Our fixed-term contract employee just announced she's pregnant... What now?
Every month, I receive questions about maternity leave like:
'Does annual leave accumulate during maternity leave? '
'How much must I pay?'
And of course, 'How long is my employee entitled to?'
These questions are all pretty easy to answer because the Basic Conditions of Employment Act covers them. But one question that doesn't often come up often, in fact one I haven't heard before, is:
'We hired a lady on a one-year contract basis (01 March 2013 – 28 February 2014) to work on a specific project. She's just told us she's pregnant – which means she'll be going on maternity leave before her contract's come to an end. How do we treat this?'
It goes without saying that it's difficult to get out of a fixed-term contract employee at the best of times. And now the employee won't be able to fulfil her obligations, so you probably think it's ok to just let her go now... But hold your horses!
Let's run through some of the other questions that come along with this scene before you make your move.
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Will she be entitled to the balance of her contract once she has returned from maternity leave?
Assuming she'll go on maternity leave in November, will she then be entitled to come back after four months maternity leave, to finish the last four months of her contract?
No, she's not entitled to claim the extra four months since her contract was for a fixed term and had an end date. But, if her four months maternity leave fell in the middle of the 12 month contract, you'd have to let her come back and finish her contract.
Are we entitled to end her contract prematurely and hire someone else to fill in for her?
Definitely not! You'll be opening yourself up for an unfair dismissal case at the CCMA – and she'd probably win too! But you could hire someone for the balance of the four months since you won't be paying her anyway – see the explanation below about payment for maternity leave.
Do we have to pay her for maternity leave?
You don't have to pay her. The BCEA just says employees are entitled to four months maternity leave, but not maternity pay. She can claim benefits from the Unemployment Insurance Fund if she has enough credits with them, don't worry though, this is something she'll need to sort out for herself.
So before you even think you have an easy way out... Think again!