An overview of maternity protection in Botswana: A critique of the Employment Act through the International Labour Organisation’s Maternity Protection Convention lens

3 2 1 Leave benefits

According to the ILO, maternity leave is vital because pregnancy and childbirth requires of women to halt or reduce their participation in paid work for purposes of child rearing.29 This is expected during the most productive years of a woman’s life which correspond to her reproductive years.30 Consequently, if employers are not compelled to provide maternity leave, women would be placed in a position where they would have to choose between child rearing and fulfilling their liberty to be active participants in the labour market. This results in an indirect discrimination as their male counterparts are less likely to be faced with similar circumstances. Furthermore, leave benefits are essential because there is a need to protect the health of both the expectant mother and child. This affords them adequate time to rest before and after childbirth as is medically advisable to do so.31

Botswana recognises the importance of the above-mentioned factors because leave benefits are an essential component of maternity protection in the Employment Act. In order to qualify for maternity leave benefits, section 113(1) of the Act requires a pregnant female employee to give notice to an employer of her confinement by submitting a written certificate signed by a medical officer or a registered nurse and midwife, certifying that medical officer’s opinion that the employee is likely to go on confinement within six weeks immediately after the date of the certificate. Once the notice is received, the employer must immediately permit the employee to absent herself from work until after confinement. The employer must also not permit the employee or require her to return to work until after the expiry of six weeks immediately after confinement.32 If an employer does not permit the employee to absent herself, such employer will be guilty of an offence and liable to a fine not exceeding P1500 or to imprisonment for a term not exceeding six months or to both.33 If the employer permits the employee to return to work or requires her to perform any work within six weeks immediately after her confinement, the employer shall be liable to a fine not exceeding P1000 or to imprisonment for a term not exceeding six months or to both.34

In essence, upon serving this notice, the female employee is entitled to twelve weeks statutory maternity leave. During this time, she shall not be permitted to come to work or perform any work under her contract of employment. As indicated above, an employer who withholds permission to absent herself or requires her to work after confinement commits an offence under the act. The standard proposed in the Convention is similar in that it requires a pregnant female employee to produce a medical certificate stating the presumed date of childbirth in order to be entitled to leave.35 However, the Convention suggests a minimum period of fourteen weeks maternity leave,36 in contrast with the twelve weeks suggested under the Act. The Convention allows ILO members who are bound by it to further extend this period as may be appropriate in national legislation.37

Note should be taken of the imperative nature of the provisions at section 113(1) of the Employment Act in so far as the delivery of the medical certificate is concerned. In Ramoswetsi v Mpepu Private Senior Secondary School (Pty) Ltd38 the Industrial Court took the view that the provisions of this section require strict compliance as per the rule of interpretation in the section 45 of the Interpretation Act.39 In terms of section 45 of this Act, whenever a provision uses the word “shall”, it is intended that whatsoever needs to be done under that provision is pre-emptory and cannot be dispensed with. For this reason, the Court proceeded to hold that an application for maternity leave must be accompanied by the medical certificate signed by the medical official or midwife. Further, the employee is required to comply with the stipulated timelines. That is, the application for leave must be made at least six weeks prior to the expected date of confinement. If an employee fails to make this application or give notice to the employer in accordance with the section 113(1), then her application for maternity leave will be considered non-compliant with the Act and will result in the loss of maternity leave pay. The applicant in this case was found to have applied for maternity leave eleven days before confinement and her application was not accompanied by the required certificate. For this reason, the Court concluded that her claim for maternity leave pay was unenforceable.

This requirement raises concern because employees who are not aware of their right to apply for maternity leave may innocently make such applications outside the stipulated timeframe and thereby lose their maternity leave pay. This is further exacerbated by the fact that the Employment Act does not stipulate any mechanism within Part XII to ensure that employers raise awareness of the entitlement of employees to maternity benefits under the Act. In my view, the Act needs to make it a requirement for employers to inform employees about maternity leave rights as provided for under the Act or any other collective labour agreements in the workplace. Further, it must be reiterated that employees need to ensure that their applications for maternity leave are done in accordance with the Act at all material times.

Section 113(3) of the Act further requires that within 21 days immediately after confinement, the female employee shall inform the employer of the date of confinement by delivering to the employer the certificate of the midwife certifying that date. This section is intended to inform the employer of the birth of the child, and accordingly entitles the employee to the first instalment of her maternity allowance in terms of section 114(1)(a). The Court in David v Auto & General Supplies40 accentuated that a failure to submit this certificate will be fatal to an employee’s claim for maternity leave pay.

