|2012 06 12 Labour Court backs family responsibility|
Employers will have to take into account their staff's family responsibilities, especially for primary caregivers, when making decisions in the workplace.
This was the upshot of a Labour Court case in which a Durban metro policewoman, arguing that her family responsibility for her young autistic son required her to have an assigned post with regular working hours, took her bosses to court and won.
While the case – believed to be the first dealing with family responsibility – does not set a legal precedent on the issue, the Legal Resources Centre in Durban says it means employers "can and must reasonably accommodate the family responsibility of their employees".
Captain Suraya Hugo, a single mother, brought the case against eThekwini municipality, claiming that her continual transfers and shift changes were affecting her four-year-old son.
The case was settled with an order that, "to reasonably accommodate the family responsibility of (Hugo), the respondents shall transfer the applicant to a post in the KwaMashu station in which she shall work a fixed day shift from 7am to 4pm, Monday to Friday".
In her court papers, Hugo said that from April 2007 to October 2009, she was stationed at the municipal court and her work hours were from 7am to 4pm.
This placement had suited her as it allowed her to attend to her son's needs. However, between October 2009 and October 2010, she was transferred five times and her work hours were changed.
Hugo's lawyer, from the Legal Resources Centre, Durban, said that metro police had failed to follow their own guidelines on transfers and the Employment Equity Act as family responsibility was protected ground in the legislation.
Willene Holness, attorney for Hugo, said on Tuesday the court order made it clear that employers must take cognisance of their staff's family responsibility.
"There is no judgment on which future litigants can rely.
"However, the court order does set a precedent that employers must reasonably accommodate the family responsibility of their staff," Holness said.
"For parents of children with disabilities, this case will hopefully signal an acceptance that their child-care responsibilities are important and not automatically out-weighed by employers' needs."
Hugo is to report to her new post next month.
She said on Tuesday that she was delighted with the outcome of the case.
"You will not believe how relieved I am. I have won an important victory," Hugo said.
She said the transfers had been stressful for her and her son.
"It had such an adverse (effect) on my son and I felt helpless how to assist him. Routine for an autistic child makes them feel secure, so each time I was transferred, his routine went out the window.
"He would regress and I felt that if had taken 10 steps forward in terms of his progress, he would now go back.
"Seeing him suffering, it broke me."
Hugo said that the order would allow her to be close to her son's school and would mean that his routine would be stable.
"My advice to others in a similar situation is to not bottle things up. They must not be ashamed of having a child with a disability who has special needs."
Holness added that the Legal Resources Centre had decided to take on the case to highlight that employees could ask for consideration for their family responsibility.
"The norm of the ideal worker who can work long hours, unencumbered by family care responsibility, is a thing of the past," he said.
"We hope that this case will expose the unfair discrimination based on family responsibility that many employees in a similar situation are subjected to, and that there is recourse under the Employment Equity Act, which to date has been underutilised."
Jennifer Williams, of the Women's Legal Centre, said the case would develop the court's view of family responsibility.
"Usually people look at family responsibility as being allowed to attend to a sick child or go to a funeral."
This case would lead to people viewing it in a different light. It would hopefully get employees talking about what equal opportunities meant, especially for primary caregivers, Williams said.