Labour legislation affords a pregnant female employee four consecutive months’ unpaid maternity leave, which may commence at any time from 4 weeks before the expected date of birth or from a date from which a medical practitioner or midwife certifies that leave is necessary for the health of the mother or child. No employee may work for 6 weeks after the birth (whether or not the child is born alive or miscarries), unless a medical practitioner or midwife certifies that it is safe for her to do so. The only obligation on an employee is that she must notify the employer in writing of the date on which she intends to start maternity leave within 4 weeks of such date or when reasonably practicable.
Pregnant or nursing mothers who choose to return to work are also protected. Employers may not employ them in work that is hazardous to the health of mother or child, and if the mother is required to do night work, the employer must offer her suitable alternative employment if there is a threat to her health and if reasonably practicable.
The wages of new and expectant mothers on maternity leave are covered by the State in terms of the provisions of the Unemployment Insurance Act.
An employer may not dismiss a female employee in any circumstances merely because she is pregnant. The dismissal of women on the ground of pregnancy or for a reason related to her pregnancy or intended pregnancy is rendered automatically unfair by the Labour Relations Act, 1995. The provisions of the Employment Equity Act, 1998 protects a woman from unfair discrimination based on her pregnancy, for example being denied promotion, being forced to take unpaid leave or made to work in conditions that endanger her health or that of her unborn child. An employer’s refusal to permit an employee to resume employment after she was on maternity leave in terms of any law, collective agreement, or her contract of employment is regarded as a form of dismissal. An employee who commits serious misconduct before or during her maternity leave may still of course be dismissed for such misconduct. An employer may not dismiss a pregnant employee because she is physically incapable of doing her work while pregnant, or because she has become physically incapable of doing her work as a result of pregnancy. So for example a woman who develops lengthy bouts of post-natal depression which renders her incapable of working, may not be dismissed because of the operational requirements of her job. An employee who does not disclose at the time of appointment that she is pregnant can not be dismissed for “deceiving” her employer about her pregnancy.
An employee who has been unfairly dismissed by reason of her pregnancy or a reason related to her pregnancy will ordinarily be entitled to re-instatement, alternatively compensation up to a maximum of 2 years’ remuneration. Dismissal by reason of an employee’s pregnancy is regarded as a form of automatically unfair dismissal and is adjudicated on by the Labour Court. A dismissed employee must first refer an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration or to a Bargaining Council operating in the industry / sector in which the employee was employed. If the dispute is not capable of settlement / resolution under conciliation by the CCMA / Bargaining Council the employee is entitled to refer the dispute to the Labour Court for adjudication.