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With child, without pay 

by Lizle Louw, Dean-Michael Hoskins

Published: November, 2017

Submission: November, 2017

 



In the Labour Court judgment, dated 7 November 2017, of Manyetsa v New Kleinfontein Gold Mine (Pty) Ltd, a pregnant employee claimed she was unfairly discriminated against due to the application of the maternity leave policy of her employer, a gold mining company. In terms of the policy, pregnant employees who have to be removed from high-risk areas during pregnancy, for whom suitable alternative employment cannot be secured during the pregnancy, are placed on unpaid suspension pending their maternity leave, which is partially paid.


Background

The policy provides for the following:


  • “risk work” is any work where there is exposure to physical, chemical or biological hazards and which is considered potentially dangerous to the health of the pregnant employee or the unborn child; 
  • the company must provide risk-free, alternative suitable work for pregnant employees who perform risk work; 
  • if the company is unable to offer risk-free, alternative, suitable work for the duration of an employee’s pregnancy and six months after giving birth, the employee must go on extended unpaid maternity leave; and 
  • the pregnant employee is entitled to four months’ partially paid maternity leave.

The employee was (and still is) employed by the company as an electrician in the gold refining plant. Working in this environment presents a high risk to the health of pregnant employees and their unborn children as they would, inter alia, be exposed to cyanide and radiation. In 2014, the employee fell pregnant and, in accordance with the policy, the employer removed her from her position in the plant. After investigation, no suitable alternative positions could be found for the employee and she was placed on unpaid suspension, prior to her maternity leave commencing.

Judgment

The Labour Court had to decide whether the policy is in contravention of the Basic Conditions of Employment Act, 1997, as amended (the “BCEA”) and the Employment Equity Act, 1998, as amended (the “EEA”).

Section 26 of the BCEA provides that:


  1. employers may not permit pregnant employees to perform hazardous work; and 
  2. during the employee’s pregnancy, and for a period of six months after the birth, the employer must provide the employee suitable, alternative work if the work poses a danger to her health and if it is practicable to do so.

The employee claimed that the policy contravened section 26(2) of the BCEA because that provision guaranteed her alternative employment on no less favourable terms. The employer claimed that it can only provide suitable alternative work if it is practicable to do so, and that it had not been practicable in this case.  

The court found that various factors must be taken into account in deciding whether “suitable alternative employment” is available. These factors are, among others, whether the position is available, whether the position is a suitable alternative for that specific employee insofar as far as experience and qualifications are concerned and the terms and conditions associated with the alternative position. The court stated: 

“In the end, a proper assessment needs to take into account that, what may be considered as an alternative, may not necessarily be suitable for that employee, and in the same vein, what might appear suitable might not necessarily be an alternative for the employee.”  

In this case, the employee averred that she could have been placed in four alternative positions. However, she was not qualified for the one position, she refused to take part in an interview process for the second position because the remuneration associated with that position was lower than her remuneration as an electrician and the other two positions did not exist in the employer’s labour plan. Ultimately, there was therefore no suitable alternative employment available.

The employee further contended that the policy was in contravention of the EEA as she was being unfairly discriminated against on the grounds of her pregnancy, which is prohibited by section 6(1). This determination by the court involved a balancing of pregnant employees’ rights not to be unfairly discriminated against and their employers’ obligation to ensure a safe and healthy working environment for the employees and their foetuses. The court found that in light of the fact that the policy did not contravene the BCEA, it would be unfounded for the policy to contravene the EEA, especially since it was common cause that the policy was modelled on the BCEA. The court, however, specifically mentioned that the constitutionality of the BCEA and the EEA was not placed before it to decide on.

Further, the extended unpaid maternity leave was necessitated by the inherent requirements of the employee’s duties; a valid defence in terms of section 6(2) of the EEA. Thus, as the employee is an electrician who undertakes hazardous work, once she disclosed her pregnancy, the policy, as well as the BCEA, required her to be removed from that work. This is a statutorily sanctioned and reasonable process arising from the fact that the employee no longer met the inherent requirement of her job as an electrician. 


Conclusion


In the absence of a constitutional challenge to the provisions of the BCEA, this judgment establishes that maternity leave policies that require a period of unpaid maternity leave when suitable alternative employment cannot be found are in accordance with current legislation. The judgment also establishes that employers do not have to create positions for pregnant employees who have to be removed from high-risk areas and sets guidelines as to what constitutes suitable alternative employment in these circumstances.

ENSafrica represented the employer in this matter.


 


 


 

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WSG's members are independent firms and are not affiliated in the joint practice of professional services. Each member exercises its own individual judgments on all client matters.

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