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Protecting pregnant employees – cold comfort?

21 November 2017
– 3 Minute Read

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While the legal protections for pregnant women in South African workplaces might seem fair, a court ruling has exposed a gap that only legislative changes in the law are likely to close. On 7 November 2017, the Labour Court ruled that although employers must endeavour to find alternative risk-free work for a pregnant woman doing hazardous work, this does not guarantee suitable employment on terms no less favourable than her usual position.

The lacuna in the law came to light in the matter of Manyetsa v New Kleinfontein Gold Mine (Pty) Ltd. The applicant, Ms Manyetsa, was claiming that the mine’s policy on maternity leave and women in risk areas was not in accordance with section 26(2) of the Basic Conditions of Employment Act (BCEA), which protects employees who are pregnant or nursing a child against performing hazardous work.

In terms of the mine’s policy, employees may be allowed to go on “extended unpaid maternity leave” if the company is unable to offer suitable alternative risk-free work for the duration of the employee’s pregnancy and for six months after the child’s birth. However, the policy emphasises that “every endeavour” must be made to offer suitable alternative risk-free work on terms no less favourable than before.

Ms Manyetsa is a plant electrician in the Metallurgical Department at New Kleinfontein’s Modder East Plant. In May 2014, she informed her supervisor that she was pregnant. Because of the presence of chemicals such as cyanide and ionizing radiation, her area of work was considered to be a health risk. The company accordingly removed Ms Manyetsa from this area and started to seek a risk-free alternative for her.

Various avenues were explored, but none was found to be suitable. For example, a role in the control room was available but it required underground experience and a blasting certificate, which Ms Manyetsa did not have. The role of receptionist was potentially available but the salary was much lower than Ms Manyetsa’s salary as an electrician and she opted out of the interview process. As a result, she was placed on unpaid maternity leave from 3 July 2014 to 20 November 2014, after which she took four months’ paid maternity leave until 22 March 2015.

She then approached the Labour Court claiming unfair discrimination. Judge Tlhotlhalemaje held that the mine’s maternity policy was not in conflict with s26(2) of the BCEA, which requires employers to offer pregnant employees suitable alternative risk-free work “if it is practicable” to do so.

Neither this section of the Act nor the mine’s policy guarantees suitable alternative employment on no less favourable terms. All the policy does is to place an obligation on the company to “endeavour” to offer suitable alternative risk-free work. There is also no obligation in the BCEA or the mine’s policy to place Ms Manyetsa on paid maternity leave.

As such, the court held that the policy was in accordance with the BCEA. The court recognised this was not an ideal position and noted a lacuna in the provisions of the BCEA. However, this is not a matter that can be rectified by the courts and it is up to the legislature to address it.

This case demonstrates that it is imperative for employers to ensure that their policies on maternity leave are in alignment with the BCEA and do not expose them to claims of having discriminated unfairly against pregnant employees.