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How to show compliance with maternity leave regulations

Peter McDermott

Maternity leave

Section 25 of the Basic Conditions of Employment Act (BCEA) contains the rights of all pregnant and nursing employees that you, as an employer, have to comply with. Collective and individual agreements may expand on pregnant employees' rights and can, in some instances, be more generous. However, these agreements can't detract from any core right granted by the BCEA. What are female employees' rights in terms of maternity leave?

6 Facts every employer must know about maternity leave

1. Every pregnant or nursing female employee is entitled to four consecutive months' unpaid maternity leave. Maternity leave is a unique leave entitlement and doesn't affect, for example, the employee's annual leave or sick leave entitlement.

You have to comply with maternity leave regulations and these can't be reduced by agreement. However, the employee may decide – on her own - to return to work before the full four-month period has expired.

An employee may not work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that the female employee is fit to do so. It's the employee's obligation to inform her employer, in writing, when she intends to start and end her maternity leave.

2. The employee can start her maternity leave at any time from four weeks before her due date unless you two have agreed otherwise. She can also start her maternity leave on a date that a medical practitioner or midwife is necessary for her health or that of her unborn child.

3. When an employee has a miscarriage in her third trimester (7 months – 9 months), or if she bears a stillborn child, she is entitled to maternity leave only for six weeks after the miscarriage or stillbirth

4. You are not legally obliged to pay an employee while she is on maternity leave (unless this has been legislated in a ministerial determination and/or negotiated in a collective agreement).

5. Maternity leave is unpaid unless otherwise agreed.

However, it's your duty to help the employee claim benefits from the Unemployment Insurance Fund (UIF) during this period.

6. A female employee who was on maternity leave has the right to return to the same, or a comparable, job. If you refuse to allow one of your female employees to resume her post when she returns from maternity leave, you are automatically guilty of unfairly dismissing her:

  • According to section 187(1)(e) of the Labour Relations Act (LRA), you are not allowed to dismiss an employee for any reason related to her pregnancy.
  • Offering an employee a lesser position than the one she held before going on maternity leave is unfair discrimination on the basis of pregnancy. This goes against the Employment Equity Act as well as sections 9(3) and 9(4) of the Constitution of South Africa, which provide that no-one may be discriminated against or dismissed because of pregnancy.

What does case law say about compliance to maternity leave regulations?

In the case of Mnguni vs Gumbi (2004 6 BLLR 558):

  • A receptionist in a 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 court heard that the employer had hired a replacement receptionist the very next day and didn't call the employee to return to work when the opportunity arose.
  • The court held that this suggested that the applicant had in fact been dismissed and that this dismissal was automatically unfair.
  • The court ordered the employer to pay the employee 24 months' remuneration in compensation.

In the case of Lukie vs Rural Alliance cc (2004 8 BLLR 769):

  • The employee claimed her employer had told her she didn't need to return to work after her maternity leave.
  • The employer, in turn, claimed that the employee had resigned.
  • Lacking any corroborating evidence, the court had to consider which of their testimonies was most probable and found in favour of the employee.
  • The court found that there had been an automatically unfair dismissal and ordered the employer to pay the employee 18 months' remuneration as well as her legal costs.

Peter Mcdermott

Peter did a Bachelor of Technology (B.Tech), Human Resources Management and Services at Technikon Witwatersrand (1994-1998) and an Advanced Diploma – Labour Law, Law at University of Johannesburg (2001-2002).

He joined Labour Net in 1997 and was a consultant there until 2000, and has been a director and shareholder in Invictus Outsourcing Solutions since November 2001.

Peter has gained extensive knowledge and experience over the past 17 years in dealing with various Human Resources (HR) and Industrial Relations (IR) matters, including but not limited to :

  • Bargaining Council
  • Black Economic Empowerment (BEE)
  • CCMA
  • Contracts of Employment
  • Corporate Law
  • Disciplinary Procedures
  • Dismissals
  • Dispute Resolutions
  • Employment Equity (EE)
  • HR Policies and Procedures
  • Labour Court
  • Labour Relations
  • Negotiations
  • Performance Management
  • Personnel Management
  • Policies and Procedures
  • Retrenchments
  • Skills Development (SD)
  • Strikes
  • Talent Management
  • Trade Unions