The Employment Equity Act (EEA) is very clear about the fact that one may not discriminate against an employee if she falls pregnant. However, when it comes to the practical application of the principle, there can be some crossed wires.
In Impala Platinum Ltd v Jonase & others (Case no: J 698/15, 24 August 2017) two employees, both women mineworkers employed underground at Impala Platinum, had fallen pregnant.
The company’s health and safety policy stated that the company must attempt to place pregnant employees in suitable alternative employment on the surface where this was reasonably practicable. This is to prevent any risk to their health or to that of their unborn child/children.
The company tried to do find alternative employment but there was nothing suitable available. The employees were given four months’ paid maternity leave. The option of a further six months’ unpaid leave was given.
The employees claimed that they were the victims of unfair discrimination based on their pregnancy. They argued that whereas other pregnant employees had been placed in alternative surface jobs, they were denied this opportunity.
The Commissioner at the Commission for Conciliation, Media and Arbitration (CCMA) concluded that an employer can direct employees to take unpaid leave where it is unable to secure an alternative for them. The Commissioner was of the view that the employer’s failure to find alternatives was unfair to the employees. This constituted discrimination as the sole reason for this was the employees’ pregnancy.
The conclusion was that they were treated differently from other pregnant employees. In addition, this differentiation amounted to unfair discrimination.
The employer appealed to the Labour Court (LC). The Court concluded that the Impala’s policy did differentiate between pregnant employees who had the required skills to be placed in any of the available alternative positions and those who did not. This differentiation was not based on a prohibited ground (for example, pregnancy). It was based on the application of the employer’s health and safety policy in the context of its existing operational framework.
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With the amendments to the EEA, which have been enacted since the Act was first instituted, there have been a lot of instances in which unfair discrimination has been alleged.
Make sure that your company’s employment equity affairs are in order. Contact Thembi Chagonda – and the Global Business Solutions employment equity team – to see how we can help. Follow this link to contact us.