Learnerships and Pregnancy: Maternity Leave. Learners are entitled to maternity and family responsibility leave. You cannot be fired for being pregnant.
What if I’m pregnant and on a Learnership?
According to Sectoral Determination 5: Learnerships, you cannot be fired for falling pregnant.
Below is the specific legislation on maternity leave, this post covers the relevant clauses: 24-26.
Learnerships and Pregnancy Regulations
This section of Sectoral Determination 5 is about maternity leave for learners. It explains when and how long a learner can take maternity leave, as well as the rules regarding allowances during this time.
Maternity Leave (Clause 24): Learnerships and Pregnancy Regulations
This post covers clauses 24-26 of Sectoral Determination 5: Learnerships.
Maternity leave for learners
Here are the main points: Summary Notes
- A learner can take at least four months of maternity leave.
- During this time, the learner won’t receive their regular allowance.
- Maternity leave can start either four weeks before the expected birth date or when a medical professional says it’s necessary for the learner’s or the baby’s health.
- After giving birth, a learner cannot work for six weeks, unless a doctor or midwife says it’s safe to do so.
- If a learner has a miscarriage or stillbirth in the third trimester, they’re entitled to six weeks of maternity leave, regardless of when the leave started.
- The learner must inform their employer in writing about when they plan to start and return from maternity leave.
- This notification should be given at least four weeks before starting leave, or as soon as reasonably possible if that’s not feasible.
So, in simpler terms, if a learner is going to have a baby, they can take at least four months off work. They won’t get their regular payment during this time. They can start this leave four weeks before the expected due date or if a doctor says it’s needed. After the baby is born, they can’t work for six weeks, unless a doctor says it’s okay. If the learner has a miscarriage or stillbirth later in pregnancy, they still get six weeks of leave. The learner needs to tell their boss in writing when they’ll start and come back from leave. They should do this at least four weeks before starting leave, or as soon as they can if that’s not possible.
Learners entitled to four consecutive months
(1) (a) A learner is entitled to at least four consecutive months’ maternity leave.
(b) A learner is not entitled to receive her allowance during any period of maternity leave she takes.
(2) A learner may begin maternity leave-
- at any time from four weeks before the expected date of birth, unless otherwise agreed; or
- on a date from which a medical practitioner or a midwife certifies that it is necessary for the learner’s health or that of her unborn child.
(3) No learner may work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so.
(4) A learner who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to maternity leave for six weeks after the miscarriage or stillbirth, whether or not the learner had started maternity leave at the time of the miscarriage or stillbirth.
(5) A learner must notify an employer in writing, unless the learner is unable to do so, of the date on which the learner intends to-
- begin maternity leave; and
- return to work after maternity leave.
(6) Notification in terms of subclause (5) must be given-
- at least four weeks before the learner intends to start maternity leave; or
- if it is not reasonably practical to do so, as soon as it is reasonably practical.
Learnerships and Pregnancy
Protection of Learners before and after the birth of a child (Clause 25)
(1) No employer may require or permit a pregnant learner or a learner who is nursing her child to perform work that is hazardous to her health or the health of her child.
- During a learner’s pregnancy, and for a period of six months after the birth of her child, her employer must offer her suitable, alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment, if-
- the learner is required to perform night work, as defined in clause 16 (1) or her work poses a danger to her health or safety or that of her child; and
- it is possible for the employer to do so.
Summary: Protection of Learners before and after the birth of a child (Clause 25)
Employers are not allowed to make pregnant or nursing learners do work that could harm them or their child. During pregnancy and for six months after giving birth, the employer must provide other safe work if the learner’s regular job involves night shifts or is risky. This new job must have the same good terms as their usual one, if possible.
Learnerships and Pregnancy: Family Responsibility Leave and Tragedies (Clause 26)
Perhaps a learner experiences a personal tragedy such as the illness or death of a loved one. Sectoral Determination 5 covers this in the following manner:
(1) This clause applies to a learner-
- who has been in employment with an employer for longer than four months; and
- who works for at least four days a week for that employer.
(2) An employer must grant a learner, during each annual leave cycle, at the request of the learner, three days’ paid leave, which the learner is entitled to take-
- when the learner’s child is born;
- when the learner’s child is sick; or
- in the event of the death of-
- the learner’s spouse or life partner; or
- the learner’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.
(3) An employer must pay a learner for a day’s family responsibility leave-
- the allowance the learner would normally have received for work on that day; and
- on the learner’s usual pay day.
Regulations for Learnerships and Pregnancy
(4) A learner may take family responsibility leave in respect of the whole or a part of a day.
- Before paying a learner for leave in terms of this clause, an employer may require reasonable proof of an event for which the leave was required.
- A learner’s unused entitlement to leave in terms of this clause lapses at the end of the annual leave cycle in which it accrues.
- A collective agreement may vary the number of days and the circumstances under which leave is to be granted in terms of this clause.
 In terms of section 187(1)(e) of the Labour Relations Act, 1995, the dismissal of an employee on account of her pregnancy, intended pregnancy, or any reason related to her pregnancy, is automatically unfair. The definition of dismissal in section 186 of the Labour Relations Act, 1995, includes the refusal to allow an employee to resume work after she has taken maternity leave in terms of any law, collective agreement or contract.
Summary: Learnerships and Pregnancy: Family Responsibility Leave and Tragedies (Clause 26)
If a learner has worked for an employer for more than four months and works at least four days a week, they have certain rights. The employer must give the learner three paid days off each year for situations like the birth of their child, the child being ill, or if a close family member (like a spouse, parent, or child) passes away. The employer must pay the learner for these days like a regular workday.
A learner can use family responsibility leave for part of a day or the whole day. Before paying for this leave, the employer may ask for proof of the event that required it. If a learner doesn’t use this leave during the year, it doesn’t carry over to the next year. An agreement among all the employees can change how many days of leave are allowed and when it can be taken.
Additionally, according to the Labour Relations Act of 1995, it’s considered unfair to fire an employee because she is pregnant, planning to become pregnant, or for any pregnancy-related reasons. This includes not allowing an employee to return to work after taking maternity leave according to the law or any agreements in place.