Ntshadi* had been unemployed for two months when she finally found work. The week before they asked her to come in for the interview, she found out she was pregnant. She wasn’t sure what to do – she knew she’d have to go on maternity leave when she had the baby, but if she told the employer now, she knew they would never call her back for a second interview. She decided not to mention the pregnancy to the employer, and she got the job.
Seven months later, she spoke to her boss to tell him about the pregnancy and make arrangements for maternity leave. He was furious with Ntshadi. “You’ve just cost me a lot of money! Now I have to get someone else in to do your job while you’re on maternity leave!” he yelled at her. Ntshadi’s worried because her boss is so angry. What if he fires her, or tells her not to come back to work after her maternity leave because they’ve got someone else to do the job?
Scorpion Legal Protection’s advice
There is nothing in South African labour law that states at what stage of pregnancy the employee must inform the employer that she is pregnant, so Ntshadi did not legally have to say anything about her pregnancy when she went for the interview. According to the law, pregnant employees must inform their employer that they will need to go on maternity leave at least one month before the time. Since Ntshadi told her employer two months in advance, she is well within her rights and her boss cannot fire her.
Pregnant employees are entitled to maternity leave no matter how long they’ve been working at a company. But the company does not have to pay the employee a salary while she’s on maternity leave – this depends on the company’s policy. If the company policy says that they don't pay for maternity leave, then Ntshadi can claim from the Unemployment Insurance Fund (UIF).
Most importantly though, an employer cannot fire an employee because she is pregnant, or hire someone else to do her job and then tell the employee not to come back to work after maternity leave because they’ve filled the position. If they do, this is seen as an automatic unfair dismissal and you can take them to the CCMA.
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* This is only basic advice and cannot be relied on solely. Names have been changed to protect identity.