A woman who has just returned from maternity leave, has to deal with a difficult situation at work. She has decided to continue breastfeeding her baby and therefore has to express her breast milk at least twice a day. Her employer refuses to be considerate towards her in this regard and reprimands her about the time she spends doing this during working hours. Few people are aware of the fact that there is legislation in South Africa that regulates how such situations should be dealt with.
Firstly, the Constitution of the Republic of South Africa stipulates in section 9(3) and (4) there may be no unfair discrimination, directly or indirectly, against anyone on the grounds of pregnancy. In conjunction with this, section 187(1) of the Basic Conditions of Employment Act stipulates that it automatically qualifies as unfair dismissal if an employee is dismissed on account of pregnancy, unless the dismissal can be justified in accordance with section 187(2). Dismissal on account of breastfeeding-related activity during working hours may thus constitute unfair dismissal.
In the 2006 case of Wallace v. Du Toit (2006) 8 BLLR 757 (LC) a woman working as an au pair was dismissed on account of pregnancy after two years in the employer’s service. The employer averred that he had made it clear to the employee during their original interview that she would no longer qualify for the post if she should fall pregnant. The judge ruled that in accordance with section 187(1)(e) this would automatically constitute unfair dismissal and discrimination in terms of section 6(1) of the Employment Equity Act. Our courts thus apply a vigilant approach regarding the dismissal of employees based on reasons in connection with their pregnancy.
The Basic Conditions of Employment Act also contains a Code of Good Practice regarding the protection of employees during pregnancy and after the birth of a child (referred to as the “Code” hereafter.) This Code provides guidelines to employers and employees with regard to the protection of women against potential health hazards in the work environment during pregnancy, after the birth and while they are breastfeeding.
In terms of this Code an employer must make provision for two rest periods of thirty minutes each daily for employees who are breastfeeding or expressing milk during the first six months after the birth of a child.
The Code also stipulates that an employer must assess a pregnant employee’s situation in the workplace. This assessment includes, among other things, an examination by a qualified medical practitioner in order to determine the employee’s physical condition; an assessment of the employee’s duties on the job; as well as an assessment of the workplace practices and exposures that may affect the employee’s health. After these assessments have been done, it may under certain circumstances be appropriate to consult an occupational health practitioner. Provision must also be made for pregnant women to attend the required pre- and post-natal classes.
Other possible risks to be evaluated by the employer, include physical, ergonomic, chemical and biological hazards.
The Code includes a short list of aspects with regard to pregnancy that the employer must keep in mind inasmuch as they may affect the employee’s job performance, such as the following:
- As a result of morning sickness employees may be unable to perform early shift work. Exposure to nauseating smells may also aggravate morning sickness.
- Backache and varicose veins may result from work involving prolonged standing or sitting.
- More frequent visits to the toilet will require reasonable access to toilet facilities and consideration of the employee’s position if leaving the work she performs unattended poses difficulties.
- The employee’s increasing size and discomfort may require changes of protective clothing, changes to work in confined spaces and changes to her work where manual handling is involved. Her increasing size may also impair dexterity, agility, co-ordination, speed of movement and reach.
- The employee’s balance may be affected making work on slippery or wet surfaces difficult.
- Tiredness associated with pregnancy may affect the employee’s ability to work overtime and to perform evening work. The employer may have to consider granting rest periods.
It is clear from the above that pregnant or breastfeeding employees are protected by labour legislation and the Consitution. Employers will have to take note of this legislation and its effect on employees in the workplace. Employers will have to think twice before they discriminate against an employee on account of pregnancy.
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