Dismissal of a pregnant employee while on probation

Court's decision

In the judgment of Nadia v B & B t/a Harvey World Travel Northcliff (JS 547/10) [2013] ZALCJHB 168 (30 July 2013), the employee commenced employment on 22 February 2010 subject to a probation period of three months.

On 12 April 2010 she found out that she was three months pregnant. She announced this to her employer on 13 April 2010. The employer congratulated the employee, but stated that it was dissatisfied with the employee's work performance. As a token of sympathy, the employer offered the employee an alternative position at a reduced salary.

The next day the employee was handed a letter giving her two weeks' notice of dismissal which she signed. On 28 April 2010 the employee informed the employer that she would not be accepting the offer of an alternative position and left the services of the employer. She later referred a dispute alleging automatically unfair dismissal based on her pregnancy.

The Court confirmed that if an employee alleges her dismissal was for prohibited reasons, for example pregnancy, then the employee would have to prove that the employer was aware of the pregnancy and that she was dismissed because of her pregnancy. The employee alleged that the fact that she was given notice of dismissal the day after she disclosed her pregnancy, caused her to suspect that there was a link between her pregnancy and her dismissal.

The employer denied this and cited numerous incidents in which it had addressed various aspects of the employee's work performance and late-coming, prior to her disclosure of her pregnancy. The Court held that mere suspicion on its own cannot lead to a conclusion that the employee's pregnancy was the dominant or more likely reason for the termination of the employment relationship.

If an employee's performance has been evaluated, and despite being afforded a fair opportunity to meet the required performance standard, the employee is still found to be lacking, it is for the employer to decide whether to continue the employment relationship. In instances where such an employee is still on probation, less compelling reasons for the dismissal will be accepted.

The Court held that the employer's decision to terminate the employee's services was taken in view of problems surrounding her performance, and had nothing to do with her pregnancy.

Importance of the case

An employee who alleges that his or her dismissal was automatically unfair bears the onus of proving same. The mere fact that the employee is pregnant is no bar to her being dismissed should the circumstances so merit. The reason for the dismissal must however be unrelated to her pregnancy.