A pregnant employee or one on with a new born baby has an inherent right to her job provided that:
· She behaves and works according to the employer’s standards
· She has not been so incapacitated due to illness or injury that she is unable to do her duties
· Retrenchment is not justified.
In the case of Mnguni vs Gumbi (2004 6 BLLR 558) the receptionist in medical practice claimed that she was dismissed because she complained that she felt tired while she was in the advanced stages of pregnancy. The employer claimed that the employee had not been dismissed but only sent home. However, the Labour Court found that:
· The employer had employed a new receptionist the very next day
· The employer had not called on the employee to return to work when the opportunity arose
· This suggested that the applicant had in fact been fired
· The dismissal was automatically unfair
· The employer had to pay the employee 24 months’ remuneration in compensation.
In the case of Lukie vs Rural Alliance cc (2004 8 BLLR 769) the employee was dismissed when she told her employer that she needed maternity leave. Her manager told her that she need not return to work after her maternity leave. The employer denied having said this and claimed that the employee had left of her own accord. Neither the employee nor the manager had any corroborating evidence. Because the manager’s testimony was vague and contradictory the Court accepted the employee’s version.
The Court therefore ordered the employer to pay the employee 18 months’ remuneration plus the employee’s legal costs.
These cases suggest that even where evidence of dismissal is not clear, if there is any evidence of an employee being dismissed due to pregnancy, employers cannot expect mercy from the courts. Therefore, where such dismissals are contemplated advice from a reputable labour law expert should be sought.