GN Total HR Solutions cc

08/04/2025

PREGNANCY – WHEN MUST AN EMPLOYEE INFORM THE EMPLOYER OF PREGNANCY?

Pregnancy – When must an employee inform the employer of pregnancy?

Employers are often placed in a difficult situation with regard to the pregnancy of an employee.

The situation may arise because even at the interview stage, the employee is aware of the pregnancy, but fails to disclose this to the employer. Another scenario is that an existing employee fails to disclose her pregnant condition to the employer until the last available minute, thus placing the employer in the undesirable situation of having to find a replacement in a hurry so that work can continue while the pregnant employee is on maternity leave.

The Basic Conditions of Employment Act states only that the employee must inform the employer of the requirement for maternity leave at least one month before the maternity leave is to commence. There is no legislated onus on the employee to disclose her pregnant status at any other time. In some cases, employers have taken the dismissal route.

In one instance, a probationary employee was dismissed on the grounds that she had failed to disclose the fact of her pregnancy at the interview stage, and had aggravated matters by failing to disclose it to the employer during the probationary period. The employee stated that she was afraid to disclose the fact of her pregnancy, in case her application for employment was ruled unsuccessful on the grounds of pregnancy, and that she was afraid to disclose it during the probationary period in case she got dismissed on the grounds of pregnancy. It turned out that her fears were well founded.

The employer maintained that the failure to disclose her pregnant condition had caused a breakdown in the trust relationship, and the employee was dismissed on those grounds. We know that generally, the onus to prove a fair dismissal rests with the employer, but in this particular case it was ruled that if the employer is aware that the employee is pregnant, and the employee can show that the dismissal was possibly for that reason, then the dismissal will be automatically unfair. The employer vigorously maintained that the dismissal was purely because the trust relationship had broken down, and that the employee was not dismissed because of a pregnancy.

However, the Court did not agree, and it was found that the true reason for the applicant’s dismissal in this case was because of the pregnancy, and not because the trust relationship had broken down, and therefore the dismissal was ruled to be automatically unfair. In another instance a fixed term contract employee was invited to apply for a vacancy for a permanent post that had arisen in the workplace. Before the post was actually advertised, the employee inform her supervisor that she was pregnant. She did apply for the permanent post but was informed that the application was unsuccessful. The court ruled that the dismissal was automatically unfair, having been effected for a reason related to pregnancy.

Another case involves an employee who was in an advanced state of pregnancy, and she complained that she was tired. The employer dismissed her on grounds of incapacity, the Court found that the dismissal was based on pregnancy, and was found to be an automatically unfair dismissal.

Finally a further instance involved a pregnant employee who wishes to take additional time-off for a confinement, and it was agreed by the employer that she could take her annual leave. The employer later retracted this permission and informed the employee that she need not return to work after the birth of the child. The applicant referred a dispute of unfair dismissal, and although dismissal was denied by the employer, the court concluded that the applicant had been dismissed for a reason related to pregnancy, thus resulting in an award of automatically unfair dismissal.

Such dismissals can be a very expensive matter for the employer, because usually and especially in dismissals related to pregnancy, the maximum of 24 months salary is awarded as compensation. Employers should be very careful before dismissing pregnant employees, because there is every chance that even if there are other reasons for dismissal, the employer will have to have a clearly it tight case in order to prove that the dismissal was not in any way related to the pregnancy of the employee.

17/08/2023

Congratulations to Mtrack, SA Electronic Tracking Systems, on 20 years in business. Proud of all of you. From all of us at GN Total HR Solutions cc
Proud to be a part of your journey.

02/07/2023

GN Total HR Solutions en Profile Doors pronk by Bokkieweek die jaar 3 tot 7 Julie in Kroonstad.

10/02/2023

Great promotional material, looks good.
Thank you La Fleur Designs, a job well done.

01/02/2023

With the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace published earlier this year, harassment in the workplace is the subject of many training sessions, both on the shop floor and in boardrooms. The importance of this education cannot be overstated given how...

31/01/2023

GN Total HR Solutions employee of every month.

31/01/2023

Contact us for all your labour and human resource needs.

20/01/2023

Mr Nienaber's dad, Attie Nienaber, had the privilege to hand overnight bags to all the kids at Aniko Place in Frankfort on behalf of all of us at GN Total HR Solutions. We are so proud and privileged to be involved and to make a difference.
Thank you La Fleur Designs for a job well done.

16/01/2023

16/01/2023

After the festive season many employers will be left in the dark regarding the whereabouts of some of their employees that have failed to return to work. Did the employee find another job, perhaps fell ill, won the lotto, found new love, and cannot or will not return to work?



The reality is that the employer will not know and can therefore not assume that the employee has no intention to return to work. In such circumstances the onus rests on the employer to establish whether the employee will return to work or not before termination of employment may be considered.