The Act allows for the minimum twelve weeks maternity leave to be increased by two weeks to fourteen weeks where the female employee in question has health-related complications following the confinement.41 The female employee needs to deliver a medical certificate signed by the medical officer or registered nurse/ midwife certifying that she is experiencing an illness arising out of her confinement. Article 5 of the ILO Maternity Convention also incorporates this standard to allow for the extension of the fourteen weeks maternity but leaves it to an ILO member to decide on the duration of the extension in its national law.

3 2 2 Cash benefits

The ILO emphasises that paid maternity leave is vital to the income security of women workers.42 Hence, it is irrational to grant a female worker maternity leave if that worker will not receive any cash benefits for the duration of her absence from work. The Convention generally provides that women absent from work pursuant to the maternity leaves in articles 4 and 5 shall be paid cash benefits in accordance with national law and regulations.43 The Convention does not set a minimum amount, but instead, recommends that the level of benefits be such that the woman can maintain herself and her child in proper conditions of health and with a suitable standard of living.44

According to the Convention, cash benefits may be computed based on a woman’s previous earnings and this shall not be less than two-thirds of her earnings.45 Further, an ILO member is welcome to use other methods to determine the level of benefits, so long as the computation of the benefits is no less than two-thirds of the woman’s previous earnings.46 Whereas the Convention does not define what constitutes previous earnings, it has been observed by the ILO that jurisdictions have assigned divergent meanings to this concept. The ILO’s findings demonstrate that in most jurisdictions previous earnings imply that the employee’s maternity leave pay will be determined according to her basic salary in terms of her contract of employment.47

Article 6(5) of the Convention places an obligation on the ILO member to ensure that conditions requisite to qualify for cash benefits can be satisfied by a large majority of women to whom the Convention applies. This suggests that conditions for qualification should not be so stringent as to exclude women who would otherwise be eligible to benefit. Further, article 6(6) stipulates that a safety net in the form of benefits under social assistance should be availed in cases where a woman does not satisfy the conditions set to qualify for cash benefits under national law. This additional safety net is to be subject to the means-test required for benefits under the social assistance scheme.

It ought to be highlighted that the convention recommends that cash benefits should become payable through compulsory social insurance48 and should not be the individual responsibility of the employer unless if this is agreed on at national law by government and trade unions and employers’ organisations; or if it is provided for in national law by a member state. Under the Employment Act, section 113(5) requires an employer to pay an employee on maternity leave a maternity allowance of not less that 50% of her basic pay or 50thebe for each day of her absence. The final determinant of the allowance to be paid by the employer rests on whichever amount between the two is higher. Whereas social insurance is a preferred model for the payment of maternity allowance under the Convention, the modus adopted by Botswana under the Act does not altogether contravene the Convention.

The point of departure between the Act and the Convention can be found in the manner in which the maternity allowance is to be paid. The model presented by the Act is quite peculiar and demands revisions by law makers. Section 114(1) of the Act indicates that the employer shall pay maternity allowance in three instalments in the following sequence:

1. The first instalment, accounts for the period of absence for the first six weeks (before confinement) and shall be paid within 48 hours immediately after the employee delivers to her employer the certificate in section 113(3) confirming her date of confinement;
2. The second instalment, accounts for the period of absence for the six weeks following the day of confinement and shall be paid on the return of the employee to work. If the six weeks following confinement has been increased due to complications under section 113(4), this instalment will be paid on the day in which she would otherwise have been due to return to work; and
3. The third instalment is applicable where there has been an extension of the leave period pursuant to section 113(4) due to complications following confinement. This allowance is payable within 48 hours immediately after the employee delivers to the employer the certificate thereby required.

It is not apparent from a reading of the Act why an employer is permitted to adopt this model to pay maternity allowances. However, it is the practice of some employers, particularly corporates and parastatals to pay employees their maternity leave allowances as they normally would their monthly wages, as opposed to in instalments.49 Presumably, the model suggested by the Act was meant to cater for small scale employers, who may not be able to pay an employee their full salary for the period of absence of twelve weeks. Be that as it may, this requirement does not comply with the Convention as it does not encompass the entire period of maternity leave as suggested in the Convention.50 A reading of section 114(1) suggests that whilst the employee will be absent on leave for three months, she can only be paid twice, and thrice only under circumstances explained in section 113(4). The manner of payment would be easier if the employee is paid the allowance under normal circumstances as is usually done for her basic salary. In this regard, she would receive 50% of her basic salary for the three months that she is on maternity leave.

