An employee was dismissed while on maternity leave and it was explained to her that due to a change in the company’s operational requirements, her services were no longer needed and that her position had become redundant.
The company subsequently offered her a settlement equivalent to six months’ salary.
She says she has been working for the company for 16 years and would like to know if they are allowed to dismiss her while on maternity leave. She also asks if the settlement amount is reasonable.
To address her question, one has to look at the requirements of the Basic Conditions of Employment Act (BCEA) regarding the notice of termination of employment.
In terms of this act, a contract may be terminated on a notice period of no less than one week if the employee has been working for the employer for six months or less.
If the employee has been working for between six and 12 months, a two-week notice period is required. If more than 12 months, the employer has to give four weeks’ notice. These notice periods may not be shortened.
It is important to note that notice of termination of a contract of employment given by an employer may not be given during any period of leave which the employee is entitled to, including annual, maternity and family responsibility leave.
Furthermore, a notice of termination of employment may never run concurrently with any period of leave that the employee is entitled to (as mentioned above), with the exception of sick leave.
In terms of the Unemployment Insurance Act (UIA), an employer is not liable to pay a monthly salary to an employee while on maternity leave, since an employee is entitled to claim maternity benefits from the Unemployment Insurance Fund (UIF) during this time.
Since the employer will not suffer any expenses in terms of paying a salary to the reader while she is on maternity leave, he or she will have to wait for her to return to work before starting the process of terminating her contract.
In terms of Section 187 of the Labour Relations Act (LRA), the dismissal of our reader while on maternity leave, could constitute an automatic unfair dismissal. It stipulates that a dismissal is automatically unfair if the reason for dismissal is the employee’s pregnancy, intended pregnancy or anything related to her pregnancy.*
Our reader can, in terms of the LRA, declare a dispute of automatic unfair dismissal at the Commission for Conciliation, Mediation and Arbitration (CCMA).
The matter will be conciliated at the CCMA first and if unresolved, the dispute will be referred to the Labour Court – which has jurisdiction over automatic unfair dismissal disputes – for adjudication.
Should the court find in favour of the employee, a maximum compensation of the equivalent of 24 months’ salary may be awarded, subject to the court’s discretion.
Compensation is awarded by the Labour Court in terms of Section 194 of the LRA to an employee whose dismissal is deemed automatically unfair. The compensation must be just and equitable, but may not exceed 24 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal.
Regarding the offer made by the employer to pay our reader compensation amounting to six months’ salary, one has to again refer to the BCEA. According to the act, an employee is entitled to one week’s salary for every year’s completed service with the employer.
The offer made to our reader is therefore unreasonable as it is not a settlement, but a minimum payment in terms of the law.*
However, if the reader should refer a dispute of automatic unfair dismissal to the CCMA, the Labour Court may find in her favour and award compensation of up to 24 months’ salary.
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Wikus van Rensburg is a well-respected labour law attorney in Port Elizabeth in Nelson Mandela Bay.
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