Mashava v Cuzen & Woods Attorneys (2000) 21 ILJ 402 (LC)


Where an employer dismisses an employee because she is pregnant , this will be an automatically unfair dismissal.


A candidate attorney failed to disclose her pregnancy to the employer. Her probation was terminated on the basis of her deceit in not disclosing the fact of her pregnancy. The court held that true and principal reason for her dismissal was the fact of her pregnancy or at least for reasons related to her pregnancy.

Extract from the judgment:

The Labour Relations Act protects employees from unfair dismissal (see section 185). Dismissal on prohibited grounds, including pregnancy, leads to what the Act terms an automatic unfair dismissal (see section 187). If the dismissal is not automatically unfair the employer must prove that the dismissal is fair for reasons related to conduct, capacity or operational requirements or is for a fair reason based on the employer's operational requirements and that the dismissal was effected in accordance with a fair procedure (see section 188). The onus is on an aggrieved employee to prove that there has been a dismissal as defined (see section 192(1)). Once the existence of the dismissal has been established the onus is on the employer to show that the dismissal is fair (see section 192(2)).

Section 187(1)(e) of the LRA reads:

"(1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or if the reason for the dismissal is -(e) the employee's pregnancy, intended pregnancy, or any reason related to her pregnancy."

The purpose of protecting female employees from dismissal for reasons of pregnancy, intended pregnancy or reasons related to pregnancy is to ensure as far as possible that female employees are not disadvantaged, as they traditionally have been, by virtue of their being woman and the child-bearing members of the human race.

The fist issue in this case is whether the candidate was dismissed. The onus of proving that she was dismissed rests on her. Mr Sutherland SC, who appeared on behalf of the firm, contended that she had not been dismissed and that she had not shown that she had been dismissed. He submitted that her contract of employment had terminated at the instance of the firm but that this was not a dismissal as it was one of two events contemplated by the concept of probation. Either she would be suitable for employment as a candidate attorney or she would not be suitable. In the first instance a new relationship would be concluded on the basis of statutory articles (see section 2 of the Attorneys Act 53 of 1979). In the second the relationship would simply terminate.

This is true. But it does not mean that an employer may terminate a contract of employment of a probationary nature for the reason that the employee is pregnant. It may well have a bearing on the nature of the relief but the principle stands firm. No employer may dismiss an employee for reason of her pregnancy, intended pregnancy or for reason related to a pregnancy. I do not deal with possible defences...I am of the opinion that the firm terminated the contract of employment in the sense of a dismissal of the services of the candidate as contemplated by section 186 of the LRA.

The next question which arises is whether the dismissal is for a fair reason. The onus proper, as I have pointed out, to prove this lies on the firm. But where an aggrieved employee complains that the dismissal is automatically unfair by reason of her pregnancy and thus seeks double the ordinary compensation, how should the issue of pregnancy be raised? Who should raise it and what is sufficient evidence?...

Although the principal reason for the firm terminating her services was her alleged deceit, this deceit was not, on the evidence, deceit at all. The true and principal reason for her dismissal was the fact of her pregnancy or at least for reasons related to her pregnancy.

The candidate seeks 24 months' compensation for her dismissal. Section 194(3) of the LRA provides that this Court may award her such compensation as is just and equitable in all the circumstances but not exceeding the equivalent of 24 months' salary calculated at the employee's rate of remuneration on the date of dismissal. The compensation is, in my view, intended to compensate her for her loss - both patrimonial and non-patrimonial loss.