- The employee was suspended while pregnant after a workplace dispute.
- The CCMA found her rights to maternity benefits had been violated.
- The employer disputes the salary and commission awarded for the maternity leave period.
A Cape Town medical practice is accused of stopping a pregnant employee from accessing maternity benefits after suspending her, withholding her salary and later dismissing her following maternity leave.
The dispute between Dr Muller Smit Inc and former employee Yolani Loubser began during her pregnancy in 2022 and centres on unpaid salary, maternity leave, and her right to claim maternity benefits.
Loubser had worked for the practice since February 2019. On 6 March 2022, she was confronted over alleged misconduct and suspended on full pay. The employer instructed its attorney to oversee discussions to resolve the dispute.
On 14 March, Loubser told the attorney she had been booked off work because of pregnancy-related health issues. Negotiations continued through her lawyer, but the parties failed to reach an agreement.
After alleging that her March and April salaries had not been paid, Loubser referred a dispute to the CCMA in May 2022. Her maternity leave began on 25 May.
Maternity benefits became the central issue
While she was on maternity leave, the parties exchanged correspondence about UIF documentation and her IRP5 certificate. The matter went to arbitration, where the CCMA found that the employer had committed an unfair labour practice and called it “a violation of the Third Respondent’s right to submit a maternity benefits application.”
The commissioner ordered the practice to pay Loubser R190,927.71 in statutory remuneration, which included her basic salary and an average monthly commission for March to November 2022.
The employer disputes the calculations
The employer challenged the award, arguing that the remuneration was calculated incorrectly because it included commission and did not account for four months of unpaid maternity leave. The practice also said the commissioner had not properly considered whether commission was due during the maternity period before making the award.
The Labour Court later ruled that the commissioner had acted unreasonably by refusing condonation for the employer’s rescission application, which was filed less than 12 hours late, without considering its bona fide defence.
Acting Judge W Jacobs set aside the R190,927.71 arbitration award, granted condonation for the late filing and referred the dispute back to the CCMA for a fresh arbitration before a different commissioner.
No costs order was made.
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