It is tough being a working woman, but being a working mother is much tougher. Juggling a career and motherhood while at the same time trying to be an ideal wife is a skill that is mastered by few. However, many working mothers and expectant working woman are not fully aware of the rights our law affords them in the workplace.
Employers are generally reluctant to hire mothers because they believe working mothers are less committed, less flexible, their skills are outdated, and they will be taking family responsibility leave before their first paycheck clears. Luckily for some, the South African Labour Law has taken great strides in protecting mothers in the workplace.
Briefly, Section 187 of the Labour Relations Act of 1995 classifies a dismissal of an employee due to a pregnancy, an intended pregnancy, or any reason which relates to pregnancy, as being an automatically unfair dismissal.
Further, sections 25 and 26 of the Basic Conditions of Employment Act of 1997 (BCEA) set out the conditions for maternity leave, which include:
• An employee is entitled to at least four consecutive months’ maternity leave which may commence at any time from four weeks before the expected date of birth, unless mutually agreed by both employer and employee, or on a date from which a medical practitioner or a midwife certifies that it is necessary for the employee’s health or that of her unborn child.
• No employee may work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so. An employee who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to maternity leave for six weeks after the miscarriage or stillbirth, whether or not the employee had commenced maternity leave at the time of the miscarriage or stillbirth.
• An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to commence maternity leave and return to work after maternity leave. Such notification must be given at least four weeks before the employee intends to commence maternity leave or if it is not reasonably practicable to do so, as soon as is reasonably practicable.
• The payment of maternity benefits will be determined by the Minister subject to the provisions of the Unemployment Insurance Act, 1966 (Act No. 30 of 1966).
Section 26 of the BCEA offers protection to an expectant mother both before and after the birth of a child and provides that no employer may require or permit a pregnant employee or an employee who is nursing her child to perform hazardous work. In addition, during an employee’s pregnancy, and for a period of six months after the birth of her child, her employer must offer her suitable, alternative employment on terms and conditions that are no less favorable than her ordinary terms and conditions of employment, if the employee works night shifts or her work poses a hazard to her or her child’s health and safety.
When it comes to Family Responsibility Leave, Section 27 of the BCEA provides for a mother to attend to her sick child (and also the birth and death of certain individuals) and applies to an employee who has been in employment with an employer for longer than four months and who works for at least four days a week for that employer.
An employer must also grant an employee, during each annual leave cycle, at the request of the employee, three days’ paid leave, which can be taken in respect of a part or whole day. This leave can be taken when:
• the employee’s child is born;
• when the employee’s child is sick;
• in the event of the death of the employee’s spouse or life partner, the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.
This paid Family Responsibility Leave must equal the wage the employee would ordinarily have received for work on that day and should be paid on the employee’s usual pay day.