So. Africa: Landmark judgement for pregnant employees performing high-risk work
Author: Lizle Louw, Business Tech (South Africa) , Published on: 27 July 2020
‘New case deals with discrimination and pregnancy in the workplace in South Africa’ 25 July 2020
In a recent decision, the Labour Appeal Court (LAC) found that a mining house unfairly discriminated against an employee on the grounds of pregnancy, notes Lizle Louw, a partner and Shane Johnson, a professional support lawyer at Webber Wentzel. The employer had failed to place her in an alternative position prior to maternity leave because it was her second pregnancy in three year, said Johnson. The employee was employed as an underground heavy-duty truck driver by Samancor Chrome Ltd (Eastern Chrome Mines).She fell pregnant for the second time in a three-year period and informed Samancor Chrome on 28 May 2014. In line with the employer’s policies, she was relieved of her hazardous responsibilities underground with immediate effect. She was to commence maternity leave on 29 November 2014.
…The arbitrator also ordered the employer to pay the employee compensation of R20,000 for the impairment of her dignity and self-esteem, as well as damages equivalent to 5 months’ remuneration. Samancor Chrome appealed to the Labour Court, which found that the employer had discharged its obligation to prove that no discrimination took place and that the employee was placed on unpaid leave as suitable alternative employment was not available…The LAC, however, found that the employer differentiated the employee from other employees on the basis of her pregnancy for a second occasion in a three-year cycle. The employer failed to show that the discrimination was rational and not unfair (or otherwise justifiable).
…“This case, however, turned on the fact that the employee was not afforded alternative employment for the period leading up to maternity leave, when another pregnant employee was afforded alternative employment a few days after the first employee was placed on unpaid leave.” This judgement is important for employers in industries where pregnant employees perform high-risk work and must be removed from their workplaces pending maternity leave, the legal expert said. “Employers should take care to be fair in implementing their policies dealing with alternative placement of pregnant employees.”
Related companies: Samancor