Dismissals related to pregnancy are considered automatically unfair in line with Section 187 of the Labour Relations Act 66 of 1995. The Labour Court has strengthened this position in the case of Brandt v Quoin Rock Wines C152/2021, where an employer had attempted to retrench an employee, who had returned from maternity leave, on the basis that the dismissal was based on its operational requirements.

Melissa Brandt (Applicant) had been employed by Quoin Rock Wines (Respondent) as a financial manager since July 2013 and earned R50 000.00 a month at the time of her dismissal. In September 2019, Melissa fell pregnant after undergoing IVF treatment earlier in the year and was due to give birth on the 11th of June 2020. She had further informed her CEO (Mr Gaiduk) of her pregnancy on the 3rd of January 2020 and advised him that she would work until the 31st of May 2020. On the 12th of May 2020, Melissa was admitted to the hospital due to complications relating to her pregnancy. Her child was born on the 21st of May 2020 however had to remain in ICU. Melissa was only discharged on the 12th of June 2020. It was agreed that Melissa would do a handover of her duties on the 14th of May 2020. Due to lockdown restrictions, this was impossible as visitations were not permitted at the hospital and thus could not carry out the handover. The handover was carried out on the 15th of June 2020. Melissa had still been in contact with her employer and carried out various tasks while on maternity leave. On the 25th of June 2020, Melissa had sent an email to her CEO advising that she assisted in certain duties and that the maternity leave would run from the 1st of June to the 30th of September 2020. No response was received.

Melissa had various forms of communication with her CEO, including WhatsApp messages and telephone conversations. The CEO had become frustrated that Melissa was not always available to attend to certain tasks. Melissa then reported to work on the 14th of September 2020, where she was advised that her position had become redundant. The company had then offered Melissa the option of entering into a mutual separation agreement or going through the retrenchment process; Melissa elected not to enter into a mutual separation agreement. The employer later issued Melissa a Notice of Retrenchment on the 5th of October 2020, confirming that she was the only affected party. The reason for the proposed retrenchment was linked to the company’s operational requirements to reduce operating costs. The parties entered a consultation process, but Melissa had advised that the employer had already decided to retrench her before the consultation process. Melissa was thereafter retrenched on the 30th of November 2020. The matter was then referred to the Labour Court.

The Court found that the CEO of the Respondent had decided that Melissa’s position was redundant on the 1st of October 2020 before any discussions with HR or consultations had taken place. The Respondent had also not produced enough evidence to prove that the retrenchment was necessarily due to operational requirements. The Court was of the view that retrenching Melissa on the basis of a cost-saving exercise did not make sense as a consultant who assisted with Melissa’s duties, and two extra persons were hired to carry out accounting administration.

The Court confirmed that Melissa had proved her dismissal based on her pregnancy was automatically unfair in line with Section 187 of the Labour Relations Act. The company was ordered to pay Melissa sixteen (16) months’ salary as compensation in the sum of R 800 000. The Court also ordered the company to pay the costs of the referral.

The above clearly indicates the Court’s position that it will vigorously protect women’s rights and sends a clear message that any employer wishing to dismiss an employee due to her pregnancy runs the risk of facing a severe backlash from our courts.

For a full copy of the judgment, kindly click here.

Article By: Krian Rathinam
Dispute Resolution Official – CEO Durban