Dismissal for pregnancy or a reason relating to pregnancy

Sep 22, 2008


In De Beer v SA Export Connection CC t/a Global Paws the employee, De Beer, was
employed by the employer as a travel consultant. She fell pregnant and agreed with the
employer to return to work a month after she had given birth (which in any event was illegal
under the BCEA). She subsequently gave birth to twins who suffered from colic. Two to
three days before the employee was required to return to work, she requested that she be
given a further one month off to stay with her twins at home. The employer was prepared to
grant her an extra two weeks, which she refused to accept. Her services were then
terminated for alleged misconduct. She referred a dispute to the Labour Court and
contended that her dismissal was automatically unfair.

The court noted that the particular provision in the LRA dealing with the prohibition of
dismissal because of pregnancy ‘or a reason related to pregnancy’ (s 187(1)(e)) must be
seen as part of social legislation passed for the specific protection of women and to put them
on an equal footing with men. The court acknowledged that while it is often considerable
burden to an employer to have to make the necessary arrangements to keep a woman’s job
open for her while she is absent from work to have a baby, this is a price that has to be paid
as part of the social and legal recognition of the equal status of women in the workplace. If
an employer dismisses a woman because she is pregnant and is not prepared to make the
arrangements to cover her temporary absence from work, the dismissal would be
automatically unfair. The dismissal will not escape being automatically unfair by the
argument that the woman is being dismissed not because of her pregnancy, but because of
her unavailability for work that results from her pregnancy. In the same way, employers
cannot argue that the reason is economic because of the extra expenses that it must incur to
provide temporary cover for an absent employee.

Turning to the meaning of the phrase ‘or a reason related to pregnancy’, the court held that
there were no rigid rules concerning the events or circumstances that may fall within the
scope of the phrase and each case had to be determined on its own facts. However, it was
broad enough to cover the situation, present in this case, where a mother who was unable to
utilise her full maternity leave had twins who suffered from colic. This could be said to be a
reason related to her pregnancy.

The case is not authority for the proposition that every mother who gives birth to a sick child
while having the benefit of four months’ maternity leave would be entitled to stay away from
work for longer. As was stated above, each case will depend on its own facts. What set this
case apart was the fact that the employer in fact punished the employee for falling pregnant
in that she was only given a month’s maternity leave, in conflict with the maternity leave
provisions of the BCEA. Had the applicant been allowed to use her full four months maternity
leave in terms of the BCEA, she would not have been dismissed and she could have spent
time with her colic twins. Her dismissal therefore was clearly a reason related to her
pregnancy. The court found that the treatment of the employee was degrading and deeply
offensive and ordered the employer to pay compensation equal to 20 months’ salary, as well
as her costs.


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