If one of your female employees informs you that she is pregnant, and does work that could be harmful to her unborn child, you are obliged to find alternative, safer employment for her for the duration of her pregnancy.
The case of Samancor Chrome Ltd (Eastern Chrome Mines) v National Union of Mineworkers obo Mahlangu and others – (2019) 28 LC 6.12.1 also reported at [2019] 1 BLLR 82 (LC) deals with a situation where a pregnant employee, who was a heavy-duty truck driver, was placed on unpaid leave when she told her employer she was pregnant.
The employee’s maternity leave was only due to start six months after she had been put on leave. Her case was that being placed on unpaid leave amounted to discrimination on the ground of pregnancy, which is one of the grounds listed in the Employment Equity Act (EEA).
The company’s case was that the employee had been placed on unpaid leave because it was unable to find her suitable alternative employment for this period and that it had acted according to its maternity leave policy.
The arbitrator found that the employer had discriminated against the employee because this was her second pregnancy in three years. This led to her being treated differently from other pregnant employees. She was awarded R20 000 in compensation and it was ruled, in the award, that the company had to amend its maternity policy.
On appeal (discrimination cases are subject to appeal) the Labour Court found that the dispute centred on the reason why the employee had been placed on unpaid leave. This main issue was whether the company’s conduct was justifiable in terms of section 11(1)(b) of the EEA.
The company’s maternity leave policy was aimed at protecting pregnant and breastfeeding employees and to comply with the prohibition on requiring or permitting such employees to perform work dangerous to their health or that of their child. Paid maternity leave was granted only once during a three-year cycle to employees and maternity leave for a second pregnancy during that period was unpaid.
The Court found that the true reason why the pregnant employee had been placed on unpaid leave, before the commencement of her maternity leave, was that no alternative position could be found for her. Even though another pregnant employee had been found alternative work did not mean that the employee had been discriminated against. The Commissioner had erred by finding to the contrary.
The Court held further that the CCMA Commissioner had exceeded his powers by ordering the company to redraft its policy for pregnant employees because that had never been part of the relief sought by the employee.
The appeal was upheld.
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