Punished for falling pregnant. This is how Tshegofatso Manyetsa felt after the company she works for forced her to take extended, unpaid maternity leave.
And while a Labour Court judge sympathised, he ruled against her complaint of unfair discrimination, saying a loophole in the law meant women were often still "unintended casualties of their own pregnancies".
"Any unfair, unjust and unreasonable consequence flowing from a female employee's pregnancy is directly attributable to the shortfalls in legislation," Judge Edwin Tlhotlhalemaje said in his ruling this month.Manyetsa had to stop work because her job as an underground electrician was hazardous to her pregnancy because of chemicals, ionising radiation, gases and fumes.
The company's maternity policy was to find a risk-free alternative job for her while she was pregnant. But it did not have one and forced her to take 100 days' unpaid maternity leave.
Manyetsa went from earning close to R32,000 a month to having no salary. She had to move out of her apartment and into a back room in a nearby township.
"I was actually even angry that I was pregnant; I didn't enjoy my pregnancy at all. It was a tough time because I never had money. I was so stressed because I knew that I also needed to take care of my family and my other child," said Manyetsa, who went into "early labour as a result of the stress".
The 37-year-old works as an electrician at the New Kleinfontein Gold Mine near Springs in Gauteng. The mine is a subsidiary of Gold One Africa Limited.
After disclosing her pregnancy in May 2014, she was given administrative duties. A receptionist post became available but she did not take it because it paid only R5,000 a month. A position for control-room supervisor became available, but mine officials said she was not qualified.Manyetsa was put on unpaid maternity leave from July 3 to November 20. She then took four months' paid maternity leave before returning to work in March 2015.
In the Labour Court, she claimed the mine's policy discriminated against her. She sought compensation for monetary loss and damages, totalling almost R240,000.
The court had to decide whether the mine's policy contravened the Basic Conditions of Employment Act.
Section 26 of the act states that employers may not permit pregnant employees to perform hazardous work. During pregnancy, and for a period of six months after the birth, the employer must provide the employee with suitable alternative work if the original work poses a danger to her health, and if it is practicable to provide alternative work.
Lawyers for the mine argued that Manyetsa's interpretation that she was guaranteed suitable alternative employment on no less favourable terms and conditions was wrong.
According to court documents, the mine denied that placing a pregnant employee on extended unpaid maternity leave was discriminatory, adding that "insofar as it [is], such discrimination was rational and not unfair, or is otherwise justifiable".
Tlhotlhalemaje ruled in favour of the mine. However, he said that although great strides had been made to protect pregnant women in the workplace, women continued to find themselves in "unenviable" positions.
Manyetsa, who returned to work four months after giving birth, said she still felt cheated.
"It makes me feel so angry that someone just robbed us. And from what I've seen, it still doesn't make sense. I was ready to see justice being done, but I don't feel like that happened."I'm actually still [credit] blacklisted. I had to borrow money all the time to make sure that my other child had lunch."
Johan Olivier, Gauteng president of the South African Society for Labour Law, said the law was not clear on the lengths an employer needed to go to find a suitable alternative position for a pregnant employee.
"To the extent that no such suitable alternative position exists, or where it is not practicable, the law is silent on what the employer is required to do [i.e. place the employee on paid/unpaid suspension or paid/unpaid extended maternity leave]. This is where the lacuna in the law lies."
Olivier said the only way in which all pregnant employees could get increased benefits, particularly in relation to those forced to suspend work due to hazardous risks, was for legislation to be amended to place an obligation on an employer to pay the employee for the period of maternity leave and any forced extended maternity leave. Other alternatives would be for the UIF legislation to be changed to allow for greater benefits.
The mine, represented by law firm ENSafrica, said it was unable to comment because the lawyer who dealt with the case was in arbitration.
A National Union of Mineworkers spokesman, Livhuwani Mammburu, said the union needed to challenge such "unacceptable" loopholes in the law...