Wardlaw v Supreme Mouldings (Pty) Ltd (2004) 25 ILJ 1094 (LC)


If an employee alleges there is an automatically unfair dismissal because of her pregnancy, the employer bears the onus of proving that a fair reason exists for a dismissal that is unrelated to the employee's pregnancy.


On her return from maternity leave after four months, an employee was dismissed for gross negligence and a gross dereliction of duty. She alleged this was really about her taking maternity leave and, even if there had been negligence, there had been no corrective discipline taken. The court held that the employer, if it disputes that the dismissal was automatically unfair, bears the onus of showing that a fair reason exists that is unrelated to her pregnancy. The employer led evidence that the employee's negligence and inadequacy in critical areas of her work only became apparent when she went on maternity leave. The court accepted that this evidence had established that the dismissal was not a vindictive reaction to her maternity leave and the inconvenience of her absence at a time of severe administrative pressure. There was no factual causation between her pregnancy and her dismissal (and it was not even the 'proximate' cause), and therefore not an automatically unfair dismissal

Extracts from the judgment:

[At p 1097B-C]   Counsel for the applicant argues correctly that in terms of s 192(2) of the Act, the respondent, if as in this case it disputes that any aspect of the applicant's dismissal rendered it automatically unfair, bears the onus to show that a fair reason exists that is unrelated to her pregnancy and that such a reason justifies her dismissal.

[At 1101B]   I would respectfully venture to suggest that the most practical way of approaching the issue would be to determine what would be the most probable inference that may be drawn from the established facts as a cause of the dismissal...