The employee was employed by the employer as a financial manager. She was earning a gross salary of R50000 per month at the time of her dismissal on 30 November 2020. She had received IVF treatment as a single person in January 2019 and became pregnant with a due date of 11 June 2020. She informed the CEO on 3 January 2020 and told him that she would work until 31 May 2020.
There were complications with the pregnancy. She was admitted to hospital to be monitored and on 2 May 2020, the baby was born. She had scheduled to do a handover of her work to her assistant on 14 May 2020 but had been unable to do so. She had taken her laptop to the hospital. She was discharged on 12 June 2020 with her baby, and she had a first handover meeting with her assistant three days later.
The employee informed the CEO that she and the baby had to be admitted to the hospital again for a few days. Her maternity leave indicated that would be from 1 June 2020 to 30 September 2020 however advised the CEO she would revise her situation at the end of August and might consider to start working half-day from September.
On 2 July the CEO had finally returned unanswered calls she had made to him. There was a twenty-seven-minute conversation between them. The employee said that he was screaming and yelling on the call. He said he could not go on like this. He said he needed a financial manager and he said he did not understand why the employee could not be available for work calls but could do two photoshoots with her baby.
The employee testified that she returned to the office on 1 October 2020. She found the vibe awkward in her office. She sent the CEO a message to ask for her laptop. He arrived at 11h00 and asked her to come to the boardroom. He said he thought he could not afford her. He mentioned he still had not talked to HR. He said he didn’t want her at the office because she would confuse staff with her presence and there was no work for her. She testified that she asked him to tell her that in writing so that she was not absent without approval. A meeting was held with HR on the Monday.
She received a message on Sunday, 4 October 2020 about a meeting the next day. The employee was told that a decision had been made on whether there should be a mutual separation agreement or a Section 189 process. On that day, she received a Notice of Retrenchment.
The employee testified that in the meeting she said that the letter provided was not a mutual settlement agreement. The notice also referred to the statutory minimum for retrenchment pay.
Under cross-examination, the employee agreed that another employee had taken on additional functions when she was on maternity leave. The employee insisted that the CEO’s attitude to her changed when she said she was taking maternity leave. She stated that if he had restructured the department in August, why had they not launched the consultation process sooner? The employee accepted there was a consultation process but not that any alternatives were listed for her or that any information on the employer’s financials had been provided as she had asked.
The LC found that the employee was a credible witness. The LC found that the CEO’s credibility was somewhat damaged by the mistake made in the statement of defense in relation to being taken by surprise by the arrival of the employee on 14 September. He also was unable to clearly recall what he said to the employee when she did arrive on that day. While he did downplay his anger on the telephone call with the employee, he largely confirmed the content of the call and the tenor of his anger that the employee had described.
The CEO acknowledged that he was thankful that the employee had worked from the hospital while she was admitted. However, his testimony reflected his lack of grasp of the right to maternity leave enshrined in our law. His anger at the fact the employee had not been at the end of the phone whenever needed after the discharge of her premature baby from the hospital was a prime example.
The employee’s primary claim was that the termination of her employment was for any reason related to her pregnancy.
Section 187 of the LRA provides in material part that
‘’ A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 49 or if the reason for the dismissal is-
(a) ……
(b) ……
(c) ……
(d) ……
(e) The employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy.”
The CEO’s evidence, the 25 June letter that the employee wrote to him, setting out how she would like to take her maternity leave, made him angry and emotional. It was after this letter that he removed her access to her computer and the system; spoke to the IT person, about the system upgrade (in August); and decided to get an accountant in to assist in the department in (mid-October). No substantive evidence in the department was produced by him to show that her retrenchment was necessary for operational requirements, save to say that minus her salary, a cost-cutting would be achieved. No evidence was tendered as to how there would be a cost saving to the respondent once a consultant attended to functions formerly performed by the employee, and two extra persons were seconded to do accounting administration.
The employee had done her best in the most difficult of circumstances while suffering from high blood pressure in the hospital before the birth and attending to her child who was in ICU after the birth in the hospital to perform the essential functions of her job. She had not had time to do a full handover of her functions because her pregnancy did not go to full term. The fact that she was not available during all working hours between the 12 of June (when her baby was discharged from the hospital) and the writing of her letter on the 25 June, when she set out how she would like to organize her maternity leave, was no basis for law for her employment to be under threat.
The essential facts of this case, taking into account the witness testimony before me, lead to the inescapable conclusion that the termination of the employee’s employment was related to her pregnancy. In Kroukam v SA Airlink (Pty) Ltd (2005) 26 ILJ 2153 (LAC) the LAC stated that:
‘In my view, s 187 imposes an evidential burden upon the employee to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It then behoves the employer to prove to the contrary, that is to produce evidence to show that the reason for the dismissal did not fall within the circumstances envisaged in s 197 for constituting an automatically unfair dismissal’
The employee had met her evidential burden in this case. The employer has not met the onus of showing that genuine operational requirements were the real reason for the termination of the employee’s employment. The CEO’s evidence threw light on the relationship between the dismissal and the employee’s pregnancy. The fact that the employee, on advice, participated in the consultations and tried to save her livelihood by so doing, is neither here nor there. This was a case of automatically unfair dismissal for reasons related to pregnancy.
The employee sought compensation for her automatically unfair dismissal, and I must decide what is fair and equitable in the circumstances of this case. She testified that she was unemployed for a period of four months after her dismissal. I take into account in deciding on compensation in the matter, that the employee was a senior employee and did have a responsibility to the employer to have duly interacted with the employee as to how her maternity leave was to be handled between January and May of 2020. Be that as it may, in all the circumstances of this case, her rights under our employment laws should have been upheld and protected by her employer and she is deserving of a meaningful solatium.
The dismissal of the employee was automatically unfair. The employer was to pay the employee compensation in an amount equivalent to sixteen months of her salary at the time of her dismissal being 16 x R50000 = R800000 (eight hundred thousand rand). The employer was to pay the costs of the referral.
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