Before you decide to retrench Bronwyn who's just returned from maternity leave, make sure you know this all important rule
Your employee, Bronwyn, has just returned from maternity leave.
While she was away, your company went through some changes. So due to these operational requirements, you want to retrench her.
Before you do, make sure you know this all important rule so you can avoid finding yourself on the wrong side of labour law.
Can my employee resign when she's on maternity leave?
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If your employee is on maternity leave, I'm willing to bet you've wondered if she'll even come back after tasting how great life is spending time at home with her beloved newborn.
Truth is, most mothers only realise how precious time with their little one is after they've given birth... They start worrying about not being there to witness their baby take their first step, say their first word or cut their first tooth.
But as exciting as this time is for your employee, it can be a stressful time for you...
After all, not only do you need to look for a temp to fill your employee's role, you'll probably have to do piles of research trying to find answers to your maternity leave questions.
Sure, you can ask your questions on various HR websites and forums out there, but not only will you wait days for a response, when you eventually get an answer, how will you know it's legally correct according to the Basic Conditions of Employment Act and other labour legislation?
Fear no more! Click here to have all your maternity leave questions answered.
Here's the rule when it comes to retrenching Bronwyn after she returns from maternity leave
The rule is, if you decide to retrench an employee who's on maternity leave, or who's just returned from maternity leave like Bronwyn, the reasons must be genuine.
Essentially, you must have valid reasons. You can't dismiss her just because you're afraid she might get pregnant again.
In addition to having genuine reasons, you mustn't neglect your consultation obligations towards your employee.
Let's say your company is undergoing a restructuring exercise.
You consult with all affected employees and after applying fair and objective selection criteria, you retrench an employee who's just returned from maternity leave for operational reasons. In this case, the reason for dismissal is genuine.
But, if you dismiss an employee for operational reasons just because she's taken maternity leave, the reason for her dismissal won't be genuine.
If your decision to retrench is a sham, you risk having to compensate your employee with 24 months' pay if she takes you to the CCMA!
There you have it: Before you decide to retrench Bronwyn who's just returned from maternity leave, make sure you have a genuine reason. And remember, a dismissal on the basis of pregnancy, intended pregnancy, or any reason related to pregnancy is automatically unfair.
PS: For more information on maternity leave, check out Your Maternity Leave Solution.
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