The Oxford dictionary defines the word ‘abscond’ as leaving hurriedly and secretly. It can therefore be said that the act of absconding means that one does not have the intention to return to work. In circumstances where the employer does not know whether the employee will return to work or not, the employer will have to establish this before the employee can be dismissed. It is therefore common practice that un-communicated and unauthorised absence for a period of more than three or five days, depending on the employer’s disciplinary code, will be dealt with as abscondment.



Communicated absence from work cannot be dealt with as abscondment because the employee indicated intent to return to work by informing the employer of his / her whereabouts.


Employers must refrain from acting hastily by terminating the employment of employees prematurely, even for extended periods of absence from work.


Should the now ex-employee return to work after termination of employment based on abscondment, he / she must be given the opportunity to appeal against such decision. The ex-employee will therefore be required to explain why he / she failed to report for duty, why he / she failed to communicate such absence to the employer and lastly, why he / she failed to respond to attempts made by the employer to establish contact.


So how does one establish whether the employee intends to return to work?



Step 1

The onus will be on the employer to enquire about the whereabouts of the employee and to instruct the employee to return to work. This is normally done as follows.



Stop paying the employee. The employer does not have to pay the employee if the employee failed to report for duty without permission or justification. Employees are quick to make contact with the payroll office when they are not paid.


Call the employee on his / her cell phone. It is surprising that many employers fail to do this and skip straight to sending a letter by registered mail. Note the date and time of the call and when messages were left. This will form part of your evidence at the CCMA to prove that you have attempted to contact the employee to establish his / her whereabouts.


Enquire with friends at work and family members. Note their comments.


Ensure that an obligation is placed on employees to inform the company of any changes to their residential and/or postal addresses. Employees must understand the consequences of not updating such information.


Send a letter to the employee (see example below) by registered mail / courier or deliver it personally to the last known address of the employee. An alternative if the aforementioned is not possible, is to take a photograph of the letter and to send it to the employee per WhatsApp. The employer will be required to retain screenshots of such communication as evidence, indicating at least two grey ticks, thereby confirming that the message was delivered.


Dear Employee



You have been absent from work without permission since 5 January 2023 and failed to communicate your absence to the company. You are instructed to return to work immediately. Failure to do so will lead us to believe that you have no intention to return to work and may lead to your dismissal.



If you do not return to work on the ### of January 2023 a disciplinary hearing will be held which may lead to your dismissal.



Signed



The Employer



What to do if the employee fails to report for duty on the stipulated dated?



Step 2

The employer will have to follow-up the first letter with a notification to attend a disciplinary enquiry. The employee will be charged with abscondment with an alternative charge of unauthorised absence from work for an extended period. A second charge may be added to the charge sheet if the employee was in terms of policy or contract required to communicate such absence with the employer.



An important point to remember is to remind the employee of the consequences of non-attendance. If the employee does not attend the hearing, it will commence in absentia. If the employee appears at the enquiry, he / she will have to justify his / her absence from work.



Step 3

If the employee is dismissed in absentia, a third letter will have to be served on the employee confirming the dismissal and reminding the employee of the right to refer the matter to the CCMA within 30 days from the date of dismissal.



Justifying the dismissal

But what does one do if the employee decides to return to work after the dismissal? Can one simply indicate to the employee that he / she was dismissed and wish him / her a bright future? The answer is no. The employer must first give the employee the opportunity to be heard. It is not necessary to convene a fresh disciplinary hearing, the employee can just be given the opportunity to appeal against his or her dismissal, citing reasons for the extended period of absence.



This may pose a new problem for the employer since the employee may have valid and reasonable justification for staying away from work and not responding to the requests of the employer to return to work. The employer will be required to carefully evaluate the dismissal of the employee and must be able to prove that:



Attempts were made to get the employee back to work.

The employer allowed a reasonable period before dismissing the employee.

The period of absence from work was unreasonable when weighed up against the operational requirements of the company, the importance of the position and the impact on other employees.

Length of service, remorse, necessity, and other mitigating factors must be considered against the seriousness and consequences of the actions of the employee.



Recently the Labour Court was required to deal with a review application lodged by a dissatisfied employer that dismally failed at the CCMA. In Country Wide Truck Sales (Pty) Ltd v. Sibuyi NO and Others (JR 281 / 21) [2022] ZALCJHB 342 (29 November 2022), the employer instructed an employee with 20 years of service, to report to another company and to resume duty there. This was because of alleged poor work performance. The employee refused and was subsequently dismissed for absconding from the employ of the other company where he was instructed to report to for duty. The employer could not prove that the employee was a poor performer, that proper procedure was followed or that the employee agreed to work for the other company. The employee could not have absconded because he was at all times available to work and had no intent to not continue with the employment relationship with Country Wide Truck Sales.



On review, the employer contended that the CCMA lacked jurisdiction to entertain the unfair dismissal dispute referred to it. The employer now argued that the employee was a subcontractor, this despite not pursuing the aforementioned during arbitration. The Labour Court held that the employee was indeed an employee, a long serving one for that matter, and was unfairly dismissed based on alleged abscondment. The arbitration award stood, ordering the employer to pay the employee 12 months’ remuneration.

