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Horror story of a pregnant woman in mining

Publish date: 14 November 2017
Issue Number: 82
Diary: A Matter of Justice
Category: A Matter of Justice

 

Want to know why so few women work in the South African mining industry? – Ask Tshegofatso Manyetsa. She will tell you a personal and financial horror story that throws light on an important but little-considered issue among the very many problems experienced by women miners. The blatant unfairness of her story has even prompted a Labour Court judge to criticise both unions and parliamentary lawmakers for not taking proper steps to safeguard women like her.

 

Manyetsa started working for the New Kleinfontein gold mine outside Johannesburg in 2009 as an underground mining electrician. Since March 2010 she has been a plant electrician in the mine’s metallurgical department. By May 2014, when she discovered she was pregnant, she was a financially independent woman, earning around R32 000 a month. She told her direct supervisor once she knew she was pregnant and, as her area of work is considered hazardous, the mine was obliged to move her to ‘risk-free alternative’ work, in terms of its 2013 policy on pregnant staff.

 

But there was virtually no work that the company considered suitable to offer her, and very soon Manyetsa joined a number of other women employed by the mine, all forced to sit on the sidelines, without work and without pay, for the duration of their pregnancy.

 

Plant management told the mine’s human resources supervisor that it wanted Manyetsa to stay at the plant offices and carry out administrative duties during her pregnancy. HR officials said there was no position available there at that time. And she could not simply be accommodated without an existing position ‘as that would have been unfair to all other pregnant employees who were already on unpaid maternity leave while awaiting to be placed in alternative suitable positions’.

 

Of the one job she was offered, the Labour Court judge who would later hear her case commented: ‘The less said about the position, the better.’ It was a R5 000 a month receptionist job, and when she heard the pay figures, Manyetsa withdrew from the selection process.

 

As a result, like other pregnant women miners for whom no ‘suitable alternative work’ could be found, she was suspended without pay for the rest of her pregnancy, until she could start collecting a ‘nominal amount’ of government unemployment maternity benefits for 17 weeks. Even this ‘nominal figure’ is skewed in the case of women like Manyetsa. It is based on the women’s average pay for the previous six months – and where someone has been put on unpaid suspension this will obviously impact on the average amount to be considered when calculating government benefits.

 

Her unpaid suspension put enormous financial and other strains on Manyetsa, who had to give up her residence and her vehicle, and become completely dependent on her family, until November 2014 when she became eligible for four months’ paid maternity leave.

 

Incensed at the situation, she referred a dispute to the CCMA the day after she was officially put on unpaid suspension. When conciliation failed, she asked the Labour Court for a declaration that what happened to her amounted to unfair discrimination and for an order that she be paid the actual monetary loss she incurred, almost R160 000.

 

In addition, she asked the court to award damages. This a court would be empowered to do under the Employment Equity Act if it was satisfied that she was the victim of unfair discrimination. The damages for which she asked was the total salary she would have been paid over the five months she was suspended.

 

Manyetsa’s is obviously not the only problem faced by women in the industry. Some women miners have been raped and killed; many others suffer sexual harassment every day from their male counterparts and must put up with problems such as uniforms that don’t fit, and common changing areas. But there is a difference here: it is much easier to fix the suspension problem than to change the attitudes of men underground to their female co-workers. As the court explained, all those months without pay for all those women for whom alternative work could not be found, were the result of a loophole in the law that both Parliament and the unions have failed to close.

 

As a result, she and others in her position suffer ‘devastating consequences’, said Judge Edwin Tlhotlhalemaje. In his opinion ‘any unfair, unjust and unreasonable consequence flowing from (an employee’s) pregnancy is directly attributable to the shortfalls in legislation meant to protect them. The facts in this case highlight the inadequacies in our (laws) meant to protect pregnant employees especially in the mining industry.’

 

The mine’s policy is supposed to fit with the relevant legislation and that in turn is intended to reflect the International Labour Organisation’s recommendations. But while the ILO says that a woman should be moved to another post ‘without loss of pay’ or, if this is not possible, that she should be given ‘paid leave’, both SA’s laws and the mine’s policy simply say employers must make every effort to place a pregnant staffer in an alternative, more appropriate position ‘if possible’. Crucially, however, the law and the policy make no reference to ‘paid leave’ where such a position does not exist.

 

You have to wonder why the unions have not taken up the issue – are women unimportant in the unionised mining sector; perhaps too few to be bothered about? Even more to the point, why has Parliament, with its strong women’s presence, done nothing to close the gap?

 

In the end, obviously much against his convictions, the judge was forced to find that the mine had not infringed its workplace policy, nor had it acted unlawfully in suspending Manyetsa without pay. Clearly the mine had tried to find alternative work for her, but without success, and so, since her suspension was legally neither unfair nor irrational, her court claim had to be dismissed.

 

Deciding not to award costs against her, the judge spoke again of the failure of legislative measures and of the unions to negotiate for fair policies where pregnant employees must temporarily leave their normal work. As a result, he concluded, the provisions of the Basic Conditions of Employment Act ‘clearly fall short’ of international recommendations.

 

In a country committed to equity, and where discrimination on the grounds of pregnancy is outlawed in the Bill of Rights, the story of Manyetsa and all those other women moved from hazardous mining work, sitting at home, without pay, for the duration of their pregnancy, can only be called outrageous.

Judgment

- Carmel Rickard