With child, without pay
The employee was (and still is) employed by the company as an electrician in the gold refining plant. Working in this environment presents a high risk to the health of pregnant employees and their unborn children as they would, inter alia, be exposed to cyanide and radiation. In 2014, the employee fell pregnant and, in accordance with the policy, the employer removed her from her position in the plant. After investigation, no suitable alternative positions could be found for the employee and she was placed on unpaid suspension, prior to her maternity leave commencing.
The employee claimed that the policy contravened section 26(2) of the BCEA because that provision guaranteed her alternative employment on no less favourable terms. The employer claimed that it can only provide suitable alternative work if it is practicable to do so, and that it had not been practicable in this case.
In the absence of a constitutional challenge to the provisions of the BCEA, this judgment establishes that maternity leave policies that require a period of unpaid maternity leave when suitable alternative employment cannot be found are in accordance with current legislation. The judgment also establishes that employers do not have to create positions for pregnant employees who have to be removed from high-risk areas and sets guidelines as to what constitutes suitable alternative employment in these circumstances.
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