Discrimination – Mahlangu v Samancor

18 May 2020 (LAC)

Mahlangu v Samancor Chrome Ltd (Eastern Chrome Mines)
Here the employee was employed as an underground heavy-duty truck driver. She fell pregnant for the second time in a period of three years and reported her pregnancy to the respondent on 28 May 2014. In accordance with the respondent’s health and safety policy, it relieved her of her hazardous responsibilities underground with immediate effect. The employee’s maternity leave was to commence on 29 November 2014. She was placed on unpaid leave from 04 June 2014 to 28 November 2014. The Company set out that this was because it was unable to find her a suitable alternative position. The employee took issue with the fact that she was the only pregnant employee who was not offered alternative employment by the respondent before her maternity leave commenced. At Arbitration the Employee won everything including 5 months for unfair discimination.
At Labour Court the Judge reversed the decision and the Employee got NOTHING.
The union then sought to appeal the matter and the Appeal Judgment was written by Savage AJA with the other two Judges concurring. Acting Judge on Appeal Savage found that because the mine had not placed the employee into an alternative position this amounted to differentiation and that such differentiation amounted to unfair discrimination. She set out that the mine had unfairly discriminated against the employee on the prohibited ground of pregnancy and awarded the employee the salaries for the period she had been on forced unpaid leave.
This is a poor decision as there was no discrimination only an unfair labour practice. Simply put the Employee was entitled to be placed as soon as a position arose,

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