Recently, a colleague of mine brought a legal question involving maternity leave and renewal of fixed-term contracts. The facts surrounding this question can be summarised as follows:
An employee has been signing fixed-term contracts from 2017. She has applied for maternity leave and the company is now of the position that it won’t renew the contract because it doesn’t want to pay maternity leave. The employee has been told that she can always come back after giving birth to her child. The company intends on hiring someone to replace such an employee during the period of maternity leave.
I will argue that employees on fixed-term contracts are entitled to maternity leave, in the same manner, the right is conferred to employees on permanent contracts. I will also argue that this case points to systematic discrimination based on pregnancy and that the employer in this instance is under an obligation to renew the fixed term contract to ensure that the employees right to maternity leave is upheld. In the last section, I will explore the legal remedies that can be available to an employee who is seized by such a daunting situation.
Unfairly discriminating against employees based on gender and pregnancy is prohibited by the Labour Act (Chapter 28.01). Discrimination has been defined as the treatment of employees favourably or unfavourably based on various grounds. When the grounds for discriminating against an employee are based on inherent job requirements there is no unfair discrimination. Problems arise when the grounds for discrimination are explicitly prohibited by an act such as the Labour Act.
The Labour Act outlaws the discrimination of employees based on gender and pregnancy. Section 5 (1) of the Labour Act[i] reads as follows:
“No employer shall discriminate against any employee or prospective employee on grounds of race, tribe, place of origin, political opinion, colour, creed, gender, pregnancy, HIV/AIDS status…”
It is submitted that the moment an employee’s contract is not renewed simply because she has fell pregnant a case of unfair discrimination on one of the prohibited grounds would have occurred. The pregnant employee is going to be treated less favourably compared to those employees who are not pregnant. This unfair treatment is what section 5(1) was created to cure. It is argued that based on the facts presented above, the employer indeed discriminated against the female employee. It follows that this action alone will be accompanied by various legal consequences. Such consequences will be discussed under the section on remedies.
Maternity Leave Provisions
The Labour Act provisions on maternity leave are important in resolving the case at hand. The most important part of these provisions is Section 18(1) of the Labour Act which reads as follows:
“Unless more favourable conditions have otherwise been provided for in any employment contract or in any enactment, maternity leave shall be granted in terms of this section for a period of ninety-eight days on full pay to a female employee who has served for at least one year.”
Section 18(1) is clear cut. It provides that an employee who has served the employer for a period of one year is entitled to 98 days of maternity leave. The employee mentioned in this section, it is submitted, is one on either a fixed-term contract or one on a permanent contract. What is decisive is whether the employee has served the employer for a period of at least a year in order to qualify for maternity leave.
From the facts in casu, the employee has been on a fixed-term contract from 2017 to 2019. More than a year has elapsed which means that the employee qualifies for paid maternity leave. This picture would have been totally different if the employee’s continuous service was less than one year.
It is important to note that in terms of the said section, employers can provide for better terms in a contract of employment or another enactment. Such better conditions should not relegate the position in the act. This means that employers can provide for conditions such as lowering the qualifying service for maternity leave or coming up with long periods of maternity leave.
It is thus vehemently argued that Section 5 (1) (Anti-Discrimination Provision) when read together with Section 18 (1) (Maternity Leave Provision) allow for employees on fixed-term contracts to be afforded paid maternity leave without any derogation. What this means is that that a fixed-term contract should be extended in order for an employee to be afforded an opportunity to enjoy paid maternity leave as found in the labour act. Failure to extend such a contract and terminating in the grounds of pregnancy will come with serious legal ramifications.
Non-Renewal of a Fixed Term Contract
The non-renewal of a fixed term contract can have serious repercussions on the employer if it does not take into consideration section (12)(3)(b) of the Labour Act.
The section reads as follows:
“An employee is deemed to have been unfairly dismissed—
(b) if, on termination of an employment contract
of fixed duration, the employee—
(i) had a legitimate expectation of being re-engaged;
(ii) another person was engaged instead of the employee”.
From the facts provided at the start of the article, it has been pointed out that the employer in question intends to hire labour to replace those employees whose contracts are not renewed. Further, the employer seems to be suggesting that but for the pregnancy, the contracts could have been extended. This shows that the employees had the legitimate expectation of having their contracts renewed. In the circumstance, it is risky for the employer to decide to terminate the contract citing the pregnancy and proceed to hire another employee.
