Employers Be Warned – Dismissal Related to Pregnancy Automatically Unfair
Recently, the Cape Town Labour Court decided on a matter where the employer Quoin Rock Wines, unfairly dismissed Melissa Brant as a result of her pregnancy.
The court in the case Brandt v Quoin Rock Wines  C152-2021 (LC), ordered Quoin Rock Wines to pay compensation the equivalent of 16 months’ salary, R800,000, to Melissa Brant for an unfair dismissal relating to pregnancy. The applicant, Brandt, sought compensation for an unfair dismissal relating to her pregnancy and in the alternative, asked that the court find that her dismissal, for operational requirements, was a substantively and procedurally unfair dismissal. The case arose when the applicant Melissa Brandt, who was employed by the respondent Quoin Rock Wines as its Financial Manager since 2013 was dismissed in 2020.
The applicant became pregnant in September 2019 and was due to give birth on 11 June 2020. She informed the CEO, Denis Gaiduk, the respondent, on 3 January 2020 that she would work until 31 May 2020. She was scheduled to do a hand over of her work to her assistant on 14 May 2020 but was unable to do so due to complications with the pregnancy, namely high blood pressure and problems with the condition of her unborn child. She was admitted to hospital to be monitored on 12 May 2020 and the baby was born on 21 May 2020. At the time the country was facing level 5 lock down restrictions and no visitors were allowed at the hospital.
The respondent testified that there was a lack of clarity regarding the applicant’s maternity leave and that he expected a proper handover to have been done before the applicant went on maternity leave and this had not happened. He testified that he was unable to reach her from time to time and that he needed her to be in the office in order to discuss daily work because he believed that emails were not a sufficient way to communicate. The respondent testified that Brandt’s position had become redundant because the company was not doing well financially due to the lockdown and needed to be restructured. The applicant was informed that she was retrenched when she wanted to return to work after maternity leave.
The court stated that section 187 of the Labour Relations Act 66 of 1995 is a provision aimed at protecting women by recognizing the equal status of women in the workplace. According to section 187 (1)(e) of the Labour Relations Act, “a dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 9 or, if the reason for the dismissal is – the employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy.” This means that employers need to make the necessary arrangements to keep a woman’s job open for her while she is on maternity leave.
The court also reiterated the fact that section 187 of the Labour Relations Act places a burden on the employee to adduce evidence that they were subject to an automatically unfair dismissal and the employer has to prove that the dismissal is not automatically unfair. The court found the applicant to be a credible witness and found that the respondent’s credibility was lacking due to the fact that the respondent failed to provide the exact figures regarding the financial position of the company and any substantive evidence to demonstrate that the retrenchment was necessary for operational requirements.
The court found that the respondent failed to comprehend the law regarding maternity leave and that the respondent’s anger towards the applicant for being unable to answer calls whenever he needed her after the discharge of her premature baby from hospital is an example of his lack of comprehension. According to section 25(1) of the Basic Conditions of Employment Act 11 of 2002 an employee may take maternity leave four weeks before her due date. Pregnant women are entitled to four consecutive months of maternity leave. According to section 25(3) of the Basic Conditions of Employment Act, “No employee may work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so.” This meant that the applicant could not have been expected to work for the first six weeks after the birth of her child.
The court found that Brandt’s dismissal was related to her pregnancy and was automatically unfair. Employers should become well acquainted with the law relating to maternity leave and put policies in place to accommodate pregnant employees and those on maternity in order to avoid unfair labour practices.
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