In a 2022 survey conducted by Stats SA, results revealed that the majority of children born in South Africa between 2017 and 2021 were born in the month of March. With the trend expected to continue, the results infer that the majority of expecting mothers would commenced their maternity leave in the early months of the year. In light of the aforegoing, employers contemplating the termination of expecting mothers ought to exercise great care and consideration when doing so.
In the matter of Brandt v Quoin Rock Wines  C152-2021 (LC), the Cape Town Labour Court was tasked with deciding whether Quoin Rock Wines (the Respondent) had unfairly dismissed Melissa Brandt (the Applicant) as a result of her pregnancy.
During September 2019, the Applicant fell pregnant and was due to give birth on 11 June 2020. On 3 January 2020, the Applicant informed the Respondent’s Chief Executive Officer (CEO), Denis Gaiduk, that she would be tendering her services to the Respondent until 31 May 2020, whereafter she would commence her maternity leave.
On 14 May 2020, the Applicant was scheduled to do a handover of her work to her assistant. However, due to complications with her pregnancy, as well as her high blood pressure, she was unable to do so.
On 12 May 2020, the Applicant was admitted to hospital and on 21 May 2020, her child was born. Her new born child remained in hospital until 12 June 2020. During this period, the Applicant maintained contact with the Respondent and tendered her services remotely.
At the time of the birth, South Africa was under level 5 lockdown restrictions and no visitors were allowed at hospitals, thus rendering the handover with the Applicant’s assistant impossible.
During the proceedings before the Labour Court, the Respondent’s CEO testified that there was a lack of clarity regarding the Applicant’s maternity leave, and that he had expected her to facilitate a proper handover prior to her going on maternity leave. The Respondent’s CEO further testified that from time-to-time, he was unable to reach the Applicant notwithstanding that he needed her to be in the office in order to discuss daily work, as he was of the view that emails were not a sufficient method of communication.
Upon conclusion of her maternity leave, the Applicant returned to work and was informed that her position had become redundant as a result of her work having been apportioned between the CEO and other employees of the Respondent. The Applicant was then furnished with a Retrenchment Notice as required by the Labour Relations Act 66 of 1995 (the LRA). Notwithstanding her opposition to the retrenchment process, the Applicant was ultimately retrenched due to her refusal to take up employment with a sister company of the Respondent at a reduced salary.
In considering the applicable legal position, the court considered the provisions of the Basic Conditions of Employment Act 11 of 2002 (the BCEA), the LRA, as well as the dictum in the matter of De Beer v SA Export Connection CC t/a Global Paws [(2008) 29 ILJ 347 (LC)].
According to section 187 (1)(e) of the LRA, “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.”
The court reiterated the fact that section 187 places a burden on the employee to adduce evidence that the dismissal was automatically unfair, and that the employer has to prove that the dismissal is not automatically unfair.
While section 25(1) of the BCEA states that expecting mothers are entitled to four consecutive months of maternity leave, section 25(3) is clear in that “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.” In essence, the Applicant could not have been expected to tender her services to the Respondent for the first six weeks after the birth of her child.
In this matter, the court found the Applicant to have been a credible witness, and that the Respondent lacked credibility due to the fact that it failed to provide financial records as well as substantive evidence to demonstrate that the Applicant’s retrenchment was necessitated by its operational requirements.
In arriving at its decision, the court found that the Respondent failed to properly understand the legal position pertaining to maternity leave, and that the Respondent’s anger towards the Applicant for being unavailable when it needed her, was an example of such lack of comprehension.
Ultimately, the court found that the Applicant’s dismissal was related to her pregnancy and consequently automatically unfair, and therefore ordered the Respondent to compensate the Applicant in the amount of 16 months’ remuneration (R800 000.00).
Employers ought to ensure that they do not terminate the services of expecting mothers on account of their pregnancy, as such termination may fall squarely within the realm of an automatically unfair dismissal, and further attract a rather hefty compensation order. In circumstances where retrenchment is unavoidable, employers ought to ensure that the termination of the services of a female who is on maternity leave, is both substantively and procedurally fair.