August 31, 2020

Frequently asked questions

The following questions will provide clarity on some of the legal terms:

Question: To what extent does the Constitution protect women against inequality?

Answer:  >   Section 9 of the Constitution guarantees equality before the law and freedom from discrimination.

>  This section specifically provides that no-one may unfairly discriminate against anyone on one or more of the following grounds: race, gender, sex, pregnancy, marital status, sexual orientation, age, disability, religion and so on.

Question: What is the role of the Commission for Gender Equality?

Answer: > The Commission for Gender Equality is an institution created by the Constitution to ensure protection, promotion and monitoring of gender equality.

>     The Commission for Gender Equality will investigate any gender related complaints and attempt to resolve them. If it cannot be resolved, they can assist the complainant in referring the complaint to the Equality Court.

>     Complaints to the Commission for Gender Equality can be sent via e-mail to complaints@cge.org.za or it can be sent in writing to The Legal Department, Commission for Gender Equality, PO BOX 32175, Braamfontein, 2017.

Question: Who are considered as vulnerable employees during the COVID-19 pandemic?

Answer: > During the COVID-19 pandemic and the National State of Disaster, employers must adopt special measures for the return to work of vulnerable employees.

>     Apart from an employee who is more than 28 weeks pregnant, vulnerable employees also include any employees who have a known health issue or any other condition that may place those employees at a higher risk of complications or death if infected with the COVID-19 virus.

>     Examples of these health issues or other condition are heart disease, diabetes, chronic lung disease and cancer.

>     An employee older than 60 years of age is also considered to be a vulnerable employee.

Question: Can a pregnant employee be retrenched?

Answer: > Seeing as pregnancy is one of the protected grounds against discrimination in terms of the Constitution, an employer cannot retrench an employee purely due to her being pregnant.

>     However, a pregnant employee can be retrenched if the employer can show that there is a real reason for the retrenchment and that it is unavoidable.

>     An employer may retrench employees for “operational requirements”, for example, the retrenchment can be based on the economic needs of a business (such as a drop in sales or services). However, there are certain procedures in place that must be followed before an employer can decide to retrench an employee.

Did you know…An employee who is pregnant cannot be retrenched purely due to her being pregnant.