Is it legal to retrench somebody while they're on maternity leave?

Baker McKenzie's Johan Botes answers this question and another about retrenching based on LIFO. 

One of the questions that emerged from a recent webinar about how to handle retrenchments during the pandemic was whether it was legal to retrench someone that was on maternity leave. It’s a difficult question that Baker McKenzie’s Employment Practice group head Johan Botes has today answered by saying “the Basic Conditions of Employment Act (BCEA) provides that an employer may not issue a notice of termination of employment to an employee on any period of leave provided in the Act.” That said, Johan says there is no outright or the standard prohibition of engaging with an employee in consultation about a proposed redundancy while they are an employee is on leave.

“As maternity leave is a BCEA leave right, this prohibition on issuing a notice of termination will apply to any period of maternity leave. The company may not issue a notice of termination whilst the employee is on maternity leave,” says Johan, who was alongside Mercedes-Benz South Africa executive director of HR Abey Kgotle, National Union of Mineworkers president Joseph Montisetse, and CHRO SA managing editor Sungua Nkabinde in the webinar that was hosted in July. 

Watch: CHRO SA Webinar on retrenching in tough times

Of course, we always recommend that an employer should be doubly sensitive towards the health and needs of a pregnant employee or an employee who has given birth and is still on maternity leave,” says Johan. 

However, in certain circumstances, Johan believes that an employer may engage with an employee who is on maternity leave and solicit views on a proposed redundancy. The employer may even finalise the consultation with such an employee provided it does not issue a notice of termination of employment in contravention of section 37(5)(a) of the BCEA.

Another question that emerged from the insightful webinar was with regard to selection criteria for retrenchments. With every company trying to emerge with a more robust and multi-skilled workforce, some were interested in finding out if the LIFO (Last In First Out)  principle should be observed.

Johan believes that it is both fair and objective that an employer uses a length of service to select employees to be retained for remaining roles, but this does not mean that it is the only selection criteria. 

“An employer may use any selection criteria agreed with the employees, provided the criteria are not discriminatory in terms of section 6(1) of the EEA. If there is no agreement on selection criteria, the employer may unilaterally determine the selection criteria, but can then be tested on whether it is fair and objective, and correctly implemented,” says Johan, adding that the best-practice approach is to use the best competency fit, or whatever name the business provides for the best fit for the available roles when selecting employees to be retained.