Laid off while pregnant?these are your rights

When you are pregnant and your employer decides to fire you, you have rights under labour legislation, as the employer recently discovered, he must pay the employee R800 000 as compensation for starting redundancy proceedings during her pregnancy.

The employee is a finance manager and at the time of his dismissal on 30 November 2020, his total monthly salary was R50 000. She underwent IVF treatment as a single in January 2019 and became pregnant on June 11, 2020.

Jonathan Goldberg, a labor law expert at Global Business Solutions, said she notified the CEO on January 3, 2020, and told him she would be working until May 31, 2020.

Also read: Are you unemployed?You may be entitled to severance pay

Unfortunately, the pregnancy developed complications and the woman was admitted to hospital for monitoring and the baby was born on May 2, 2020. She was scheduled to hand over the job to her assistant on May 14, 2020, but was unable to do so.

She was discharged with her child on June 12, 2020, and had her first handover meeting with an assistant three days later. She told the CEO that she and the child would have to be hospitalized again for a few days.

Her maternity leave was originally scheduled to run from June 1, 2020 to September 30, 2020, but she told the CEO she would adjust the situation at the end of August and may consider working a half-day starting in September.

Also read: Did you lose your job?You may be entitled to severance pay

When you go back to the awkward atmosphere of the office

On July 2, the CEO finally answered her unanswered call and yelled at her during the call. He said he couldn’t go on like this and needed a financial manager. He also said he didn’t understand why the employee couldn’t answer work calls but was able to take two pictures with her child.

The employee certified that she returned to the office on October 1, 2020, and found the atmosphere in the office awkward. After she messaged the CEO for her laptop, he invited her to the conference room.

There he said he didn’t think he could afford her, but mentioned that he hadn’t spoken to HR. He also said he didn’t want her in the office because she would confuse staff with her presence and she didn’t have a job. She testified that she asked him to tell her in writing to ensure she would not be absent without approval.

On a Sunday, she received a message about a meeting the next day and was told that a decision had been made on whether a mutual separation agreement or a Section 189 procedure (redundancy) had been made. On Monday, she received a layoff notice.

The employee testified that she indicated at the meeting that the letter provided was not a mutual settlement agreement and that the notice did not mention the statutory minimum layoff salary.

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CEO’s Attitude Changes After Pregnancy

During cross-examination, she agreed that another employee had taken on additional functions while she was on maternity leave. She also insists the CEO’s attitude towards her changed when she said she was pregnant and took maternity leave.

She wondered why the company hadn’t started the consulting process sooner if the division had been restructured in August. The employee agreed to have a counseling process, but no alternatives were listed for her, and she was not given any information about the company’s finances as she requested.

The court found that the employee was a credible witness and that the CEO’s credibility was damaged to some extent by the error in the defense statement that the employee was caught off guard when he arrived on September 14.

The CEO also couldn’t recall clearly what he said to employees when she arrived, and while he downplayed his anger on the call, he largely confirmed the content of the call and the tone of his anger.

Goldberg said he acknowledged he was grateful the employee had been at the hospital when she was admitted, but his testimony reflected his lack of understanding of our maternity rights under the law.

He pointed to his anger at staff not answering the phone when needed after her premature baby was discharged as a prime example. The employee’s main claim was that her employment was terminated due to her pregnancy.

Also read: Quietly quit your job – here’s what the law says and how it affects your employment

automatic unfair dismissal

According to Section 187 of the Industrial Relations Act, the dismissal is naturally unfair if the employer violates Section 5 when dismissing the employee, or the dismissal is due to the employee’s pregnancy, planned pregnancy or any reason related to pregnancy.

The CEO said he was angry and emotional when the employee’s letter listed how she wanted to take maternity leave. Following the letter, he revoked her access to the computer and system, discussed the system upgrade with IT staff in August, and decided to hire an accountant to assist the department in mid-October.

He did not provide any substantive evidence that her layoffs were necessary for operational needs, other than to say that not paying her would reduce costs. No evidence was provided of how costs would have been saved once a consultant had attended the staff’s activities and seconded two additional people for accounting management.

Goldberg said the employee did her best under the most difficult circumstances, she had high blood pressure in the hospital before she was born and cared for her baby in the intensive care unit after she was born to carry out her basic needs. job responsibilities.

She did not have time to fully hand over her functions as her pregnancy was not at term. The fact that she was absent from work at all working hours from June 12 when her child was discharged from the hospital until June 25 when she wrote a letter explaining how she wanted to arrange maternity leave had no legal basis for her to be threatened with employment.

Also read: Why workplace empathy is more important than ever

Evidence that she was made redundant by pregnancy

The employee provided all necessary evidence, and her employer was unable to demonstrate that a genuine operational requirement was the real reason for terminating her employment. The CEO’s own evidence points to a connection between her dismissal and the pregnancy.

Goldberg said it neither existed nor existed that the employee participated in counseling on the advice and tried to save her livelihood by doing so. “This is a case of automatic unfair dismissal for pregnancy-related reasons.”

The employee is seeking compensation for her automatic unfair dismissal, and the court must decide what is fair and equitable in the circumstances. She testified that she was out of work for four months after being fired.

The judge said he believed she was a senior employee and did have a duty to interact appropriately with her employer about how she handled maternity leave between January and May 2020 to determine compensation.

Since dismissal is automatically unfair, the employer must pay employees compensation equal to 16 months of her salary at the time of dismissal, ie 16 x R50 000 = R800 000. Employers must also pay referrals for termination costs.

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