A Durban paint company will ask the labour court for leave to appeal against a finding that it had unfairly discriminated against a pregnant worker by sending her on maternity leave without pay, three months ahead of her actual pregnancy leave starting.
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A Durban paint company, who was ordered to pay a former worker more than R700,000 after the Labour Court found that it had unfairly discriminated against the pregnant woman by sending her early on maternity leave without pay, is set on appealing the ruling and will argue that the court has made several erroneous findings against it.
Induradec Coatings Pty in Pinetown has been ordered to pay Tiisetso Daisy Moleme, a chemist working for the company, R724,000 in compensation, which is equivalent to 11 months' salary. The paint company has meanwhile filed an application for leave to appeal the ruling.
As Moleme's job entailed the development of products and research, she became concerned about the chemicals with which she had to work when she became pregnant. After telling her employer that she was pregnant, she expressed her concern to the human resources department and requested to be moved out of the laboratory.
She said she was promised alternative duties in the meantime, but this never happened. Instead, she was told that she was being placed on early maternity leave, without pay. The company explained to Moleme that "this is best for the benefit of both you and your unborn child".
The court ruled that Moleme was unfairly discriminated against on the grounds of pregnancy, but it commented that the company did not act out of malice when it placed her on unpaid, early pregnancy leave. The court also found that the company had failed to establish that Moleme's removal from the lab for the duration of her pregnancy had been necessary.
In its grounds for asking for leave to appeal, the company questioned this and other findings and said the court failed to consider that Moleme was the one who asked to be removed from the laboratory. It questioned how the court could find that Induradec Coatings’s conduct was discriminatory under these circumstances, especially as there was no request from Moleme to be placed back in the lab.
The paint company said the court also erred in dealing with the aspect of compensation to be paid to Moleme. It awarded more than R700,000 in compensation, under circumstances where she would have had less than three months to work before she went on pregnancy leave. She would then have faced the same situation (after going on normal pregnancy leave) as she would have had to obtain UIF payments instead of her salary, the company reasoned.
It questioned how the court could have found that the paint company did not act in bad faith towards Moleme, yet it was ordered to pay her 11 months' salary. This, it said, under circumstances where she only lost out on three months' pay before going on maternity leave.
The paint company added that the court had failed to consider the fact that it had taken steps to find out how to deal with the situation. It pointed out in its application that it has checked with two doctors as well as an occupational health and safety practitioner on an alternative mechanism to be used by Moleme so that she could continue her work in the lab.
No date has yet been set down for the leave to appeal application.