Introduction
Legal Elite Incorporated (LEI), a law firm, interviewed Pretty Precious (PP) for the position of candidate attorney. While the interview went genuinely well, and no questions related to non-working aspects were posed, PP was planning to have a child. In other words, being eight weeks pregnant, she did not disclose the fact that she was pregnant.
PP was appointed for a required position, and she proved to be a responsible, diligent, and hard-working employee. However, when PP’s pregnancy became apparent, the woman faced aggression from the company’s partners, who promised to dismiss her because she concealed her pregnancy to receive a job and subsequent maternity leave. This paper will analyze the situation to provide recommendations for LEI related to the rationale of particular actions to keep its reputation and avoid additional legal challenges.
Evidential Burden
On the one hand, the partners of LEI have understandable motives for expressing negative emotions. LEI cannot be regarded as a large law firm in which the absence of several employees will be unnoticeable. In turn, its two partners rely heavily on the performance of their workers, especially PP. They planned to build a long-term partnership with her based on productivity and mutual trust. However, according to partners, PP acted dishonestly, pursuing her interests. As a result, her maternity leave will hurt the firm’s functioning and professional practice.
On the other hand, the motives for PP’s failure to disclose pregnancy are understandable as well. According to Matotoka and Odeku (2020), “In South Africa, women continue to be discriminated against on the grounds of being pregnant in the workplace, and sometimes they are denied maternity leave, breastfeeding, and childcare facilities” (p. 593). Thus, PP did not disclose her pregnancy, knowing there was a significant risk of not being accepted for the position of a candidate attorney. In addition, because in the South African private sector, maternity leave is unpaid, and PP cannot claim benefits from the Unemployment Insurance Fund (UIF) due to her insufficient contribution to the company’s performance, it is evident that a woman did not tell about her pregnancy as she wanted to work rather than receiving financial support for staying home due to child care.
Prospects of Success and an Employee’s Rights
Thus, in this situation, if PP refers a dispute to the CCMA or Labour Court, the prospects of success are highly considerable as she has legal rights to keep her workplace. According to LRA, the dismissal of women due to pregnancy is prohibited (Matotoka & Odeku, 2020). Moreover, Matotoka and Odeku (2020) state that “Section 187 of the LRA provides that a dismissal is automatically unfair if the employee is dismissed because of her pregnancy, intended pregnancy or a reason related to her pregnancy” (p. 596). In turn, automatically unfair dismissal leads to negative consequences for a company and its responsibility toward an employee, including compensation, reinstatement, and re-employment.
In addition, the fact of pregnancy makes a company’s onus of proof related to the reasons for dismissal highly complicated. For instance, the Code of Good Practice regards dishonesty that leads to the breakdown of trustful relationships in the workplace as a fair reason for dismissal. However, in the case of pregnancy, it is challenging for the company to prove that pregnancy was not involved, and a woman would be appointed if she disclosed her condition.
Moreover, according to BCEA, an employee should be informed about maternity leave one month before. However, there is no employee’s legislated onus to report her pregnancy at any other time. Finally, the firm may fail to prove that PP knew about her pregnancy during the interview.
Recommendations for Further Actions
Therefore, in this case, to avoid violating legal statutes that may impact the firm’s practice, LEI should establish relationships with PP based on legislation and ethical principles that do not presuppose threats and humiliation. Partners’ reactions are determined by their intentions to pursue the best interests of their legal practice and the potential negative consequences connected with PP’s maternity leave. However, the dismissal of PP will be unfair in almost any case.
Conclusion
Thus, it is recommended to communicate with her to explain the inappropriateness of her decision to conceal the pregnancy and discuss potential solutions that could benefit both parties. For instance, as the position of a candidate attorney presupposes training that should be taken to become an attorney, a part of it may be taken online. Moreover, due to the specificity of this position, a more flexible schedule that will allow the combination of professional duties with child care may also be discussed. Together with financial benefits, this strategy will allow LEI to avoid legal misconduct, keep a talented employee, motivate her to return, provide an opportunity for performance, and minimize the risks to the firm’s productivity due to her temporary absence.
Reference
Matotoka, M. D., & Odeku, K. O. (2020). Discrimination on the grounds of pregnancy, denial of maternity leave and lack of conducive environment for nursing mother in the workplace in South Africa. Obiter, 41(3), 593-607.