A chemist employed in the laboratory of a KwaZulu-Natal paint manufacturer was unfairly discriminated against when placed on extended unpaid leave because she was pregnant, a Durban labour court judge has ruled.
Judge Kelsey Allen-Yaman has ruled Induradec Coatings must pay Daisy Moleme the equivalent of 11 months’ salary — more than R700,000 — after she was forced to resign to move back to her family because she had effectively lost her job.
Allen-Yaman said the firm had not obtained the services of a health and safety expert to conduct the required investigation into the possible impact of her continuing to work in the lab, though she was pregnant.
Instead, she said the firm had acted in its own “financial interests”, rendering her unable to support herself or meet her financial obligations.
Though it had been disputed Moleme had been told by a manager the company “was not getting value for money” from her, the judge said “there was no other possible motivation for the decision”.
In finding the company had unfairly discriminated against Moleme on the prohibited ground of pregnancy, Allen-Yaman said she accepted the company had not acted with deliberate intent, but in not obtaining expert advice it had acted with complete indifference to its legal obligations and the negative consequences to Moleme.
Moleme was employed as a chemist to develop products in October 2021.
She notified the company she was pregnant in March 2023, saying she was concerned about her exposure to chemicals.
She requested she be moved out of the lab. The human resources manager informed her the company had never dealt with such an issue. But later that day she was moved into an office.
Allen-Yaman said it was common cause she was not given anything to do.
She was later given a “respirator” and a letter addressed to her doctors, her GP and her gynaecologist asking if it was sufficient for her to use in the lab.
Both responded they were not qualified to give an opinion and suggested the company approach a health and safety officer.
What was required by the company was that it obtain the services of an expert in the field of health and safety
— Judge Kelsey Allen-Yaman
The company then indicated they were putting her on extended, unpaid maternity leave from May 2023. This in spite of Moleme’s objections that it had not been confirmed that she was unable to work in the lab or that she could be given administrative or research duties.
When she was due to return to work in January 2024, she resigned.
In a letter she said she had lost her home and car and her credit record was tainted. She said she had to relocate back to her family home in Johannesburg because of loss of income.
Allen-Yaman, in her recent judgment, referred to the Code of Good Practice on the protection of employees during pregnancy and after the birth of the child, which she said identified legal requirements relevant to health and safety, the methods for assessing and controlling the potential hazards and risks, and steps to be taken to ameliorate those risks.
She said despite the initial position adopted by both Moleme and her manager, it could have been possible for her to have continued working in the lab if the company had, as per the code, properly investigated the matter.
“What was required by the company was that it obtain the services of an expert in the field of health and safety. Without such an investigation, it remained uncertain whether any adjustments to her working conditions within the laboratory could have been made which would have enabled her to continue to perform her job for the remainder of her pregnancy.”
Regarding compensation, the judge said an equivalent of 11 months’ salary would be just and equitable and she ordered that the company pay Moleme’s legal costs.
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