Maternity Leave

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Notice: Trying to get property 'ID' of non-object in /home/taumrewa/public_html/wp-content/plugins/download-manager/src/__/Apply.php on line 787

This topic contains 4 replies, has 2 voices, and was last updated by  Taurai Mrewa 2 years, 4 months ago.

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  • #345

    Taurai Mrewa
    Keymaster

    Scenerio:
    Employee A works as a contract employee for company Z. The employee suspects that she is pregnant and wants to know if she is entitled to maternity leave? If so how long will the maternity leave be?

    The fixed term contract is one month. The CBA for the sector does not provide for a maximum period of fixed term contract renewal.

    #346

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    Notice: Trying to get property 'ID' of non-object in /home/taumrewa/public_html/wp-content/plugins/download-manager/src/__/Apply.php on line 787

    Charles Kwinjo

    Facts
    A woman who has been employed on one month renewable fixed term contracts for three years has now become pregnant

    Issue
    Whether a female employee who has been on one month renewable fixed term contracts for three years is entitled to maternity leave and benefits on becoming pregnant now

    Rule of law
    Under common law, absence from work due to pregnancy is taken as a supervening impossibility that justifies the termination of the pregnant woman’s contract of employment
    Maternity rights have now been granted by Statute eg section 39 of the Public Service Regulations S.I. 1 of 2000; sec 18 of the Labour Act etc
    The statutory enjoyment of maternity leave is subject to a number of conditions which include the following:

    qualifying period; sec 18(1): the woman must have been employed for at least one year with that employer in order to qualify;
    actual leave taking; sec 18(2):- she can’t start leave earlier than 45days or 21days before the expected date of delivery;
    maximum leave terms; sec 18(3): she can only enjoy 3 maternity leave periods with one employer;
    maternity leave spacing; sec 18(3): she can only be paid if the maternity leave periods are spaced by at least 24months;
    sick leave suspension; sec 18(6) once maternity leave starts, she cannot be granted sick leave if she falls sick during her maternity leave;
    conditional baby suckling; sec 18(7), (8) & (10); she can only enjoy her entitlement to go and suckle her baby if that entitlement does not interfere with her employer’s work schedules;
    other benefits; sec 18(7) guarantees continued enjoyment of all her ordinary benefits during maternity

    However, the Constitution of Zimbabwe tears into the Labour Act, Public Service Regulations etc in the following manner;

    sec 65(7) of the Constitution says “women employees have a right to fully paid maternity leave for a period of at least 3 months”;
    there are only just 4 maternity conditions in Constitution which are:
    the person entitled to this right must be a woman only;
    that woman must be an employee;
    that woman has a right to be paid her full salary;
    she has a right to a full salary for at least 3 months;
    there are no other conditions;
    this means this maternity right is granted without qualification, that is, the status of the woman’s contract of employment is immaterial
    that means, women on fixed term contract of employment qualify for maternity leave just like permanent female employees
    there is no qualifying service
    there are no formalities such as need for a medical certificate
    sec 327 Constitution – Zim has signed various international treaties and conventions such as Conventions 103 & 183 etc guaranteeing the rights of pregnant women;
    sec 2 of the Constitution guarantees supremacy of the Constitution over any other law in Zim

    Applying the Law to the Facts

    Firstly and most importantly, all sections in the Labour Act that are inconsistent with the Constitution are invalid to the extent of their inconsistency;
    The obligations imposed by the Constitution are binding on every person and must be fulfilled by them

    Conclusion

    The conclusion to this matter may not be not cast in stone as it may be subject to the court’s wide discretionary powers of interpretation informed by the court’s jurisprudential inclination.

    1) On one hand, the woman employee may be entitled to fully paid maternity leave on the following persuasion:-
    the Zim Constitution guarantees pregnancy rights;
    terminating her contract just because she is now pregnant mayr be viewed as unfair discrimination in terms of sec 46, 47 & 56 of the Constitution as read with sec 5(1) of the Labour Act;
    in spite of her one month contracts for 3 years, most CBAs prescribe that an employee who is re-engaged within 2 months of expiry of her previous contract of employment is deemed not to have broken her continuous service with her employer.

    2) On the other hand, the employer may go ahead and terminate the contract on the basis that the employee’s last or most recent one month fixed term contract had expired and was not renewed (employer must take note that fixed term contracts that are renewed on exactly same terms and conditions tend to be challenged for legitimate expectation).
    3) However, the employer must be fully cognisant of the above possible weaknesses in his case should the terminated employee challenge her dismissal

    #348

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    Notice: Trying to get property 'ID' of non-object in /home/taumrewa/public_html/wp-content/plugins/download-manager/src/__/Apply.php on line 787

    Brenald Chinyowa

    The employee is entitled to ML, upto the end of the contract. Renewal of the contract wen the employee is on ML is the employer’s prerogative. Is this the employee asking or it the employer so that i can give proper advice

    #375

    Taurai Mrewa
    Keymaster

    Mr Chinyowa, It is the employee asking for advice.

    #382

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    Taurai Mrewa

    See my interpretation of this issue.

    MATERNITY LEAVE AND FIXED TERM CONTRACTS

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