Maternity leave is a crucial period for new mothers to provide them with the necessary time and support to care for their newborns. When an employee takes maternity leave, colleagues often step in to cover the employee’s responsibilities. During the employee’s absence, employers may face various challenges, including financial constraints or restructuring needs that may lead to tough decisions such as retrenchment, and questions may arise about the necessity of her role and the possibility of redundancy. 

Can the employer terminate her in such circumstances? While courts protect pregnant employees against dismissal based on pregnancy, intended pregnancy, or related reasons, they recognise the burden employers may bear to keep the position open. 

Legal Framework

The redundancy issue came to light in the matter between Brandt v Quoin Rock Wines [2022] C152-2021 (LC). The Cape Town Labour Court was tasked with deciding whether Quoin Rock Wines (the Respondent) had unfairly dismissed Brandt (the Applicant) due to her pregnancy.

Brandt, the company’s financial manager, became pregnant after undergoing IVF treatment. Despite informing the company of her pregnancy and expected due date, complications led to her child being born prematurely, requiring hospitalisation. Brandt continued some duties during this period, going the extra mile to ensure smooth operations while in the hospital.


She submitted a maternity leave plan to the CEO but continued, during the COVID-19 pandemic, to delegate some tasks to a colleague. Meanwhile, the CEO took over some of her responsibilities and hired an external accountant for tax matters previously handled by Brandt. Eventually, the CEO decided to retrench Brandt, citing redundancy due to alternative arrangements and potential cost savings. Brandt argued that her job wasn’t redundant as the CEO and others were still performing her tasks.

Ruling

The court found that Brandt demonstrated her dismissal was linked to pregnancy, making it automatically unfair. The burden of proof shifted to the employer, who failed to establish genuine operational reasons for dismissal. The court concluded that pregnancy-related issues were valid reasons, awarding Brandt 16 months’ salary as compensation.

Balancing Operational Needs and Employee Rights

Employers must comprehend the proper implementation of retrenchments in alignment with operational needs in the workplace. Preceding legal judgments have highlighted the importance of a comprehensive approach to safeguarding women’s rights and promoting equality. The challenges employers face when employees initiate maternity leave are recognised both societally and legally as an acknowledgement of women’s equal status within the workplace.

Conclusion

Employers can retrench a pregnant employee for genuine operational reasons, adhering strictly to procedural requirements. However, employers must exercise caution when contemplating the retrenchment of pregnant employees, as a commissioner may perceive such actions as a strategy to justify unfair dismissal based on pregnancy.

Should you need assistance with the retrenchment process, don’t hesitate to contact our offices at 0861 737 263. Invictus Group specializes in retrenchments and can assist clients in ensuring a smooth and efficient process.