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Can you fire Jane while she's on maternity leave if you've found out she's stealing?

by , 30 April 2014
Picture this scenario, your employee, Jane, is on maternity leave. While she's been away you've discovered that she's been stealing company property. Now you're stuck with the question of what to do. She's away and, therefore, can't defend herself. But you biggest question is can you fire her at all while she's on maternity leave? Find out here before you make a possibly costly mistake.

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Can you fire an employee while she's on maternity leave? 

No, you can't. Even though Jane has clearly violated company policy, you still can't legally fire her during her maternity leave.  
According to an expert on Labour and HR Club, you can't fire an employee that's on leave. This applies to sick leave, family leave and maternity leave. 
 
This would count as an unfair dismissal and the employee could challenge it at the CCMA. Even if your reason for dismissal is fair, the procedure wasn't. 
 
You must give the employee the opportunity to defend herself and challenge the dismissals.
 
But what happens if she decides to resign during this time?
 
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Can Jane resign while on her maternity leave?

Yes, she can. If she, for example, hears about the accusation, she can choose to just resign instead of face discipline. The only rule around this is that her notice period can't start until she returns to work. 
 
Once her maternity leave entitlements are finished and she's back in the office, then her notice begins. 
The alternative is that you pay her out for that notice period and she can leave immediately. 
These maternity leave rules are quite clear in the BCEA
 
In a situation like Jane's, you'd also then have to consider further legal action against her. You can also with hold pay from annual leave to cover lost property. 
 
Just remember to proceed with caution when it comes to disciplining a pregnant employee. As long as you keep to the basic rules, your employee can't drag you into the CCMA for unfair dismissal. 
 


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