08/12/2022

Motor vehicle accidents, IOD or not?



(Article updated 29 Nov 2022)



The Compensation for Occupational Injuries and Diseases Act, Act 130 of 1993, largely governs work-related compensation claims and related matters in South Africa.



The main objective of the Act is to provide compensation for disablement caused by occupational injuries or diseases sustained or contracted by employees or for death resulting from injuries or diseases and provide for matters related to this. In terms of the Act, compensation for employees and their dependants includes medical costs or constant attendance care allowance and funeral costs where applicable.



Section 1 of the Compensation for Occupational Injuries and Diseases Act (COIDA) defines an occupational injury as ‘‘an accident arising out of and in the course of an employee's employment and resulting in a personal injury, illness or the death of the employee’’. To qualify for a COIDA-related claim, an accident should ‘‘arise out of and in the course of an employee's employment’’. These claims are generally referred to as injury on duty (IOD) claims, and are claimed from the Compensation Fund. The main objective of the Compensation Fund is to provide compensation for disability, illness and death resulting from occupational injuries and diseases.



In South Africa, many road accidents cause serious injuries and death. One of the questions that frequently arise is, ‘‘If an employee were injured or dies because of a work-related vehicle accident, would the employee (or, in case of a fatal accident, the dependants of the deceased employee) qualify for compensation?’’



For an IOD or fatality due to a work-related vehicle accident to be claimable from the Compensation Fund, the accident should have occurred while the employee was on duty, carrying out a function that he or she was employed to do.



If the vehicle accident did not occur within the cause and scope of the employee’s duty, costs due to injury could alternatively be covered by the Road Accident Fund (RAF).



The RAF is a statutory body that exists to provide compensation to the people of South Africa in terms of the Road Accident Fund, Act 56 of 1996, for loss or damage as a result of bodily injury or death caused by negligent driving within our borders. The RAF provides compulsory coverage for road users. If a vehicle accident did not occur within the cause and scope of the employee’s duty (if it is not an IOD), victims could for example file a claim for compensation against the RAF. This coverage covers all people who are involved in an accident, including victims and their dependents.



Not all injuries are covered by the RAF, only injuries that are generally considered as serious.



Neither the RAF nor the Compensation Fund accepts liability for vehicle damages.



Section 22(5) of the COIDA elaborates on travel-related IOD claims. The subsection stipulates that ‘‘the conveyance of an employee free of charge to or from his place of employment for the purposes of his employment by means of a vehicle driven by the employer himself or one of his employees and specially provided by his employer for the purpose of such conveyance, shall be deemed to take place in the course of such employee's employment’’.



For the claim to be accepted by the Compensation Fund, the following criteria must be met:

Was the vehicle provided by the employer?
Was the vehicle provided free of charge?
Was the vehicle provided for the purposes of work/ employment?
Was the vehicle driven by the employer himself or one of his employees?


Claimants should also be able to prove that they travelled on the most economical route to work when the accident occurred.



Employees travelling to the office and back home with a private vehicle would not be covered, as they would not be on duty while en route to work.



On the other hand, employees who travel for business, are drivers of company vehicles, or are transported as part of their job would be covered if they are injured or die due to a work-related vehicle accident.



Call-outs: When an employee is called out to perform work, these individuals would be covered while travelling to work as well as the period during which they perform work for the employer. Please note that these individuals would normally not be covered when travelling back home (except when it is a company vehicle provided free of charge for the purpose of work).



Standby: When a standby worker (like a maintenance worker who is performing official standby duty) is called out by the employer and is injured or dies due to a vehicle accident while travelling to and from work, it should be viewed as an injury on duty. Standby workers who are called out would be covered while travelling to and from work, even if they are making use of private transport.



The organisation’s policy on standby duty may also have an influence on the Compensation Commissioner’s ruling on an IOD.



The following questions are normally asked by the Compensation Commissioner’s office if an employee is involved in a motor vehicle accident and a claim for compensation is lodged:

Describe in detail how and where (street names etc.) the accident happened.
Include detailed statements by the driver of the vehicle and eyewitnesses to the accident, describing how and where (street names, etc.) the accident occurred, as well as a diagram.
Who is the registered owner of the vehicle?
Name the place of departure and the destination of the vehicle at the time of the accident.
Was the vehicle travelling on a direct route to its destination from its place of departure?
What was the purpose of the journey?
Was the vehicle specifically used for the purpose described in the above question? (For example, if the purpose of the journey was to deliver bread, was the vehicle assigned to the task of transporting bread?)
What control did you exercise over the driver of the vehicle for determining the vehicles point and time of departure, destination and route, as well as being able to discontinue the transport at any time?
Was transport supplied free of charge to employees to transport them to and from work?
The registration number(s) of the vehicle(s) involved in the accident.


It is also important to remember that, if there is any uncertainty relating to an IOD, complete and submit the required forms to the Commissioner and allow them to make the ruling on the claim. COIDA always works on the proviso of “at the discretion” of the Compensation Commissioner.