Whereas the modus adopted by Botswana to not use social insurance schemes for the payment of maternity leave benefits is acceptable under the Convention, it is noted by the ILO that when social insurance is used, discriminatory practices against the employment of women is averted. The ILO observes that where employers are liable to pay for maternity benefits, the interests of women workers may be jeopardised in that employers become reluctant to hire, retain or promote pregnant workers or women with family responsibilities.51 Employers may also find reasons to dismiss pregnant employees in order to avoid paying the costs of wage replacements during maternity leave.52 While there is currently no concrete evidence nor research on the prevalence of prejudice suffered by women in Botswana’s labour market arising from maternity related issues or family responsibilities, it cannot, in the absence of evidence to the contrary, be negated that such acts are totally non-existent. Furthermore, it should be highlighted that the adoption of social insurance-based payments may cater for the position of self-employed women workers and independent contractors, who as highlighted above may not typically find coverage under the current legal framework.

The Employment Act should be celebrated for the fact that it compels the employer to pay maternity allowance in the unfortunate circumstance of the death of a pregnant female employee whilst she is absent on maternity leave.53 Payment of maternity allowance under this provision is done to align with the requirements of section 30 of the Act which instructs the employer to pay all benefits due to an employee whose contract of employment is terminated due to her death. The provision in section 114(2) is open-ended in that it obliges the employer to pay the maternity allowance of a pregnant employee who dies from any cause before or on the day of her confinement or after her confinement. Consequently, the death of an employee does not absolve the employer from fulfilling its obligation under the Act, irrespective of the employee’s cause of death.

Finally, note should be taken of the fact that Botswana’s framework falls short of the standard proposed in article 6(6) of the Convention. Currently, Botswana does not have cash-based social assistance programmes specifically tailored for pregnant women. Employed females would likely not be eligible to benefit under the available programmes because a means-test is normally applied across various social assistance schemes. Current schemes are only designed to assist citizens who have little to no resources to sustain themselves.54 However, primary health care remains available for all expectant mothers in Botswana, but it does not provide cash benefits that may enable the mother to maintain herself and her child in the manner recommended at article 6(2) of the Convention.55

3 2 3 Employment protection and non-discrimination

The ILO observes that maternity and childbirth may be a ground upon which women are discriminated against in the workplace.56 Hence, the Convention emphasises on the need to protect the employment of female workers and guard against their discrimination based on their reproductive function. For this reason, article 8(1) of the Convention makes it unlawful for an employer to terminate the employment of a woman during her pregnancy, whilst she is absent on maternity leave, or during a period following her return to work. Termination of employment may be permitted when it is for reasons unrelated to her pregnancy or childbirth and its consequences or nursing. In this particular instance, an employer who terminates a contract of employment bears the burden of proving that the reasons for the termination of employment are unrelated to an employee’s pregnancy or childbirth and nursing. Note should also, by extension, be taken of the fact that the ILO Termination of Employment Convention provides that family responsibility, pregnancy and absence from work during maternity leave shall not constitute valid reasons for termination of employment.57

Furthermore, signatories to the ILO Maternity Protection Convention are implored to adopt measures to ensure that maternity does not constitute a source of discrimination in employment, including discrimination with regards to access to employment.58 Such measures may include a prohibition in national law of making it a prerequisite that a female job seeker undertakes a pregnancy test except in instances where the employment in question is prohibited or restricted for pregnant or nursing women or where there is a recognised or significant risk to the health of the woman and child.59

Discrimination on the basis of gender is generally prohibited in Botswana’s private employment. Section 3 of the Constitution of Botswana guards against discrimination of people in the Republic on the basis of their sex. From this very fact, section 23(d) of the Employment Act prohibits the termination of an employee’s contract of employment on the ground of their sex. This provision was clarified by the Industrial Court in the case of Moatswi v Fencing Centre (Pty).60 In this particular case, a group of women had been dismissed from their employ because the employer held the opinion that the work involved in the enterprise was heavy and that they could not load or work night shifts.

