The celebration of National Women's Day on 9 August 2023 provides a fitting opportunity for employers to pause and consider whether they are doing enough to implement measures that facilitate women's development in their workplaces.

Given that women are still typically playing a majority role in discharging family responsibilities, working hours or working practices imposed by many employers may disproportionately limit women's ability to discharge family responsibilities. According to a 2018 report by the International Labour Organisation, globally, women spend 76.2% of their time on unpaid care work, more than three times as much as men. This discrepancy has also been recognised by South African courts in various contexts.

In President of the Republic of South Africa and Another v Hugo, the Constitutional Court said:

"[38] For all that it is a privilege and the source of enormous human satisfaction and pleasure, there can be no doubt that the task of rearing children is a burdensome one. It requires time, money and emotional energy. For women without skills or financial resources, its challenges are particularly acute. For many South African women, the difficulties of being responsible for the social and economic burdens of child rearing, in circumstances where they have few skills and scant financial resources, are immense. The failure by fathers to shoulder their share of the financial and social burden of child rearing is a primary cause of this hardship. The result of being responsible for children makes it more difficult for women to compete in the labour market and is one of the causes of the deep inequalities experienced by women in employment. The generalisation upon which the President relied is therefore a fact which is one of the root causes of women's inequality in our society. That parenting may have emotional and personal rewards for women should not blind us to the tremendous burden it imposes at the same time. It is unlikely that we will achieve a more egalitarian society until responsibilities for child rearing are more equally shared." [Footnotes excluded.]

In G v Minister of Home Affairs and Others, the High Court cited with approval, an article by E Bonthuys (Public Policy and the Enforcement of Antenuptial Contracts: W v H. (2018) 135 SALJ) in which it was stated that:

"[56]...'As a consequence of gender discrimination, women tend to be poorer than men and to earn less in the marketplace. Stereotypical roles also entail that women tend to devote more time and effort to childcare and housework which further impacts on their earning capacity.'"

The importance of reconciling family responsibilities with an employer's working hours is illustrated by Section 7(d) of the Basic Conditions for Employment Act, 1997 which requires every employer to regulate the working time of each employee with due regard to the family responsibilities of employees. Failure to comply with section 7(d) may result in a Department of Employment and Labour inspector issuing a compliance order to the employer, which may include the payment of a fine which can range from ZAR300 to ZAR1 500 for each employee who is affected by the non-compliance. If the employer fails to comply with the compliance order, the order the CCMA may issue an award requiring the employer to adhere to the compliance order.

In addition, disregarding employees' family responsibilities may amount to unfair discrimination subject to any defences being available to an employer (such as the inherent requirement of the job defence) and accommodating an employee imposing undue hardship or insurmountable operational difficulty.

In this regard, section 6 of the Employment Equity Act,1998 expressly prohibits unfair discrimination on the grounds of family responsibility. Family responsibility is defined as -

"... the responsibility of employees in relation to their spouse or partner, their dependent children or other members of their immediate family who need their care or support"

It is also possible that an employer's working hours may indirectly discriminate against women on other grounds such as sex, gender, marital status.

In the context of dismissals, section 187(1)(f) of the Labour Relations Act, 1996 provides that a dismissal is automatically unfair if the employer unfairly discriminated against an employee on the grounds of family responsibility.

Not many family responsibility disputes in the workplace have made it to the courts. However, the old CCMA award in Masondo v Crossway Supersave offers food for thought for employers in this regard. In this award, it was held that an employer who compelled an employee with a newly born child to work night shift when there was no compelling business reason to do so, was unfair and amounted to an automatically unfair dismissal.

Although the dispute in Hugo v eThekwini Municipality was settled, it is also of interest. In this matter, the plaintiff instituted proceedings in the Labour Court against her employer, alleging that she was unfairly discriminated against on the grounds of family responsibility and gender. She argued that she had been unreasonably and unilaterally transferred on a number of occasions over a period of one year, which had adverse effects on her autistic child who required a reasonably predictable routine. She further argued that her employer was obliged to reasonably accommodate her responsibilities towards her child. The settlement agreement was made an order of court:

"In order reasonably to accommodate the family responsibility of the applicant, the Respondents shall transfer the Applicant to a post in the KwaMashu Station of the Second Respondent with effect from 1 July 2012, in which post the Applicant shall work a fixed day shift of 07h00 to 16h00, Monday to Friday;..."

Conclusion

As illustrated above, when regulating working hours, employers are required to consider the extent to which the working hours have the potential to impact on its employees' family responsibilities, and in particular those of the women in its workplace. If this is the case the employer should carefully consider whether this impact can be justified on the grounds of its operational requirements, an inherent requirement of the job in question, and to what extent it may be able to reasonably accommodate employees who are so impacted.

Reviewed by Peter le Roux, an Executive Consultant in ENSafrica's Employment practice.

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