Pregnancy is no excuse

UNFAIR DISMISSAL: EMPLOYERS AND EMPLOYEES SHOULD KNOW THE LABOUR RELATIONS ACT

Judge gives financial manager R800 000 in compensation.

When you are pregnant and your employer decides to make you redundant, you have rights in terms of labour legislation – as an employer found out when he had to pay an employee R800 000 in compensation for starting redundancy proceedings.

The financial manager earned a gross salary of R50 000 a month at the time of her dismissal on 30 November 2020.

She received in vitro fertilisation treatment as a single person in January 2019 and became pregnant, with a due date of 11 June 2020. She informed the chief executive on 3 January 2020, telling him she would work until 31 May, Jonathan Goldberg, labour law expert at Global Business Solutions, says.

Unfortunately, there were complications with the pregnancy; the woman was admitted to hospital to be monitored and the baby was born on 2 May 2020. She had scheduled to do a handover to her assistant on 14 May but was unable to do so.

She was discharged on 12 June with her baby and had a first handover meeting with her assistant three days later. She informed the CEO she and the baby had to be admitted to the hospital again for a few days.

Her maternity leave was going to be from 1 June to 30 September, but she told the CEO she would revise her situation at the end of August and might consider to start working half day from September.

On 2 July, the CEO finally returned her unanswered calls and yelled at her during the call.

He said he needed a financial manager.

The employee testified she returned to the office on 1 October.

The CEO told her he thought he could not afford her, but mentioned he had not talked to human resources. He said he did not want her at the office because she would confuse staff with her presence and there was no work for her.

She testified she asked him to tell her that in writing to ensure she was not absent without approval.

On a Sunday, she received a message about a meeting the following day and on the Monday, received a notice of retrenchment.

She testified that in the meeting she had said the letter provided was not a mutual settlement agreement and the notice did not refer to the statutory minimum for retrenchment pay.

Under cross-examination, she agreed another employee had taken on additional functions while she was on maternity leave.

The court found the employee was a credible witness and the CEO’s credibility was somewhat damaged by a mistake in the statement of defence about being taken by surprise when the employee arrived on 14 September.

The CEO was unable to clearly recall what he said to the employee when she arrived and downplayed his anger on the phone call, although largely confirming the content and tenor of the call.

He acknowledged he was thankful the employee had worked from hospital when she was admitted, but his testimony reflected his lack of understanding that the right to maternity leave is enshrined in law, Goldberg says.

The employee’s primary claim was that her employment was terminated due to her pregnancy.

According to section 187 of the Labour Relations Act, a dismissal is automatically unfair if the employer acts contrary to section 5 or if the reason for the dismissal is an employee’s pregnancy, intended pregnancy or any reason related to her pregnancy.

The CEO produced no substantive evidence to show her retrenchment was necessary for operational requirements except saying not paying her salary will cut costs. No evidence was tendered about how there would be a cost saving.

Goldberg says the employee did her best in the most difficult of circumstances, while suffering from high blood pressure in hospital before the birth and attending to her child who was in ICU after the birth to perform the essential functions of her job.

The employee provided all the evidence necessary, while her employer could not show that genuine operational requirements were the real reason for the termination of her employment. The CEO’s own evidence signified the relation between her dismissal and her pregnancy.

Goldberg says: “This was a case of automatic unfair dismissal for reasons related to pregnancy.”

The employee wanted compensation and the court had to decide what was fair and equitable. She testified she was unemployed for four months after her dismissal.

The judge said she did have a responsibility to have interacted with the employer about how her maternity leave would be handled.

As the dismissal was automatically unfair, the employer had to pay the employee compensation in an amount equivalent to 16 months salary, R800 000.

He also had to pay the costs of the referral.

A case of automatic unfair dismissal