DISMISSAL FOR PREGNANCY AUTOMATICALLY UNFAIR

Remember people, if you have staff, they are protected against you, just the same as you are protected from them! The secret is to follow the procedures 100% to the letter.

Yes, I know that it can be time consuming and I know that it can be a pain in the butt, however the bottom line is - if you don't know what you are doing - don't! More often than not, people think that they know what they are doing and the result is what happened hereunder. Find out what should be done, research, research, research!

If you don't know of any Labour Attorneys, contact the Department of Labour directly - someone there will be able to assist you. Get their name and direct line, so that if you need to check something with them you at least know who they are.

A little bit of knowledge, in this respect can be, not only a very dangerous thing, but also a very costly thing!


Dismissal for pregnancy automatically unfair
Impti Du Toit
25 July 2007 at 11h00

Our Constitution and labour laws protect pregnant employees against unfair discrimination. But can an employer and employee enter into an agreement that employment will be terminated if the employee falls pregnant? This question is addressed in an article written by Jan Truter of www.labourwise.co.za, an online labour relations service aimed at assisting SMMEs implement effective labour relations. According to the Labour Relations Act the dismissal of an employee due to her pregnancy, or for a reason related to her pregnancy, is based on unfair discrimination and renders the dismissal automatically unfair, writes Truter.

In the labour court case of Wallace vs Du Toit, the employer had employed an au pair to take care of his two young children. "After two years the au pair fell pregnant and her employment was terminated," says Truter. "According to the employer it had been verbally agreed during the pre-employment interview that if the au pair had children of her own, her employment would lapse by virtue of a 'resolutive condition'." The au pair disputed this, although she did admit that she had truthfully told him at the time of her employment that she was single and did not intend having children. When the au pair said that she was pregnant the employer congratulated her, but told her that her services would have to be terminated. According to her evidence, the employer found it objectionable that the pregnancy was out of wedlock.

There was some discussion as to when she would go and the employer said that he would pay her three months' salary upon termination of her employment. When the employer could not find another au pair to replace her, he invited her to continue working for another two months, which she did. According to the employer it had ultimately been a consensual termination as she had accepted that her services would be terminated on the basis he had discussed with her.

On the facts presented, the court found that there had been no agreement during the pre-employment interview. Even if there had been such an agreement, the employer's world views were inconsistent with the constitution and an agreement of that nature would be contra bonos mores (against the legal convictions of the community) and thus unenforceable. According to the court, the fact that she had stoically accepted her fate at the time of the discussion surrounding the termination of her employment did not mean that the termination was consensual. The court found that the termination amounted to a dismissal. But could the dismissal be justified on the basis of the inherent requirements of the job?

"The court found that not being pregnant or a parent could not be regarded an inherent requirement of the job," writes Truter. "Her dismissal was therefore based on unfair discrimination for a reason related to her pregnancy. This made it an automatically unfair dismissal." The court awarded the au pair the equivalent of 12 months' compensation for unfair dismissal and a further R25 000 for impairment of her dignity and self-esteem. In considering the amount of the compensation, the court took into account the fact that the employer had tried to be fair and did what he considered just, even though his family values did not "accord with the current societal norms as expressed in the Labour Relations Act".

This case illustrates how an employer might still fall foul of the law without fully realising it, writes Truter. "It will probably take some time for some employers to fully appreciate the constitutional principles underpinning our labour laws.

"Contact Labourwise via www.labourwise.co.za or e-mail info@labourwise.co.za.