Look after employees who have recently
given birth


BY   Ivan Israelstam, Chief Executive of Labour
Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973
or on e-mail address: [email protected].
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Pregnant employees are strongly protected under South
African law. There are no fewer than six pieces of legislation that require
employers to treat pregnant and post-pregnant employees with the greatest of
care. One of these pieces of legislation is the Code Of Good Practice On The
Protection Of Employees During Pregnancy And After The Birth Of A Child (The


The Code, issued in terms of the
BCEA, is aimed at protecting pregnant and post-pregnant employees, and obliges
employers to:


q  Encourage
women employees to inform the employer of their pregnancy as early as possible
so as to ensure that the employer can assess risks and deal with them


q  Evaluate
the situation of each employee who has informed the employer that she is


q  Assess
risks to the health and safety of pregnant or breast-feeding employees within
the workplace


q  Implement
appropriate measures to protect pregnant or breast-feeding employees


q  Supply
pregnant or breast-feeding employees with information and training regarding
risks to their health and safety and measures for eliminating and minimising
such risks


q  Maintain
a list of jobs not involving risk to which pregnant or breast-feeding employees
could be transferred.


Employer should note that, even
where an employee who has already given birth is 100% well, the illness of the
newborn baby entitles the employee to time off to look after the child. In the
case of De Beer vs SA Export Connection cc t/a Global Paws (2008, 1 BLLR 36) the
employee gave birth to a twin and took one month’s maternity leave by
agreement. As the babies were both ill by the time the one month maternity
leave period was up, the mother applied for another month off. The employer
granted her only two more weeks’ leave and, when she did not return to work
thereafter, she was dismissed.


The employee referred the matter
to the Labour Court claiming that the dismissal was automatically unfair
because she had been fired for reasons related to her pregnancy. That is,
Section 187 of the Labour Relations Act (LRA) classifies a dismissal as
automatically unfair if the reason for the dismissal was related to the
pregnancy of the dismissed employee. The employer argued that the illness of
the children did not relate to the pregnancy. That is, it argued that the
phrase in the LRA “reasons relating to pregnancy” refers to the mother herself
and not to the new born children.


The Labour Court decided that:


the phrase in the LRA “reasons relating to
pregnancy” refers not only to the mother herself but also to the new born
children and to the mother’s right to nurture them


the agreement entered into by the parties
limiting the maternity leave to one month was null and void


the employee was legally entitled to take the remainder
of her maternity leave to look after her babies


the dismissal was automatically unfair


the employer was to pay the employee 20 months’
remuneration in compensation plus the legal costs of the employee.


The Basic Conditions of
Employment Act (BCEA) currently gives employees only three days per year paid
leave to attend to family responsibility problems such as sick children. In the
De Beer case the employee was not given permission to be off from work after
her extra six weeks’ leave were up. It is possible that the employer believed
that it had been generous enough in giving the employee substantially more
leave than the three days allowed under the 
family responsibility leave section of the BCEA. However, the Court found
that the employee did not need specific permission to be off work because
looking after newborn babies falls under maternity leave (not under family
responsibility leave or any other type of leave), and that working mothers are
automatically entitled to four months maternity leave. This applies even if the
employee has contractually agreed to take less than the four months she is
entitled to. The reason for this is that any agreement that is contrary to the
law is an invalid agreement.


Due to the substantial legal
protections of pregnant employees employers cannot afford to treat them as they
believe is fair. Instead, employers need to utilise the services of labour law
experts to devise and implement detailed strategies for ensuring the welfare of
working mothers and for minimising the effect of motherhood on workplace
productivity without breaking the law.


To book for our 7 June seminar in
Johannesburg on CHAIRING DISCIPLINARY HEARINGS please contact Ronni via [email protected] or



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