There are various rights and benefits protecting a pregnant employee and her right to maternity leave. It is the duty of both parties to ensure that they comply with the laws as stipulated and employers should be very cautious if they wish to dismiss a pregnant employee.
In any employment contract, the maternity provisions should always be stipulated. If they are not, it is the duty of the employee to bring it under the attention of the employer.
There are certain instances where an employee is dismissed due to the pregnancy. This is seen as an automatically unfair dismissal and will be elaborated on fully below.
An employee will be entitled to a total of 4 months unpaid maternity leave. This can be taken a month prior to the birth date. The employee must inform the employer by way of written notice a month prior to when she will be taking her maternity leave.
Maternity leave is therefore in terms of legislation unpaid leave, unless the employer and the employee has agreed differently in writing. If the parties did not agree in writing to different terms the employee would have to take unpaid leave.
How does UIF work?
An employee may claim her maternity benefits from the Unemployment Insurance Fund if she is a contributor thereto. The application to be able to claim maternity benefits must be made 8 weeks before the birth date. if this is not done within the stipulated time, the labour department will accept a late application if good cause has been shown.
It does sometimes happen that the employer pays a percentage of the maternity benefits. This can be done if an employer wishes to pay these benefits and there is no provision which prevents them from doing so. It is important to take note that the employee cannot receive more than what her monthly salary is. This means that between the UIF and the employer only 100% of the employees salary may be paid to her.
Is your annual leave influenced during maternity leave?
An employee on maternity leave is deemed to still be in the employ of the employer, which means that the employee’s position will be available once the employee returns from maternity leave.
It can be argued that the mere fact that an employee has taken unpaid leave does not constitute unemployment and therefore the employee is still entitled to the benefits in terms of the employment contract, such as annual leave.
If both parties agree in writing that leave would not accumulate however, there will be no claim with regards to leave not being granted.
If a pregnant employee is dismissed based on her pregnancy or any other reason which relates to her pregnancy, it would constitute an automatically unfair dismissal. The employee would be entitled to refer the matter to the CCMA or relevant bargaining council for adjudication. It is important to note that an automatic unfair dismissal constitutes compensation of a maximum of 24 months if the CCMA finds in favour of the employee.
It would be important for the aggrieved party to ensure that her case can be proven at the CCMA and must ensure that the reason for the dismissal was indeed based on the pregnancy and not for any other dismissable offense.