Automatic Unfair Dismissals- Pregnancy and Employment

We are celebrating Women’s month in August. As such it is always good to reflect on how far we have come as a nation since thousands of brave women marched to the Union Buildings on the 9th of August 1956.

But the question remains – how far have we really come and are our South African Female Employees better off than they were in 1956?

Women had to overcome many battles to have the freedoms that many of us take for granted today. However, it seems that many women are still being victimized today, the moment they inform their Employer that they are pregnant. Women are thus afraid to inform their Employers of their pregnancy and some wait until they are in their second trimester to inform their Employers.

Does the Labour Relations Act 66 of 1995, (hereinafter referred to as the “LRA”) as amended, not afford female Employees the necessary protection against abuse by their Employers due to their pregnancy?

Section 187 of the LRA stipulates that in certain circumstances when Employers dismiss Employees, these dismissals will be considered to be automatically unfair. The Employees are thus afforded statutory protection against automatically unfair dismissals.

Section 187(1)(e) determines that:

A dismissal is automatically unfair if the Employer, in dismissing the Employee acts contrary to Section 5 or the reason for dismissal is the Employee’s pregnancy, intended pregnancy or any reason related to her pregnancy.”

What does this mean? What are Employers allowed to do and what are they prohibited from doing?

Employers can’t dismiss Employees when they inform them that they are pregnant. Employers are furthermore prohibited from dismissing Employees when they announce to their Employer that they are planning to start a family.

If a pregnant Employee commits misconduct, the Employer will be allowed to take disciplinary action against her based on the misconduct. The Employer must ensure that the correct procedures are followed when taking the disciplinary action against the said Employee.

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