Fixed term employees are those whose employment contracts are for a specific agreed upon period, such as a period of 12 months. When it comes to women and child birth, a lot can happen in 12 months and a child can be conceived and born in that period. The question is what happens when a woman becomes pregnant while on a fixed term contract, is she entitled to the same benefits as permanent employees? Consider the following scenario:
Martha* signs a 12-month employment contract which commences in January and terminates end of December in the same year. She starts working in January, but finds out in February that she is pregnant. This means that the expected date of birth will be before her fixed-term contract comes to an end. What are her rights?
Can she be dismissed?
An employment contract cannot include a clause that an employee's employment will be terminated if they fall pregnant, it also cannot make falling pregnant a breach of contract. According to the Labour Relations Act 95 of 1995 (“LRA”), dismissing a woman for pregnancy related reasons is automatically unfair.
Furthermore, if the pregnant employee's nature of work poses a health hazard to her or the child, then the Basic Conditions of Employment Act 75 of 1997 (“BCEA”) and the Code of good practice on the protection of employees during pregnancy and after the birth of a child, 1998 provides that the employer must offer her alternative suitable employment if it is possible. The terms of the alternative employment must not be less favourable than her original contract. If it is not practically possible for the employer to transfer the pregnant employee to another position, then she must be trained on preventative measures to avoid the hazard.
This protection offered under the LRA and the BCEA as discussed above is not exclusive to permanent employees. This means that Martha's employment cannot be terminated on the basis that she is pregnant, nor can her fixed term employment contract contain any clauses that she will be dismissed if she falls pregnant. Such conduct on the employer's part would constitute an automatically unfair dismissal.
Is she entitled to leave?
According to the BCEA, an employee is entitled to at least four months consecutive maternity leave which may commence anytime from four weeks before the expected date of birth, or on a date agreed with the employer or as indicated by a medical practitioner or midwife. It is further provided that an employee may not work for six weeks after the birth of the child, unless a medical practitioner certifies that she is fit to resume. Again, this applies to a pregnant employee irrespective of whether she is on a fixed term or permanent contract.
This means that Martha's employer is obliged to grant her four months consecutive leave, however, she and the employer can agree on when the leave will commence before the birth. Therefore, they can agree that the leave shall commence on a date later than four weeks before the birth, for example a week before birth, unless a medical practitioner indicates when the leave must be taken.
The fact that the four months maternity leave goes beyond Martha's fixed term contract does not mean that her employment period will be extended to factor in the four months leave. The contract will still end in December as agreed in the contract, even if she is on leave during that period.
Can she claim from the Unemployment Insurance Fund (“UIF")?
An employer is not obliged to pay an employee while she is on maternity leave, however, the parties may agree to paid maternity leave. The employment contract can provide for the full salary or partial salary payment during maternity leave.
A pregnant woman may apply for the UIF maternity benefit if her employment contract makes no provision for paid maternity leave or if it only provides for a partial salary payment. The claim to the UIF must not result in her receiving more than her usual salary. Therefore, if the employer only pays a portion of the salary during maternity leave, then her claim to the UIF must only be for the difference. To qualify for a UIF claim for the maternity benefit, the employee must be a contributor to the UIF and she must have been employed for at least 13 weeks (three months) before applying for the benefit.
This means that employees on fixed term contracts can claim the maternity benefit under the UIF, provided they have been employed for at least three months before they apply and they have been contributing to the UIF.
Conclusion
As can be seen from above, the legislation in place to protect pregnant women is quite accommodating for employees who fall pregnant while working on a fixed term contract. They are afforded almost exactly the same benefits as permanent employees, save for the periods relating to UIF maternity benefit claims. This is rather progressive and can put women at ease in the workplace when it comes to child bearing, regardless of the duration of the employment contract they are on.
*Names are for illustrative purposes only.
Did you know…According to the Labour Relations Act 95 of 1995 (“LRA”), dismissing a woman for pregnancy related reasons is automatically unfair.