One topic that generates more controversy at the workplace is the dismissal of pregnant women.
This is that judges are often faced with claims which must determine whether it was a discriminatory measure, if there was just cause and if you really met all legal requirements in order to implement aggravated damages.
The Labor Contract Law (LCT) provides special protection to women during pregnancy and in situations that went on maternity leave, in order to ensure some stability for the company where they work. In this sense, Protectoria enjoy a period of 7 ½ months before and after childbirth.
In a recent case, the Chamber of Labour ordered to pay a compensation dependent on the aforementioned increase, equivalent to 13 pay-who joined the compensation for dismissal without just cause and because the judges gave reason to the employee, who had to consider dismissal, following that the company had not paid their entire salary.
Thus, despite being a constructive dismissal, also considering the lateness of the reply signature in the dependent claims, the judges asserted the said legal protection.
Non-payment and dismissal
The worker summoned the company to cancel you pay gap due to him saying that, if not perceive, they would consider parting.
The firm had failed to pay full wages and to pay the highest percentage to make ends meet and then the rest.
As there was no response, the subsidiary, through a telegram met with his warning and considered dismissed. For this reason, the respective compensation.
At that time, the company said that wages were available, but this response was useless since the dispute finally resolved in court.
In the case, the employee said his decision to respond to the lack of response from their employer, a previous report. Also argued that charging a portion of your salary in black and asked to be applied the corresponding fines.
also requested a compensation of 13 salary aggravated because he was enjoying the period of lactation as mother had been very recently.
The judge considered justified the decision to break the employment relationship with the employer's silence your close and upheld the claim in its entirety.
Then, the firm appealed the decision to the House.
For this purpose, said the resolution would be wrong because, from their point of view, answered the summons. He also indicated that corresponded to ignore the constructive dismissal, as there was no effective communication, and stated that the discontinuance telegram was not authentic.
"The burden of proof of lack of authenticity of a letter document rests with those who deny its reception, "explained the maids. For this reason, the company should certify that they received the first telegram intimatorio.
The judges took into account that, in answering the letter where the subsidiary document was terminate the employment relationship, the defendant stated verbatim: "In response to telegrams respond, unpaid wages available
...". Thus, for judges was" conclusively established that the company received two telegrams sent by the employee, the intimatorio and communication of constructive dismissal, and you just react after receiving the second, so there a lateness of his response. "
company also complained about the order to pay the compensation of Article 178 of the LCT, because, he said, the employee did not invoke the discontinuance telegram did not demonstrate that the dismissal was due to indirect as mothers.
For judges, this situation could not be discussed because the subsidiary had given birth just four months before being considered for dismissal.
According to judges, labor rupture occurred within the "term suspicion "of Article 178 of the LCT.
Based on this precept," presumably, then, that the dismissal was due to maternity reasons, "said the maids.
"The special allowance, provided for dismissal because of motherhood, is also from the assumption of constructive dismissal because, otherwise, the employer would be enough to make intolerable the implementation of the employment relationship for pregnant women, obtaining by indirection what the law to ban him directly, "reads the statement.
Meanwhile, another questioned the court ruling revolved around the payment of remuneration in black. The employee said he noticed a "better pay" of $ 1,600, consisting of the registered salary of $ 1,081.49 and $ 519 allegedly paid to him in black. The
maids gave reason to the company because, according to testimony, there were no references to alleged payments unregistered but only realized the existence of arrears in the payment of salaries and expenses of carrying out enough - 'to month's bill late "-.
Consequently, the judges dismissed the application of the presumption in Article 55 of the LCT, as there could be errors in the books that had the company where the claimant is registered.
In total, then recalculate the amount of damages, the judge set the damages at $ 40,986.37 plus interest. Voices
"Companies should adopt a comprehensive approach to the summons of the worker, even when it is defective or fails to comply with the requirements set by the Contract Law, "said Juan Manuel Minghini, Minghini study, Joy & Associates.
For the specialist, this means that companies must do more than the letter of the rule requires. For that reason, he suggested "extreme the collections and their own claim against the orders of the employees to demonstrate, in court, which was de good faith that the law required, "the specialist.
compensation on the increase because of pregnancy," the Labor Contract Law, aggravated damages imposes in terms of trying to protect a greater extent, certain situations of working women. Thus, it is protected from dismissal when pregnant, "explained Juan Carlos Cerutti and Gustavo Unamuno, Cerutti study partners, Unamuno & Daraga.
" It protects the workers by imposing a higher cost to the company for the case that the unlink company or the employee is deemed terminated. Not prohibited but are more expensive, "he added.
Source: Professional Infobae
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