The Court took the opportunity to distinguish between acts of direct and indirect discrimination that may affect female employees in the workplace. The Court observed that employers may impose regulations or policies that are directly discriminatory or indirectly discriminatory on the basis of sex, marital status and family responsibility. While direct discrimination is overt and is usually aimed at treating a female employee less favourably than a male employee in the same position based solely on the fact that she is a woman, indirect discrimination may not be easily discernible. According to the Court, it occurs where a regulation ostensibly applies to all employees but its application has a disproportionate negative effect on one group of employees. For this reason, it can be deduced from the Court’s reasoning that whilst section 23(d) of the Act does not list pregnancy and childbirth as prohibited grounds of termination, an argument may nonetheless be mounted within this section where a contract of employment has been terminated unfairly.

More specifically, the Act’s protection is limited because it does not protect female job seekers from discrimination based on their reproductive function. Therefore, the Act remains silent on the prohibition of requirements to undergo pregnancy tests by job applicants and females who have already been absorbed into the labour market. In fact, the Act prima facie leaves the position of female job applicants and other female employees alike in a precarious position since section 46 permits medical examinations to be conducted on employees to whom the section applies. This provision may be abused by unscrupulous employers because the Act does not describe the breadth of the medical examinations envisioned under this section. An employer may, as part of the pre-employment tests permitted under this provision, require an employee to undergo a pregnancy test.

The above notwithstanding, the Act prohibits the serving of notice of intention to terminate an employee’s contract of employment whilst she is absent on maternity leave in accordance with the Act. Any notice so given which expires during that period shall be null and void. An employer who contravenes this provision is liable to a fine under section 151(c) of the Act. Consequently, an employer cannot serve notice of intention to terminate employment whilst a female employee is on maternity leave.

It appears that even if notice were to be served before her maternity leave or when the employee returns to work upon completion of the leave, the employer will still bear the burden of proving that the termination is not related to the employee’s maternity or childbirth. This is in accordance with the cardinal rules of fair termination of employment as prescribed by the ILO Termination of Employment Convention. Botswana has not ratified this convention, but the Industrial Court has consistently used its equitable jurisdiction to apply the Convention’s principles to lay down the procedure for the fair termination of employment contracts under the Act.

Whenever an employer seeks to terminate a contract of employment under the Act, the Industrial Court has consistently required that the employer must give good reason for such termination. In Motsumi v First National Bank of Botswana,61 the Court was of the view that:

When an employer wants to dismiss an employee..., he must not merely have a reason for doing so. He must have a good reason for doing so and it is in the court’s discretion to decide on the facts of each particular case whether a good reason for the termination of a contract of employment exists or not.

For this reason, whenever an unfair dismissal dispute is brought before the Industrial Court, the Court is mandated by its equitable jurisdiction to enquire whether such dismissal of an employee is lawful by considering whether there is a fair reason for the dismissal and whether a fair procedure has been followed to dismiss the employee.62 The Court will then assess the facts before it to determine whether the employee’s dismissal is fair.

Section 23 of the Act sets out grounds upon which termination of a contract of employment will not be permitted. This includes reasons that an employee is a member of a trade union, seeks office to represent other employees, makes a complaint in good faith or participates in proceedings against the employer regarding the violation of any law or termination based on discriminatory grounds. It ought to be noted that these grounds are not exhaustive. It rests with the Court to make an assessment on the facts before it to determine whether the employer’s reasons for dismissal are fair.

In David v Auto & General Supplies63 the Court applied article 8 of the ILO Maternity Convention to make a ruling on the substantive fairness of the dismissal of an employee who believed she had been dismissed due to her pregnancy and found that indeed the dismissal was for no other reason except the pregnancy of the employee. It suffices to highlight that an employer is not barred from terminating the employment of a pregnant female employee for acts of misconduct. Section 26(1) of the Act allows the employer to terminate a contract without giving notice where the employee is guilty of a misconduct. The employer must exercise this right within a reasonable time after becoming aware of the misconduct in question. Dismissals of this nature also require that the employer adduce a valid reason.

In Phirinyane v Spie Batignolles64 where an employee had been summarily dismissed, the Court held that:

In disciplinary dismissals there must therefore firstly be a valid reason for the dismissal. This means that there must be sufficient proof, judged objectively, that the employee has in fact committed the alleged misconduct. In the absence of such proof the reason for the dismissal cannot be said to be valid. When an employee denies the alleged misconduct, the employer must place sufficient facts before the chairman of the disciplinary enquiry to establish, not only that the alleged misconduct has been committed but that it has in fact been committed by the employee so charged.

