A sterling caution to employers that use pregnancy as a tool of dismissal

A sterling caution to employers that use pregnancy as a tool of dismissal.

Date: 14 July 2023

By Kegomoditswe Mere

The jurisprudential protection and enhancement of rights of pregnant employees in the workplace has its genesis to the past inequalities that perpetuated discrimination of women on the basis of pregnancy. Central to the democratic dispensation, is the guarantee of equality rights to everyone including pregnant employees in the workplace.  The paradigm in Section 9 of South African Constitution includes pregnancy as part of prohibited ground against unfair discrimination. An array of transformative Legislation has been promulgated into law to reaffirm equality rights of pregnant employees in the workplace.  Notwithstanding this, employers in South Africa seem not to heed to these pieces of legislation to desist from discriminating unfairly against employees on the ground of pregnancy. Pregnant employees are often overlooked regarding benefits in the workplace. Moreover, such employees are more susceptible to dismissal based on their pregnancy.  As recent as 2022 the Labour Court in the matter of Brandt v Quoin Rock Wines C152/2021, had to determine on whether Quoin Rock Wines had unfairly dismissed the Applicant, Melissa Brandt as a result of her pregnancy.

In casu, the Applicant, Melissa Brandt fell pregnant and was due to give birth in June 2020. In April earlier that year she had informed the CEO of Quoin Rock Wines that she would work until May. Prior to her going on maternity leave she would conduct a hand-over session with her assistance however due to experiencing complications regarding her pregnancy, her maternity started a lot earlier than expected during the month of May. Consequently, she could not conduct the hand-over session, as she had to be in hospital until the birth of her child and sometime thereafter, due to health complications. Upon her return at the end of her extended maternity leave, she was issued with a retrenchment notice in terms of the provisions of the Labour Relations Act (LRA) by her employer. Notwithstanding her opposition to the retrenchment process, the Applicant was ultimately retrenched due to her refusal to take up employment with a sister company of the Respondent at a reduced salary.

The Labour Court found that the Applicant was dismissed for a reason related to her pregnancy, which was automatically unfair. The court developed a sterling precedent to caution employers against the use of pregnancy as a tool of discrimination against its employees. Discrimination on the grounds of pregnancy is a standalone basis for discrimination in terms of the Employment Equity Act. The lesson from the judgement is that employers must adopt policies or employment practices that cater for the needs and interest of all employees including pregnant employees. In doing so, the employer would not only retain skilled employees but attract talent from those who aspire to work in a transformed workplace.  If the dismissal of an employee is based on pregnancy of an employee, the jurisprudence laid is that such discrimination is likely not to pass the fairness test and consequently violating various sections of the Employment Equity Act and the Constitution respectively. Following this judgement of Brandt v Quoin Rock Wines C152/2021 pregnant employees may be more successful in their unfair discrimination claim if they are able to prove that such discrimination is based on pregnancy.

Kegomoditswe Mere is a Legal Officer at the CGE