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Question
Posted by: L | 2003/12/15

Maternity Benefits/Employee Rights

Hi all
Beginning Oct I posted a question with the same subject to which Kate and Purple responded (thanks!) about my stressful job, boss, what my rights were etc. Since then I have read up about maternity leave, asked HR etc, spoke to my boss who has lightened up a lot.

The latest news is that last week I was offered a retrenchment package. The company went through attorneys to draft the letter, so I am sure they have covered themselves well and considered all aspects of labour law. I spoke very nicely with the boss and we agreed that my job is not an 8-5er and that it would be difficult to work late with a small baby waiting at home. The company is trying to downsize at the moment. Another lady I know who is also pregnant has also been offered a retrenchment package.

So the reason I come to this forum is that I am confused and don't know what to do. I cannot afford not to work, and am concerned that I may not find a job afterwards, but I dont want to have to work such long hours when I come back from maternity leave.

ps- i am 24 weeks preg

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Our expert says:
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I hope that the advice from the respondents helps you.

Best wishes

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Our users say:
Posted by: CCB | 2003/12/15

Dear L

As a Labour Consultant, I can tell you that you are entitled to 4 months not 6 months maternity leave as stated above. If you belong to a Union, get your union involved now. Dismissal based on operational requirements (retrenchment) is a long and drawn out process. i.e They must give you and all the other people involved reasons for the dismissal, they must come up with alternatives before retrenching you, i.e retrenchment is a last resort! If they are replacing you they are certainly not in any financial difficulty, and therefore your retrenchment will be automatically unfair, because they are discriminating agaisnt a pregnant woman. Just because they have gone through lawyers means nothing... My lawyer comes to me for Labour Advice!!! DONT SIGN ANYTHING! Contact the CCMA in your area immediately

Good Luck!

Reply to CCB
Posted by: Kate | 2003/12/15

Well, I must say that I think your employer is really chancing it! You cannot retrench anyone in your company and straight away employ someone else. Even if it is in another capacity or position. If the company has to retrench staff it is usually because of financial difficulties. Which clearly your company doesn't face as they are continuing to appoint new staff.

I think you have a case of unfair dismissal and I would most certainly take it up with them. You could also call the CCMA for advice.

Maternity benefits ensure that your job is kept for you for six months from 4 weeks before the baby is born to up to five months afterwards. If you are unable to continue with you duties during this time, you may be moved to another position - one that is equal to the position held before and not of less importance or less salary unless you are working different hours and are both in agreement of this.

I would not accept this sort of treatment and unless you stick up for yourself, they will treat you as they please. Both you and your pregnant collegue need to lodge a complaint against the company via the CCMA.

Unfair dismissal or forced resignation (even forced into retrenchment unfairly) can warrant up to 12 months worth of earnings been payable to you. So if your company are trying to retrench you, bear in mind that you could get a lot of money out of them. If you feel that they have 'covered' themselves enough, you could take the retrenchment package but don't accept anything less than 6 months of salary. Bear in mind that you would only stop working in about 2 months and should be allowed four months maternity leave at least. Which means they should pay you 6 months plus at least 2 months to give you a chance to find a suitable job. Try to talk to you boss and tell him (nicely but firmly) that you feel mistreated and that what they are doing is unfair. You would be willing to accept ....And see what he says. But my feeling is that you have a case against them and deserve better treatment.

Best of luck!

Reply to Kate
Posted by: Purple | 2003/12/15

Hi,

Sorry to hear about all the problems you're going through. I would suggest that you contact a labour lawyer for advise. If you can't afford a private one, contact your local university, the final year students often provide free advice.

I'm no expert, but due to the type of work I do can tell you the following:

-your company can retrench you while you are pregnant, on maternity leave, or on your return from maternity leave. However, this retrenchment must comply with all the laws surrounding retrenchment.

If they are filling your position, then yes, you are correct, they aren't downsizing your position specifically, so they can't really claim to be retrenching you. (I think it is this point here that might make this an unfair dismissal) (dismissal relating to your pregnancy is automatically unfair).
However, they would obviously defend it from the perspective that the company is downsizing. They may try to claim that the new position is an amalgamation of two or more positions, and that you don't have the necessary skills to do the new position.

I see your predicament with not wanting to work such long hours anyway, if you did return to the company. However, despite how nice your boss is being about this, your company is obliged to move you to alternate duties while pregnant/breast feeding if your job poses any risks to you, your unborn child, or your nursing child. I think that very long hours, shift work (where you'd be on shift in the early hours of the morning, working with chemichals, in high temperatures, a work area with lots of stairs, flying etc would count here).

Your boss seems to be approachable, (although unfair in my opinion), so perhaps you could discuss still returning from maternity leave, but in a different position. Perhpas there are other positions that are being joined for which you do have the skills.

Its a bit of a tough one, as they seem to be skirting around in all the grey areas of the law.

the dept of labour website is labour.org , you might find more useful information there.

I really sympathise with you. Its an awful situation to be in.
Do keep in touch and let us know how things are going. We're all thinking of you.

Reply to Purple
Posted by: me again | 2003/12/15

Oh, just thought about something now - they are going to be replacing me with a new recruit, so my job specifically is not being downsized.

Reply to me again

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