With all the uncertainty around the job market and the financial troubles companies are facing, you may be wondering what happens if you need to go on maternity leave. Will you be targeted for retrenchment? What happens when you get back, can they tell you they’ve retrenched you and that you no longer have a job? Scorpion Legal Protection answers.
No employer can retrench employees without following the correct procedure prescribed in Section 189 of the Labour Relations Act (LRA). This deals with the employer’s need to retrench for operational requirements, like financial difficulty. The process involves a number of consultation meetings with the employees affected as well as official written communication and notification from the employer. Retrenchment cannot happen without the employee being consulted and knowing about it.
The employer cannot retrench an employee while she is on maternity leave because they will not be able to consult with her in terms of Section 189 of the Labour Relations Act while she is on maternity leave. The employer will have to wait for the employee to return from maternity leave to start retrenchment proceedings with her.
If the employee is targeted for retrenchment specifically because she is pregnant, it could be a case of unfair dismissal, as employers are not allowed to discriminate against an employee because she is pregnant. However, it’s unfortunately the case that many employers have suffered financially as a result of the lockdown and that they genuinely need to go through retrenchment in order to help save the company from closing down completely. If so, the employer is allowed to start retrenchment proceedings with the employee when she returns to work after her maternity leave because the reason for the retrenchment would be the financial difficulties of the company and not because the employee was pregnant.
If you feel you have been discriminated against or retrenched because you are pregnant or need to go on maternity leave, you can refer the matter to the CCMA for further action. For issues regarding payment of severance pay or maternity benefits, you can refer the matter to the Department of Employment and Labour.
Tips
- You cannot be retrenched while on maternity leave, the employer must follow the Section 189 procedure.
- You cannot be targeted for retrenchment just because you are pregnant or on maternity leave.
If you have a query, follow us on Facebook and ask your question during our next Live Q&A (the first Thursday of every month).
* This is only basic advice and cannot be relied on solely. The information is correct at the time of being sent to publishing