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Davis Sibanda Labour Matters
MANY pregnant women have suffered abuse by their employers once it is discovered, or they disclose they’re pregnant and in most cases the abuse goes unreported.Some employers frown upon employees who fall pregnant and will do everything possible to frustrate the woman to leave or even create cases of misconduct in order to dismiss the woman and avoid the cost of paying for maternity leave.

On one occasion I was part of an interviewing panel when we interviewed amongst others a pregnant woman.

As soon as she left the room one member of the panel asked what a pregnant woman wants at an interview.

We ignored the comment and continued to put the scores we had given the woman. At the end of the interview, she had the highest score and there was no doubt that she was the best candidate.

The head of department where she was to work was prepared to have her and later she went on maternity leave.

Interestingly, female panellists were the most vocal against employing the pregnant woman. It was only after a lengthy debate that reason prevailed and everybody agreed it was better to miss the best candidate for 98 days than to be stuck with second best for thirty years that the pregnant woman got the approval of everybody.

While we do not have well developed case law in Zimbabwe, there are many decided cases from other countries which can serve as a guide.

One such case is a South African Mashava vs Cuzen Woods Attorneys (2000)21 ILJ402(LC) where the employee was dismissed for dishonesty because she had not disclosed she was pregnant.

In fact, Mashava had been employed on probation with a view of doing articles of clerkship with the organisation but on informing the employer she was pregnant she was dismissed and she raised a case of unfair dismissal because of pregnancy.

The employer denied pregnancy was the reason for dismissal but dishonesty.

The legal question that arose in Mashava’s case was whether the employee had an obligation to disclose that she was pregnant.

The court found that the employee had no obligation to disclose to the employer that she was pregnant. I’m of the view that if a similar case arose our courts will be persuaded to take the route taken by the South African Labour Court that a female employee is not obligated to disclose to the employer that she is pregnant.

Employers need to be careful when dealing with pregnant employees as any dismissal that is even remotely related to unfairness, the courts are likely to lift the veil and look at the real reasons for the dismissal.

There are also cases where female employees have been recalled to work before exhausting maternity leave days and in some cases before the women have not fully recovered from delivery.

In some instances, the woman has to take the maid to work so as to breastfeed during breaks because very little time is allowed. All this is unlawful and the employer runs the risk of being sued in the event anything happens to the baby or the mother.

The difficult case is that of female employees on fixed term contract, as in most cases falling pregnant is the end of the relationship between the employer and the employee.

The employer waits for the end of the contract and terminates it even in cases where he could have reasonably re-engaged the woman.

Many women also do not get the one hour for nursing their children for 6 months after returning from maternity leave.

They’re threatened into submission resulting in them foregoing the time to nurse their children.

In conclusion, the problems related to ill-treatment of pregnant women will remain with us for sometime until as a nation we find a solution that protects the women and also makes employers not to feel short-changed when women take maternity leave.

It will also take some education for women on their rights and for employers on legal limits and the need to treat pregnant women in a dignified manner.

Davies Ndumiso Sibanda can be contacted on: E-mail: [email protected]  Cell: 0772 375 235