An employee who falls pregnant is by law entitled to take maternity leave and is protected from dismissal.
The Basic Conditions of Employment Act (BCEA), which set the minimum standards of employment, allows pregnant employees to take a minimum of four months leave.
Maternity leave is one of the so-called core rights that cannot be varied by agreement between an employer and an employee. An employee and employer may not enter into any agreement that reduces the period of maternity. Increasing it should not be a problem.
Section 187 of the Labour Relation Act renders as "automatic unfair" "a dismissal of an employee if the reason for the dismissal is the employee's pregnancy, intended pregnancy, or any reason related to her pregnancy".
However, in practice this section might be difficult to apply. Recently the Labour Court was called to interpret the application of Section 187.
The facts of this case are briefly that an employee agreed with her employer to take one-month maternity leave. After giving birth, the child suffered complications.
The employee asked her employer to extend her leave for a further four weeks in order to attend to her sick child. The employer refused to grant the four weeks for operational reasons and offered to extend the employee's leave for two weeks.
After two weeks the employee did not come back to work and was dismissed. The employee challenged her dismissal because it was for a reason related to her pregnancy.
There are two issues that arise from these facts. Firstly, whether or not the agreement to have one month leave was valid or not. Secondly, is whether section 187 applies in a case where it's a child who's sick or only in cases where an employee experiences complications as a result of birth.
The court found the agreement that the employee would take one month leave to be null and void. The court's decision is consistent with the BCEA, which entitles the employee to take a minimum of four months maternity leave. Such an agreement was in contravention of the BCEA.
With regard to the second issue, the court concluded that section 187 does not apply only to an employee who experiences complications as a result of giving birth, but also when an employee gives birth to a sick child.
Though the court said each case was to be treated on its merit, the effect of the decision is that an employee may not be dismissed for extending her leave to attend to a child born with complications.