The Unemployment Insurance Act (UIA) should be amended to protect pregnant employees working in risk environments, says law firm Cliffe Dekker Hofmyer employment practice director Fiona Leppan.
She says South African legislation does not provide adequate protection for pregnant women working in risk environments where the employer cannot “reasonably practicably” offer alternative employment, citing the matter of Manyetsa v New Kleinfontein Gold Mine as an example, in which judgment was handed down in November last year.
Manyetsa was an underground mining electrician and, on falling pregnant, she needed to be removed from the hazardous work – a requirement of the mine’s health and safety policy, as well as the Basic Conditions of Employment Act (BCEA), she explains.
The BCEA required the employer to remove Manyetsa and determine whether there was suitable alternative work available to accommodate her while she was pregnant and during any period she was breastfeeding, but, in terms of Section 26 of the BCEA, if the employer cannot “reasonably practicably” place the employee in an alternative role, it is not compelled to do so.
Leppan attributes this lack of alternative placement to it not always being feasible for the employer to find alternative work for a pregnant woman, simply based on her skills, abilities and condition at the time.
She adds that, when employers cannot accommodate the pregnant employee, the employee is placed on extended maternity leave. In Manyetsa’s case, she was on leave for six months prior to giving birth.
Under the mine’s policy, Manyetsa received four months’ paid leave, but required longer than that because she was yet to give birth, and then, once she had given birth, she started breastfeeding. “Per the mine policy, she qualified for extended unpaid maternity leave,” says Leppan.
She adds that Manyetsa believed that the mine policy contravened Section 26 of the BCEA, and claimed that she had been discriminated against on the basis of her race and being pregnant, as she was put on unpaid suspension during her pregnancy.
“She wanted to rely on the provision of the International Labour Organisation’s (ILO’s) maternity protection convention, which states that employers should pay pregnant workers if suitable alternative work is not available,” says Leppan.
However, she explains that, while South Africa is a signatory to many ILO conventions, the ILO constitution provides for the voluntary assumption of obligations, which become binding only on a State ratifying a convention. “If ratified, it requires that ‘such action be taken as may be necessary to make it effective’. The steps that may be taken are not necessarily prescriptive,” Leppan explains.
She notes that Judge Edwin Tlhotlhalemaje found that the mine policy did not contravene Section 26, which neither guarantees suitable alternative employment nor provides for payment if work cannot be found, primarily because the Unemployment Insurance Fund (UIF) benefits should come into effect.
However, Tlhotlhalemaje was concerned that the extended unpaid maternity leave was an economic prejudice for female employees, which could act as a barrier to such employees gaining entry into, or remaining in, employment in risk industries.
Leppan agrees, noting that, if the UIA were to be amended, it should address situations where pregnant women would be prejudiced because of the work environment – not because they are pregnant.
“I would look to the Code of Good Practice, which talks to being applicable to those environments where you may have biological, ergonomic, chemical or environmental hazards. This clearly envisages protection extending to industries beyond mining,” she says.
She also notes that pregnant women in an office environment are afforded the same UIF benefits as women in a risk environment, which is detrimental to the latter. “The former would, in all likelihood, work up until her eighth month, and would be able to return to work immediately after the four-month period, regardless of her breastfeeding.”
In his judgment, Tlhotlhalemaje stated: “Any unfair, unjust and unreasonable consequence flowing from [an employee’s] pregnancy is directly attributable to the shortfalls in legislation meant to protect them. The facts in this case highlight the inadequacies in our [laws] meant to protect pregnant employees, especially in the mining industry.”
Leppan stresses that lapses in legislation should not be addressed by burdening employers with additional costs, but UIF legislation should be changed.
A loophole that existed when the UIA came into affect was addressed by a mid-2000s amendment, with the amendment doing away with the UIF declining claims when the employer paid any form of maternity benefit, offering some respite to women in risk industries by permitting the concept of ‘double dipping’.
“An employee can get her money from her employer and still claim UIF [benefits],” Leppan says, adding that there is some debate as to when pregnant women can start claiming from the UIF, but that ought to be once they stop work.
Women in Manyetsa’s position can receive their contractual benefits from the employer and their statutory benefits from the UIF and try to ensure that, once the employer’s payments stop, the UIF payments start, or vice versa.
Alternatively, if women claim from both during the same four-month stretch, then they should remain vigilant so that there is some money available during the periods when they are not covered.