Despite some progress in law and culture, women continue to face varying discrimination in the workplace as many organisations remain slow to transform on gender issues. Gugulethu Mhlungu finds out what your rights are in the workplace Pictures: XX
Your rights as a working mom
When Nokukhanya Gumede discovered that she was pregnant, 18 months into a new job, her excitement quickly turned into anxiety about telling her employer. “I was afraid that my boss would dismiss me for having fallen pregnant and needing time off. So, I hid my pregnancy until I started showing at 5 months. They weren’t too happy, and asked how long I would be away for. While on maternity leave, I worried that I would receive a call or email from the office saying I shouldn’t come back,” she shares.
Fear of losing your job
Nokukhanya’s worries are not uncommon and are well placed. “There is still the widespread prejudice that if you hire women of childbearing age, you will lose them and their labour, at some point due to pregnancy. Companies are not at liberty to ask women, especially in interviews, whether they intend to have kids or not, because this is a discriminatory question. But, there are instances when companies find ways to ‘punish’ women for planning to and/or having children such as denying them promotions and salary raises,” says an attorney, Tracey Lomax. In South Africa, direct and indirect discrimination based on gender and/or pregnancy is outlawed by the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000. The Act defines pregnancy as: “pregnancy includes any condition related to pregnancy, intended pregnancy, potential pregnancy or termination of pregnancy.” Tracey says in the instance of discrimination based on your gender or pregnancy, you can take the matter to the CCMA or the Equality Court. But, discrimination can be tricky to prove. “Discrimination can sometimes be reduced to just the employer’s preferences. And, the more indirect it is, the trickier it is to demonstrate. For example, male co-workers playing golf together, where work and promotions are discussed, with no women colleagues can easily be a form of discrimination that’s hard to prove.” Attorney at the Women’s Legal Centre, Chriscy Blouws, advises that any woman experiencing any form of discrimination in the workplace should immediately notify her employer. This is because the Employment Equity Act and the code of good practice places certain obligations on the employer to take reasonable steps to ensure that this does not happen and to handle such complaints efficiently. “In the Wallace vs Du Toit (reported in the labour court in 2006a), a woman was offered a position of being an au pair and two years later while employed, she fell pregnant. When the employer found out, she was dismissed because she had been told, her initial interview, that she could not work there and have children as her time and attention would be split. She took the matter to the labour court and instituted a case of unfair dismissal. She was successful and the court found that the dismissal was unfair as it was solely based on the employee’s pregnancy and no other reason.”
Understanding maternity benefits
After new mothers clear the hurdle of not being discriminated against for choosing to have children, they then have to understand and access their maternity benefits. Tracey explains that: “In South Africa, maternity benefits are governed by the Basic Conditions of Employment Act which states that pregnant workers are entitled to at least 4 consecutive months of maternity leave. The 4 months can be split as 1 month before the birth and 3 months after birth if there is a specific, usually medical, reason for the mother to take time off earlier. While the company may not legally dismiss or permanently replace you while you are on maternity leave, they do not have to pay you because paid maternity leave is not compulsory. The BCE Act also states that workers may not go back to work before 6 weeks after the birth unless their doctor or midwife says it is safe to do so.” The BCE also protects pregnant workers by saying that an employer cannot force a pregnant worker to perform work that is unsafe or unreasonable for them to do. Once on maternity leave, some pregnant women may qualify for Unemployment Insurance Fund (UIF) benefits. Not all workers qualify for UIF, and according to the Department of Labour some of those excluded are workers working less than 24 hours a month for an employer; workers who only earn commission and public servants. But, even for those who qualify, claiming these benefits is easy. Tracey points out that the UIF benefits are capped which means while you may receive the benefits, it will be a significant decrease from your normal salary. She also points out that, “the other challenge with UIF is that it can often take months before those benefits are paid because of delays in the system.” Fatima Noorbai, mom of a 6-month-old son, says she waited 8 weeks for her UIF benefits. “The process was frustrating. I could only apply once the baby was born. So, I had to find time to go to the Department of Labour with a newborn. And, I still had to find a way to make it through two months with no income since my company didn’t pay towards my maternity leave. I also couldn’t have navigated that application process without a labour lawyer because it was confusing and time-consuming.” Workers who miscarry in the third trimester or have a stillborn child can also claim UIF for six weeks.
South Africa does better than a lot of countries in terms of legal protections against discrimination and maternity benefits, But, according to the World Economic Forum’s (WEF) 2017 Global Gender Report findings, South African women continue to earn less than men with the gap estimated to be between 15 and 17%. Globally, the picture is no better and the same WEF gender report noted that the current worldwide gender gap would take 200 years to close. Medical doctor and reproductive justice advocate, Dr Tlaleng Mofokeng, says there are broader systemic issues at play with regards to women in the workplace. “Companies aren’t seeing women as people, so they get punished for taking time off because they are only seen as labour. Child-friendly workspaces that allow mothers to work and see their children are still lacking. Other than the bathroom, where can breastfeeding moms go? These are some of the things that either help working mothers do well or hinder them,” he says. Tracey adds that while child support grants, UIF and free access to public healthcare are great, the real test is whether these things are accessible. “We need to look at access to early childhood development centres, crèches and schools to equalise the playing field for women. Government still needs to work on making these things available to people when they need them.”
You can find the Basic Conditions of Employment Act and the guide to maternity benefits on the Department of Labour website: labour.gov.za
For free legal advice and assistance, contact the Women’s Legal Centre: wlce.co.za