and Pregnancy
There must be a nexus between the dismissal and being pregnant. In the current economic turmoil and job losses a mere suspicion that being retrenched as a result of being pregnant is not enough. Find the nexus!
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