Unfair discrimination based on pregnancy within the mining industry
Bester, Viglia Elizabeth
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This dissertation scrutinises the impact of pregnancy challenges on the mining industry, taking the right of equality and unfair discrimination into consideration. Pre-employment pregnancy testing is an acceptable practice within the current legal framework whereby the MHSA and section 26 of the BCEA place an obligation on the employer to protect employees before and after the birth of a child. This section provides that no work may be performed by an employee that is hazardous to her health or the health of her unborn child. The dissertation synthesises and reviews the practical implications of pregnancy and related challenges of underground employees and all the problems surrounding this matter are dissected. The liability of the employer and the failure of the employee to report her pregnancy status to the employer as soon as she becomes aware of it, can be justifiably treated as misconduct. The justification of the dismissal of an underground employee based on pregnancy is confirmed in light of the legislative obligations placed on the employer. Current legislative measures, which justify an automatically unfair dismissal due to pregnancy, cannot be implemented without considering the Constitution and the employers’ right to economical sustainability. A literature study will be done using current and relevant sources such as books, legislation, court decisions, conference papers and journal articles. Methodological issues will also render it necessary to weigh up different rights through literature sources.
- Law