An employee's right to maternity leave could pose operational problems for an employer, particularly for a small business. This conflict of interest is often a recipe for disaster. But how far can the employer go to protect its business interests and what are the limits the employer and employee can agree to?

In the matter of De Beer v SA Export Connection cc the Labour Court considered a matter involving a small business whose total number of employees varied from three to four employees. Two of those employees were sisters. The one sister had a planned pregnancy and informed the employer about this. The other sister informed the employer that she was pregnant one or two weeks after she had been appointed permanently. She was not married and it was an unplanned pregnancy.

The employer was concerned about the effect their joint absence would have on the business. The employer called a meeting, which was attended by the two sisters, their parents and the one sister's brother-in-law. According to the employer it was agreed that the sister with the planned pregnancy could take four months maternity leave, whereas the newly appointed sister with the unplanned pregnancy would return to work within one month after giving birth.

The employee with the unplanned pregnancy had twins. She had great difficulty coping because the babies had feeding problems and were suffering from colic. The employee approached the employer with the request that she be given an additional month's maternity leave. The employer offered to give her two extra weeks, but this was unacceptable to the employee. The employer then gave her a letter terminating her employment. The employer's argument was that the employee had breached the agreement to return to work one month after the birth of the child. According to the employee it had also been agreed at the meeting that other arrangements would be made if the employee or the baby were not well after the birth.

The Court pointed out that, irrespective of what was agreed upon, such an agreement would in any event fall foul of the Basic Conditions of Employment Act. The agreement was therefore invalid. Furthermore, the Labour Relations Act states that where a dismissal is based on a reason related to pregnancy, the dismissal would be "automatically unfair". Although the difficulties in this case did not arise during the pregnancy, but after the birth of the children, the court nevertheless held the view that the dismissal was related to the pregnancy. The Court's interpretation of the facts was that the employee had been punished for her unplanned pregnancy.

The maximum compensation to be awarded to an employee whose dismissal is found to be automatically unfair is the equivalent of 24 months' remuneration. The court felt that the treatment endured by the employee had been offensive and degrading. Although the employee found employment seven months after her dismissal, earning double the salary that she had earned prior to her dismissal, the court still awarded her the equivalent of 20 months' remuneration.

It is clear from the facts of this case that the employer genuinely felt justified in acting as it did. The court mentioned that the relevant provisions of the Labour Relations Act form part of social legislation passed for the specific protection of women and to put them on an equal footing with men. According to the Court, the considerable burden that this places on employers is the price to be paid for the social and legal recognition of the equal status of women in the workplace.

This is yet another case that illustrates how easily an employer's could fall foul of the law without fully realising it. Employers must therefore resist the temptation of entering into agreements with their employees, which are in conflict with labour legislation.

Written by Jan Truter of www.labourwise.co.za

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