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September 14, 2012

Pregnant, unmarried – and dismissed.

“There are 368 000 women between the ages of 15 and 21 with a baby under the age of two. 88% of them are single. (AMPS 2011)” – Eighty20’s Fact-a-Day at http://www.eighty20.co.za/blog/. 

Dismissal of an employee for any reason relating to her pregnancy is automatically unfair, and exposes the employer to a potential compensation award of up to 24 months’ remuneration (double the normal maximum).

A recent Labour Court judgment shows just how wide this protection is (in particular that it extends to all women, married or not), and just how dangerous it is for employers to lose sight of it.

The facts 

  • The employer’s business was carried on at the premises of its landlord, a church mission, whose code of conduct prohibited any unmarried woman from falling pregnant.
  • An unmarried employee fell pregnant.  She had received a copy of the code of conduct and had been told that she would have to leave the premises if she contravened it.
  • She was accordingly denied access to her place of work by the landlord’s security guards.
  • Her employer refused to intervene with the mission on her behalf and her employment was terminated.

The outcome 

The employee had to prove two things:

  1. That she had been dismissed.  Finding that an employer must “receive an employee into service” (i.e. accept a tender of services), the Court held that in this case the employer could not hide behind the mission’s rules, and that its refusal to intervene on her behalf with its landlord amounted to a dismissal.
  2. That her dismissal was related to her pregnancy.  Our law requires only that the employee produces evidence “sufficient to raise a credible possibility that an automatically unfair dismissal has taken place” – the onus then shifts to the employer to show that there was in fact another, lawful, reason for dismissal.  Commenting that: “Protection from dismissal by reason relating to pregnancy is not a preserve of married women”, the Court had no difficulty in finding for the employee in this regard.

Employers – don’t get caught between a rock and a hard place!

If anything in your lease threatens your employee’s rights, it’s you that will carry the can – not your landlord, and not your employees.  Take advice in doubt!

© DotNews, 2005-2012. This newsletter is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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