Labour Amendment Act, 2015
The Act which came into force in 2015 came with provisions that were meant to cure the anomaly that arises when a fixed-term employee is denied an opportunity to enjoy benefits that accrue to employees on permanent contracts despite the continuous renewal of the contract.
The important provision is section 12 (3a) which provides as follows:
“A contract of employment that specifies its duration or date of termination, including a contract for casual work or seasonal work or for the performance of some specific service, shall, despite such specification, be deemed to be a contract of employment without limitation of time upon the expiry of such period of continuous service as is-
(a) fixed by the appropriate employment council; or
(b) prescribed by the Minister if there is no employment council for the undertaking concerned, or where the employment council fixes no such period;
and thereupon the employee concerned shall be afforded the same benefits as are in this Act or any collective bargaining agreement provided for those employees who engaged without limit of time.”
The Labour Amendment Act provisions point to the need for Labour Practitioners, HR Practitioners and lawyers alike to be aware of the legal provisions in specific industries. At the time of writing this article, the minister has not fixed the period of continuous renewal of fixed-term contracts in compliance with this provision. Various industries have however prescribed the number of permissible renewals.
Be that as it may, it is submitted that nothing in the labour act or any provisions preclude the benefit of maternity leave to be afforded to employees on fixed-term contracts. As already mentioned, non-renewal of contracts of fixed-term duration based on pregnancy may result in unfair discrimination allegations as well as the evocation of the doctrine of legitimate expectation all which result in serious legal problems for the company.
Available Legal Remedies
From the legal provisions discussed above, it is argued that the employee has a wide range of remedies available to her. These range from criminal remedies, civil or labour law-related remedies and constitutional remedies. Some of these remedies discussed in this section.
Once is accepted that by failing to renew the employee’s contract based on her application for maternity leave is tantamount to discrimination, then remedies to cure this discrimination can be evoked. One of these remedies is provided for under section 5 (3) which reads:
“Any person who contravenes subsection (1) or (2) shall be guilty of an offence and liable to a fine not exceeding level eight or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment”.
It is submitted that Section 5(3) points to the fact that violating discrimination provisions may warrant criminal prosecution. Such a prosecution might result in the payment of a fine or the imprisonment of the employer. This is not the only remedy under the section. Other remedies are also provided for.
The section provides for other remedies as follows under subsections 4 and 5:
“(4) Without prejudice to any other remedy that may be available to him in any competent court, any person who is aggrieved by any act or omission of an employer in contravention of subsection(1) shall be entitled to claim or apply under Part XII, as the case may be, for either or both of the following remedies—
(a) damages from the employer for any loss caused directly or indirectly as a result of the contravention;
(b) an order directing the employer to redress the contravention, including an order to employ any person, notwithstanding that the vacancy in question has already been filled and notwithstanding that the employer may be liable to any claim arising from the need to dismiss or terminate the services of any other employee who has been engaged.”
“(5) Without prejudice to any other remedy that may be available to him in any competent court, any person who is aggrieved by any act or omission of any person in contravention of subsection (2) shall be entitled to claim or apply under Part XII, as the case may be, for either or both of the
(a) damages from such person for any loss caused either directly or indirectly as a result of the contravention;
(b) an order directing such person to redress the contravention.”
it is clear that discriminating against an employee can have far-reaching consequences. Besides the criminal sanction prescribed under the section under consideration, an employee can be entitled to damages. The same employee is also entitled to a court order directing that she be retained by the employer. What is important to note is that section 5 does not preclude the employee from pursuing other remedies provided for in the Labour Act or the Constitution.
From the foregoing discussion, it is submitted that employees on fixed-term contracts and those on permanent contracts should be afforded the same maternity leave conditions. Section 18 of the Labour Act does not distinguish between maternity leave given to a fixed-term employee and that which is afforded an employee on a permanent contract. Once the period of qualifying service has been achieved, the employee is entitled to the right conferred by the act. In certain circumstances, it is argued, it might be necessary to extend a fixed-term contract in order to afford the employee an opportunity to enjoy this maternity leave. Failure to renew such a contract, will depending on the conditions, amount to discrimination and might result in complaints of unfair dismissal.
[i] Labour Act (Chapter 28.01)