Secondly, the reason for dismissal must also be fair. This means that the dismissal must be justified according to the requirements of natural justice or of equity, ... and in particular the requirement of reasonableness.

Flowing from this, it arises that in addition to having to show that the reason for the dismissal is fair, the Court will enquire whether the procedure followed by the employer in dismissing the employee was fair. The requirement is that the employer must conduct a disciplinary enquiry that complies with the cardinal requirements for a fair disciplinary enquiry unless if the employer cannot reasonably be expected to provide one.65 Nothing exempts the employer who terminates the employment of a pregnant employee or nursing mother from following this procedure when seeking to dismiss her for an alleged misconduct. Should the procedure not be followed, then the dismissal will be declared unfair.

In David v Auto & General Supplies,66 the female employee had been dismissed from her employ upon her return from maternity leave. It appears from the facts before the court that the employee had not complied with the requirements of section 113(1) to give notice to her employer of her confinement six weeks prior to her confinement. She thus went for her maternity leave for a period shorter than that recommended under the Act. She challenged her dismissal on the basis that it was solely due to her pregnancy and the fact that she had been absent on maternity leave. Whereas the Court found that she had not complied with the strict requirements of section 113 entitling her to maternity leave pay, it found that the employer had failed to prove that her dismissal was for a reason unrelated to her pregnancy or childbirth. Furthermore, the Court found that her dismissal was also procedurally unfair as she was never given an opportunity to defend herself. The Court found that there was no valid reason for her dismissal; hence the procedure would not have been fair either way. Whereas the employee was unsuccessful on her claim for maternity leave allowance, the Court awarded her compensation for her unfair dismissal.

Similarly, in Ramoswetsi v Mpepu,67 whereas the employee in question was unsuccessful in her claim for maternity leave allowance due to non-compliance with section 113, the Court held that she had been unfairly dismissed. In this particular instance, the employer had changed its management and the employee was informed upon her return from maternity leave that the establishment did not require her services for the time being; and that she could re-apply for employment should she so desire once she was physically fit. Since the employee was not dismissed for a misconduct, the Court took the opportunity to make an enquiry on whether or not her dismissal was for operational reasons. Having established no evidence of dismissal for misconduct and that she could have been possibly retrenched, the Court concluded that her dismissal was unlawful and awarded her compensation.

On that note, attention of the reader is drawn to the fact that even where the employer purports to have retrenched the pregnant female employee, the employer must prove that the retrenchment was substantively and procedurally fair. Section 25(1) of the Employment Act permits the employer to reduce the size of the workforce by terminating contracts of employment in accordance with the principle of first-in-last out (LIFO). Whereas the courts do not normally interfere with an employer’s decision to economise his enterprise by reducing the size workforce,68 the employer is required to follow a set of principles of equity in carrying out a retrenchment exercise. In Mokaya v Morteo Condotte (Pty) Ltd69 the Industrial Court held that a retrenchment exercise must be substantively and procedurally fair. Essentially, the substantive fairness goes to the commercial decision which remains the prerogative of the employer as highlighted above. The question would then turn on the aspect of procedural fairness; which was captured in Mokaya v Morteo Condottee as follows:

Should an employer decide in principle that retrenchment or any other method which will or is likely to affect an employee is a possible way of achieving that result, then he must forthwith notify all such employees (or their representatives) of the possibility of retrenchment and the reasons for it.

Section 25(2) of the Employment Act requires that the Commissioner of Labour be also notified. The employer must consult with such employees or their representatives at the earliest opportunity. The reason for such consultation is three-fold. Firstly for the parties to seek ways of avoiding or averting the need to terminate the employee’s employment. Secondly, if retrenchment proves unavoidable, then the parties should consult on a fair selection criterion and thirdly consult on ways of alleviating the hardships caused by such retrenchment, e.g. a reasonable severance package, possible alternative employment elsewhere, time off to seek alternative employment, etc. The employees should be given a fair chance to participate meaningfully in such discussions and be invited to propose reasonable alternatives to retrenchment, e.g. reduction in wages, short time, etc. In such consultations. It is the duty of the employer to “consult” and not necessarily to “negotiate”.70

In this case then, the requirements for a fair retrenchment avoid as far much as possible the unfair retrenchment of a pregnant female employee. If the employer fails to demonstrate that he followed the above procedure in the retrenchment of such employee, he will be required to pay compensation to the employee.