Did you know? Companies not required to pay maternity leave under SA law

Landmark case orders pregnant employee should have been placed in alternative position as she works in high-risk jobs and was not.

In a recent decision, the Labour Appeal Court found that a mining house unfairly discriminated against an employee on the grounds of pregnancy.

The employer had failed to place her in an alternative position prior to maternity leave because it was her second pregnancy in three years.

Lawyer Lizle Louw, a partner at Webber Wentzel, talks to Refilwe Moloto about this important ruling by the Labour Appeal Court over unfair discrimination on the grounds of pregnancy.

Louw says this case underscores the importance for employers to comply with their policies to comply with regard to maternity leave.

In this case, the employer's policy recorded that employees that fall pregnant twice in a three-year period, will not be entitled to paid maternity leave for the second pregnancy.

Lizle Louw, Partner - Webber Wentzel

But, the policy does say all such pregnant employees must be placed in alternative positions if they work in high-risk jobs, she explains.

This employee was not placed in an alternative position when there actually was one available.

Lizle Louw, Partner - Webber Wentzel

The Labour Appeal Court in its judgment found that the reason for not doing so was due to this being the complainant's second pregnancy in three years, which the court argued amounted to unfair discrimination.

There is nothing in the Basic Conditions of Employment Act under South African law that prevents companies from making policy decisions with regard to the timing of employees having children, she explains.

The Basic Conditions of Employment Act in South Africa determines that maternity leave is always unpaid. So if an employer provides paid maternity leave it provides above and beyond what ur law currently provides - and therefore they can make policy decisions like this one.

Lizle Louw, Partner - Webber Wentzel

So an employer paying any maternity leave is their choice.

Maternity leave is four consecutive months and may be taken anytime from four weeks before the date of birth, and may not return to work until six weeks after the date of birth unless certified to do so.

But the four-month period is unpaid. For that period the employee may however claim UIF.

Lizle Louw, Partner - Webber Wentzel

There have been some changes to rights regarding parental leave and adoption leave, she says.

This extends leave entitlement to people who are not your traditional husband and wife or man and woman having a child to provide more leave in that situation. That is also however unpaid.

Lizle Louw, Partner - Webber Wentzel

She says the fact that maternity leave does not legally have to be paid by employers has yet to go before the court in South Africa.

Listen to the interview below:

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