Labour Relations Act, 1995

This Act applies to all employees and job applicants except in relation to security and defence services. The major features of the Act relevant to the employment rights of women may be summarised as follows:

The stated purpose and objects of the Act are set out in s. 1 and include to advance social justice, give affect to fair employment practices in s. 27 of the South African Constitution, and to give effect to ILO obligations.

Section 5 prohibits discrimination against employees and job applicants for excising rights conferred by the Act. Most of the rights relevant to the employment opportunities of women were subject to transitional provisions in this Act and have been moved to the Employment Equity Act 1998. Generally, the rights remaining in the Act relate to trade union membership and organisational rights.

Note that there are special provisions in s. 17 which allow, but restrict, the rights under the Act of the trade union representatives of domestic workers.

For temporary employees, s. 198 of the Act differs from s. 57 of the Employment Equity Act 1998, in that any temporary employment service remains their employer. However, both the client and the temporary employment service are liable for breaches under the Act, and there is provision in s. 198 for this form of work to be governed by a collective agreement.

Unfair dismissal

Unfair dismissal is dealt with in Chapter VIII of the Act:

1. Significantly for women, under s. 186 dismissal includes a failure of an employer to allow an employee to return after maternity leave. Given the importance of atypical working patterns, also of interest is that dismissal can include renewing a contract of employment on less favourable terms.

2. Under s. 187, a dismissal is automatically unfair for a number of reasons which includes:

   1. pregnancy, intended pregnancy or any reason relating to pregnancy; and

   2. unfair direct or indirect discrimination on any arbitrary ground, including amongst other things, gender, sex, or family responsibility.

Other dismissals may also be unfair if the reason for the dismissal is not fair relating to conduct, capacity or operational requirements. In assessing this, under s. 188(2), codes of good practice under the Act are relevant. The Code of Good Practices Regarding Dismissals Based on Operational Requirements has been added to the Act in s. 12 of Schedule 8. The Code deals with dismissals on operational grounds. Paragraph 8 is particularly relevant to women and warns of the need to ensure that dismissals do not have an indirect discriminatory affect. An example given is that selection of part-time workers for dismissal may result in unlawful discrimination against women. Paragraph 9 indicates that the "last in first out" principle may need to be adopted to remain fair, and should not undermine affirmative action programs.