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Our Constitution and labour laws protect pregnant employees against unfair discrimination. But can an employer and employee enter into an agreement that employment will be terminated if the employee falls pregnant?

According to the Labour Relations Act the dismissal of an employee due to her pregnancy, or for a reason related to her pregnancy, is based on unfair discrimination and renders the dismissal automatically unfair. One might think that the parties could from the outset enter into an agreement that employment would terminate if the employee falls pregnant. Due to the imbalance of power in the employment relationship and the vulnerability of an employee in these circumstances, it is not such a simple matter.

In the labour court case of Wallace vs Du Toit, the employer had employed an au pair to take care of his two young children. After two years the au pair fell pregnant and her employment was terminated. According to the employer it had been verbally agreed during the pre-employment interview that if the au pair had children of her own, her employment would lapse by virtue of a “resolutive condition”. The reason, according to the employer, was that her loyalties to his children would be divided if she had children of her own. The au pair disputed this, although she did admit that she had truthfully told him at the time of her employment that she was single and did not intend having children.

When the au pair said that she was pregnant the employer congratulated her, but told her that her services would have to be terminated. According to her evidence, the employer found it objectionable that the pregnancy was out of wedlock. The understanding was that the employer’s children would not be told of the pregnancy. There was some discussion as to when she would go and the employer said that he would pay her 3 months' salary upon termination of her employment. When the employer could not find another au pair to replace her, he invited her to continue working for another two months, which she did. According to the employer it had ultimately been a consensual termination as she had accepted that her services would be terminated on the basis he had discussed with her.

On the facts the court found that there had been no agreement during the pre-employment interview that her services would be terminated if she falls pregnant. However, even if there had been such an agreement, the employer's world views were inconsistent with the Constitution and an agreement of that nature would be contra bonos mores (against the legal convictions of the community) and thus unenforceable. According to the court the fact that she had stoically accepted her fate at the time of the discussion surrounding the termination of her employment did not mean that the termination was consensual. The court found that the termination amounted to a dismissal.

But could the dismissal be justified on the basis of the inherent requirements of the job? The court found that not being pregnant or a parent could not be regarded an inherent requirement of the job. Her dismissal was therefore based on unfair discrimination for a reason related to her pregnancy. This made it an automatically unfair dismissal. The court awarded her the equivalent of 12 months’ compensation for the unfair dismissal and a further R25000 for the impairment of her dignity and self-esteem. In considering the amount of the compensation, the court took into account the fact that the employer had tried to be fair and did what he considered just, even though the family values of the employer did not "accord with the current societal norms as expressed in the Labour Relations Act".

This case illustrates how an employer might still fall foul of the law without fully realising it. It would probably take some time for some employers to fully appreciate the constitutional principles underpinning our labour laws.

Written by Jan Truter of

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