Pregnant employees are protected in the workplace. For instance, s6 of the Employment Equity Act, No 55 of 1998 specifically provides that “[n]o person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including… pregnancy”.
In the case of Impala Platinum Ltd v Jonase & others (JR 698/15), two employees who had worked underground at an Impala Platinum mine referred a dispute to the CCMA alleging that they had been discriminated against because they were pregnant. They indicated that they wanted “to be treated fair like other pregnant employees.”
Their employer had a policy that where reasonably practicable, it would place pregnant women who worked underground on the surface in suitable alternative employment to prevent risk to their health and safety and the health and safety of their unborn children.
In terms of the policy, a number of pregnant employees working underground were moved to the surface. However, only certain of those pregnant employees that were moved to the surface had the necessary skills to take up alternative employment in administrative posts. When the two pregnant employees were moved to the surface and when no suitable alternative employment could be found for them by the employer, they were told to take their four months’ paid maternity leave.
The employees’ dispute was referred to arbitration. The commissioner found that the employees had been discriminated against and found that “the employer’s failure to find alternatives was unfair to the employees and that constitutes discrimination as the sole reason for the failure is the employees’ pregnancy...”
The commissioner found that the employees had been treated differently to the other pregnant employees who took up alternative employment on the surface and that the employer was required to find alternative employment for the employees. The commissioner ordered the employer to compensate the employees for the unfair discrimination, to pay loss of salary and, despite no complaint by the employees about the fairness of the employer’s policy, the commissioner ordered the employer to amend its policy to accommodate pregnant women.
The employer took the commissioner’s award on appeal to the Labour Court where the appeal was successful and the award set aside.
The Labour Court considered the employees’ complaint. The complaint did not relate to the fairness of the employer’s policy. The employees claimed that they were treated differently from other pregnant employees. In essence, they compared themselves to other pregnant employees.
The Court held that that their complaint of unfair discrimination “was negated by the comparator being other pregnant women”. Importantly, it held that the employees “were not treated differently because they were pregnant; they were treated differently from some other pregnant employees who were given alternative employment because they did not have the requisite skills.” It found that the employees had failed to prove discrimination on the ground of pregnancy.
In the absence of suitable alternative positions at the employer, the court found there was no obligation on the employer to create positions for the two employees and it found that the employer had acted lawfully.
As the employees had not complained about the fairness of the employer’s policy, the Labour Court held that it was not within the commissioner’s powers to order the employer to amend its policy.