Direct Answer
Dismissing an employee because she is pregnant, on maternity leave, or for any reason related to pregnancy is automatically unfair dismissal under Section 187(1)(e) of the Labour Relations Act. There is no need to prove it was unfair — the law presumes it is. Refer to the CCMA within 30 days.
What the Law Says
Your Legal Foundation
Labour Relations Act 66 of 1995
Section 187(1)(e)
“A dismissal is automatically unfair if the reason for the dismissal is that the employee is pregnant, intends to be or is absent from work during maternity leave.”
Basic Conditions of Employment Act 75 of 1997
Section 25
“An employee is entitled to at least four consecutive months' unpaid maternity leave. An employee may commence maternity leave at any time from four weeks before the expected date of birth.”
Labour Relations Act 66 of 1995
Section 193
“If a dismissal is automatically unfair, the court may order reinstatement or re-employment. If reinstatement is not appropriate, compensation of up to 24 months' remuneration may be ordered.”
Common Questions
Frequently Asked Questions
My employer says I was retrenched — but it was while I was pregnant. Is it still automatically unfair?
If the real reason for your retrenchment was your pregnancy, yes — it is automatically unfair. Employers sometimes use retrenchment as cover for pregnancy dismissal. The CCMA and Labour Court will look at the timing and circumstances. If all other employees in your position were not retrenched, or if there is any other evidence linking the retrenchment to your pregnancy, it will likely be found automatically unfair.
Am I entitled to pay during maternity leave?
The BCEA only requires employers to give four months' unpaid maternity leave — it does not require them to pay you during that leave. However, you can claim UIF maternity benefits (which pay a percentage of your salary) through the Department of Labour. Some employer contracts provide for paid maternity leave — check your contract.
Can I be dismissed for performance while on maternity leave?
An employer cannot dismiss you for performance based on assessments made while you were on maternity leave. Any performance management process must allow you a reasonable opportunity to improve — which you cannot do while absent. Dismissal for performance during maternity leave will be examined very closely by the CCMA.
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