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The one instance when your employee mustn't return to work from maternity leave

by , 11 April 2014
So you know your employee's entitled to four month's maternity leave after the birth of her baby, but did you know one instance when you can't allow her to return to work? If you don't know, you'll be in direct contravention of Section 25(3) of the Basic Conditions of Employment Act (BCEA) and could land up with a costly trip to the Labour Court...

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The BCEA says this about your employee's return to work following maternity leave

An employee may not work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies she's fit to do so (Section 25(3) of the BCEA).

But it's not only the BCEA that has something to say about your employee's right to return to work after maternity leave...

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The Labour Relations Act says your employee has a right to return to her original position after she returns from maternity leave

My Wage explains that in terms of the Labour Relations Act, women are entitled to their jobs when they return from maternity leave and shouldn't be discriminated against.

The site adds 'law considers it unfair dismissal if an employer doesn't allow an employee to resume work after availing her maternity leave.'

Also keep in mind that you're legally required to protect your employee before and after the birth of her child.

So not only is your employee not allowed to work for six weeks after the birth of her child, and entitled to her job when she returns from maternity leave, but, you can't allow her to perform work that's dangerous to her or the health of her child. This is important if she's nursing her child after maternity leave.

The bottom line: 'Pregnant employees are strongly protected under existing South African labour law. There are no fewer than six pieces of legislation that require employers to treat pregnant and post-pregnant employees with the greatest of care,' says labour law expert Ivan Israelstam in an article on Labour Guide.

Now that you know what the BCEA says regarding your employee's return to work following maternity leave, make sure you comply to avoid a trip to the Labour Court.



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