Manyetsa v New Kleinfontein Gold Mine (Pty) Ltd (JS706/14) [2017] ZALCJHB 404 (7 November 2017)

Principle:

Section 26(2) of the BCEA does not mean that suitable, alternative employment is guaranteed, in the event of a pregnant employee's work posing a danger to her health or safety or that of her child.

Facts:

The applicant in this case was employed by New Kleinfontien Gold Mine as a plant electrician. She claimed unfair discrimination over the way in which she was treated during her pregnancy. She alleged that the employer's policy on maternity and the way it was implemented, discriminated against her on the grounds of her pregnancy by placing her on unpaid leave for 5 months. She claimed R159 501 as damages, being the monetary loss she suffered as a result of her unpaid suspension. She also claimed compensation of R 79 750, and an order directing the employer to take steps to prevent this type of discrimination in future.

The employee's work area was considered hazardous due to the presence of chemicals such as cyanide, ionising radiation, hazardous gases, fumes etc. Once she disclosed to her employer that she was pregnant, the employer had a duty to find her "suitable alternative risk free work (with necessary training) on terms and conditions that are no less favourable" in terms of its Maternity Leave and Women in Risk Areas Policy. The policy provided that management could allow an employee to go on extended unpaid maternity leave if "every endeavour" to find suitable alternative work failed.

Although various options were considered, attempts to find her suitable alternative work ultimately failed. She also declined an interview for the position of receptionist when told that the position would be offered on lesser terms and conditions to what she currently received. She was then placed on unpaid maternity leave for a 5 month period.

The LC confirmed that, whilst the employer's policy obliged it to make every endeavour to find suitable alternative work for its pregnant employees, it did not provide a guarantee that such alternatives would be found, and neither is there an obligation on the employer to create suitable alternatives. Similarly, section 26 of the BCEA also does not guarantee suitable alternative employment on no less favourable terms and conditions of employment, and neither does the Code of Good Practice on the Protection of Employees during Pregnancy and after Birth of a Child.

The LC highlighted that even if alternative work was available, it still had to ask whether those alternatives were 'suitable' and whether it was 'practicable' for the employer to offer this alternative employment on no less favourable terms and conditions. Whether alternatives considered were suitable, and whether it was practicable to offer this alternative employment on no less favourable terms and conditions, were questions of fact to be decided under the circumstances of each case.

On the facts of this case, the LC found that the employer had fulfilled its obligations under its policy and the BCEA. No suitable alternative work was available and the employer was accordingly justified in placing the employee on unpaid leave. On the basis of the evidence led, the LC also rejected the applicant's allegations that the employer had offered white pregnant employees suitable alternative employment whilst not offering black pregnant employees similar opportunities.

The LC noted that s26 of the BCEA, the Code of Good Practice and the employer's policy are in contrast to the ILO's Maternity Protection Recommendation 200(no183 & no191) that obliges an employer to provide the employee with paid leave in such circumstances.

The LC dismissed the applicant's claim.

Extract from the judgment:

(Tlhotlhalemaje,J)

[5]   It is appreciated that the Labour Relations Act (LRA) covers instances of unfair labour practices where pregnant employees feel hard done by what may be seen as employer unfair practices. However, specific pieces of legislation that deal with pregnant employees such as the Basic Conditions of Emploment Act (BCEA) still fall short in addressing some of the problems highlighted as above. I am constraint to state that in my view, any unfair, unjust and unreasonable consequence flowing from a female employee's pregnancy is directly attributable to the shortfalls in legislation meant to protect them. The facts of this case highlight the inadequacies in our legislative measures that were meant to protect pregnant employees especially in the mining industry.

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[32]   I will not burden this judgment with the interpretation of the Policy safe to state that as I understand the provisions, once an employee is found to be pregnant, the employer is obliged, (flowing from the word 'must'), to make every endeavour to offer her suitable alternative risk free work on terms and conditions that are no less favourable than the ordinary terms and conditions of employment. Where necessary, training should be provided to the employee to perform the alternative work.

[33]   I do not understand the above obligations to involve a meaningless box-ticking exercise. Thus, there must be a genuine endeavour to offer the affected employee suitable alternative risk free work in view of the adverse consequences for the affected employee if the employer is unsuccessful in that regard. Ultimately, whether such a genuine endeavour was made is a question of fact and evidence. Be that as it may, in the event that every endeavour made at securing 'suitable alternative risk free' work did not yield any positive results, the provisions related to extended unpaid maternity leave kicked in. Thus on its plain reading, the provision does not guarantee (reading from the word endeavour) that alternative work will be found, nor is there an obligation on the employer to create any such alternative suitable work.

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[46]   It cannot therefore be doubted that the test of 'suitable alternative employment' involves a consideration of whether upon the employer's assessment, the position is indeed available, whether that positions is capable of being a suitable alternative, and whether in fact suitable for that particular employee. The test will further involve an assessment of the job content of the identified alternative position, the appropriate skills and experience of the affected pregnant employee, the terms of the alternative position and its concomitant responsibilities. The employee's specific personal circumstances also need to be considered. In the end, a proper assessment needs to take into account that, what may be considered as an alternative, may not necessarily be suitable for that employee, and in the same vein, what might appear suitable might not necessarily be an alternative or available for the employee.

[47]   Applying the above to the facts of this case, it follows that it cannot be read in the provisions of section 26 (2) of the BCEA that suitable, alternative employment is guaranteed in the event of a pregnant employee having to be moved from high risk or hazardous work area. A purposive interpretation of these provisions reveal that they were meant to protect pregnant employees by guaranteeing the right to be considered for alternative suitable employment in the event that they had to be removed from their ordinary duties. This is in line with the constitutionally guaranteed right to fair labour practices. These provisions however do not guarantee the right to alternative employment or guarantee that the employer will make that alternative employment available. Furthermore, and to the extent that the differences between the provisions of the Recommendations and those of section 26 (2) of the BCEA have been outlined above in an instance where alternative suitable employment cannot be found for that employee, there is further no obligation to place that employee on paid maternity.