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Davies Ndumiso Sibanda
MANY female employees get a raw deal from their employers once they tell their employer or the employer discovers they are pregnant resulting in a number of unfair dismissal cases and related litigation.

The right to maternity leave is a protected right in terms of section 65 of the Constitution of Zimbabwe. The Constitution is express that it gives all pregnant employees a right to at least 90 days paid maternity leave and our Labour Act has done better by granting 98 days. Albeit the Constitution still has to be aligned with grey areas which I shall not cover in this article as they were covered in my earlier articles.

Many women on Fixed Term Contract lose their jobs once they go on maternity leave and the maternity leave goes beyond the life of the Fixed Term Contract. They usually find another employee having been hired in their place and at law the employer will be covered as the employer will only have paid for the period by the Fixed Term Contract and there will be no agreement for the employee to come back after maternity leave. This practice has torn many families apart as they try to balance the child bearing for the woman and her job.

In some instances, despite entitlement to 98 days, many women on Fixed Term Contracts have returned to work soon after giving birth in order to preserve their jobs. Some employers will outright not employ women to avoid carrying maternity leave costs. This is difficult to detect as employers do not openly give reasons for not employing women. The sad thing is that in a large number of cases employers who avoid employing women for fear that they will get pregnant are women themselves.

There are also instances where employees who fall pregnant have agreed to be paid less or not be paid at all during maternity leave as a way of pleasing the employer and preserving their job. While all these acts are illegal, they rarely come to surface other than when the employee is dismissed and feels the dismissal is unfair.

The law provides for an hour a day for looking after the child in the first six months of return to work. However, the employer may ask the employee to forego the one hour on days when there is urgent work. Many employers do not observe this legal requirement and employees do not complain for fear of victimisation.

Vacation leave days continue to accrue during maternity leave, salary increases rights remain in force during maternity leave and service remains unbroken during maternity leave as well. This sad thing however, is that during maternity leave many employers temper with these and workers remain silent for fear of victimisation.

Many ladies during pregnancy period before they go on maternity leave experience health challenges like morning sickness, frequent visits to the toilet and swelling of feet. These have to be dealt with as guided by the doctor as they qualify for sick leave where applicable. However, many women have been victimised for this.

The nature of work sometimes does not talk with the condition of a pregnant woman and the Labour Act is silent on that. However, from a common law perspective, the employer has a legal duty to care for his employees and part of that duty is to recognise the needs of a pregnant employee and adjust her work environment accordingly. While this has raised a lot of debate as to how far the duty to care has to go with pregnant women, the answer is that the employer should do what should be done by a reasonable employer.

In conclusion, pregnant employees will continue to get a raw deal from the workplace and the need to educate the workplace and the need to educate employers and their workers remain. It is a journey that we hope will be completed as our industries develop.

Davies Ndumiso Sibanda can be contacted on: email: [email protected] Or cell No:0772 375 235