Your rights as a woman in the workplace
To mark International Women’s Day, it’s worth celebrating that South Africa has one of the most progressive Constitutions in the world. Our Constitution enshrines equality, dignity and the right not to be discriminated against based on one’s gender or race. These important principles are also carried out in specific legislation such as The Employment Equity Act (EEA), The Labour Relations Act (LRA) and The Basic Conditions of Employment Act (BCEA).
The Labour Relations Act, Pregnancy, and Maternity Leave
The LRA stipulates that a dismissal is automatically unfair if an employee is dismissed because of any reason due to her pregnancy (whether she is already pregnant, intends to get pregnant, or has complications in her pregnancy) and can thus be compensated with up to 24 months’ remuneration. It is important to further note that employees are entitled to four consecutive months of leave. This maternity leave can be taken anytime from four weeks prior to the employee’s due date. An employer may not allow an employee to return to work within six weeks after the delivery date. Maternity leave is usually unpaid unless paid leave is stipulated in the employee’s employment contract. Pregnant employees can claim from the Unemployment Insurance Fund during this time, if they are not being paid.
The Employment Equity Act and Equal Pay
The EEA not only reiterates it is unfair to discriminate against an employee’s gender but was also recently amended to introduce sections pertaining to equal pay for work of equal value principle – irrespective of gender. Should an employer be found guilty of unfair discrimination, they may be ordered to correct the earnings of affected employees.
Basic Conditions of Employment and the role of our courts
The BCEA further protects pregnant employees/new mom employees as Section 26(1) states: “no employer may require or permit a pregnant employee or an employee who is nursing her child to perform work that is hazardous to her health or the health of her child.” Employers are legally obliged to assess and control the risks that employees may experience in this respect.
We are also seeing protection against discrimination being amplified in the courts. In the Eastern Cape High court, a recent judgement by Judge Kroon once again placed sexual harassment and assault against women in the spotlight. He stated:
“A sexual assault on a woman is a horrendous act and constitutes a heinous violation of a woman’s dignity, privacy and bodily integrity. It damages her reputation. It denies her intrinsic worth, her equality. It dehumanises her. It makes her into an object.”
Despite very fair laws and the fact that our magistrates and judges are continuously attempting to protect women against discrimination, statistics, courtesy of Stats SA, show that men still dominate managerial positions (66.9%) whilst women are in the minority (33.1%). There are several ways to interpret the reason for this disparity; the most popular being that a woman’s role within the family unit often prevents her from having a high responsibility position at a company. I must, however, disagree with this theory as I don’t see this play out in the matters I deal with. In most of the divorces I have assisted clients with recently, the courts and family advocates have shown they are more favourable towards awarding shared primary care of children. This is usually done on a week-by-week basis, allowing both parents to play a pertinent role in their children’s lives. The courts are becoming far more encouraging of both parents sharing parental responsibilities rather than adhering to stereotypical gender roles within a family unit.
While we have seen progressive development in many South African laws, we are only starting to see how these laws are being implemented. We are on the cusp of exciting times where we as a country will not only be ’non-discriminatory’ on paper but will be in a position to actively ensure equality is truly experienced by all South African citizens.
