Case Note: Tshegofatso Manyetsa V New Kleinfontein Gold Mine (Pty) Ltd (JS 706-14)

Ms Manyetsa (“the Applicant”) works as an underground electrician for New Kleinfontein Gold Mine (Pty) Ltd (“the Respondent”) . In this matter, she sought damages against the Respondent based on sec 6(1) of the Employment Equity Act (“EEA”) for loss actually incurred when she, in terms of a policy (Maternity Leave and Women in Risk Area Policy)(“the Policy”), was placed on unpaid maternity leave and further extended unpaid maternity leave when she became pregnant.

The Policy was adopted on 3 July 2013 and was meant to protect pregnant women rendering services in work areas defined as high risk or hazardous to their health and that of their children. In terms of clause 5.4 thereof, the employer could, upon learning of the pregnancy of a female employee, endeavour to find suitable, alternative employment for the employee and should this endeavour not yield the desired result, to place the employee on unpaid maternity leave.

The Applicant was requested to attend a management meeting where it was discussed if she could instead be placed in the position of control room supervisor. It was decided she could not be put in this position as she had no underground working experience. She was then invited to apply for the position of receptionist, however, on terms less favourable to her ordinary terms of employment and she refused to take the position. From July 2014 until November 2014, she was placed on maternity leave.

There were 4 main issues for determination, however, three are important for purposes of this CLE. The issues were whether the said clause 5.4 of the Policy was in contravention of (A) s26(2) of the Basic Conditions of Employment Act (“the BCEA”), (B) s6 of the EEA and if not, was the Applicant discriminated against on the grounds of race and (C) If the Respondent did indeed endeavour to find the Applicant suitable alternative employment.

(A)      Clause 5.4 of the Policy essentially gives effect to s26 of the BCEA which states that an employer must endeavour to find a pregnant female employee suitable alternative employment. The Applicant submitted that this section of the BCEA guaranteed her alternative employment. The Court, however, held that this view was wrong and that the Applicant misconstrued the section by not reading it in totality in that s26(2)(b) provides that an employer is under this obligation if practicable to do so. Furthermore, “practicability” is attached to “suitability” and “availability”. What may be available may not be suitable and conversely, what may be suitable may not be available. Section 26 of the BCEA, upon a proper reading, does not guarantee alternative employment and clause 5.4 was found to not be in contravention of the BCEA.

 It was noted, however, that this legislation fell short of international standards in that Article 6(2) of the International Labour Organization’s Maternity Protection Recommendation states that where there is no suitable, alternative employment, the employee must be placed on paid maternity leave.

(B)       Sec 6 of the EEA states that no person may unfairly discriminate against another on the basis of, inter alia, pregnancy. As was laid out in Harksen v Lane NO and Others 1998 (1) SA 300 (CC), the test for whether the Policy discriminates against pregnant women is to determine whether the Policy differentiates between people, if it does, then if such differentiation amounts to discrimination and if it does, to determine whether such discrimination is unfair. Whether the Policy discriminates against pregnant women, the Court held, needs to be weighed against the conclusion that the Policy is not in contravention of the BCEA especially because the Policy is modelled on the BCEA. It was further held that due to this conclusion, there is no basis for concluding that the Policy nonetheless contravenes sec 6(1) of the EEA. To conclude that it does would be to attack the constitutionality of the BCEA, which was not an issue before the Court. It was, in any event, held that the Policy did not unfairly discriminate against the Applicant as sec 6(2) of the EEA states that there is no unfair discrimination where the basis of the discrimination is an inherent requirement of a job.

The Applicant further stated that she was discriminated against because of her race in that certain white employees were allowed to work in high risk areas during their pregnancy. The Court held that the proposition is problematic in that the Applicant was basically saying that if white employees can be placed in dangerous situations while pregnant, black employees should also be placed in such situations. Furthermore, by the Respondent’s evidence, the white employees referred to were not placed in those situations in terms of the Policy and once it was discovered that they were pregnant, they were immediately removed from those stations.

The other white employees referred to by the Applicant who continued working even after pregnancy, continued their employment as they were, all along, in non-hazardous areas.

(C)      With regard to whether the Respondent endeavoured to find suitable, alternative employment for the Applicant, the Court held that this enquiry is a question of fact and evidence.

The Court reiterated the issue of suitability and availability. Regard was had to the three positions referred to above. The Applicant submitted that she could have been offered employment in admin, however, as already stated, this position was not in the Respondent’s labour plan and so the position was not available.

The Applicant was invited to an interview for the position of receptionist, which she refused when she found that it would be on terms less favourable to that of her own. Here it was held that the job was not suitable.