By Jacqueline Dhimes, February 2017.
One of the most common reasons for agitation in a working environment is the pregnant woman who repeatedly makes mistakes. In this case, the majority of employers presume it is not a grave occurrence, they assume the faults, and continue with the working contract, even though this can potentially occasion generate a bad image for the company and create a tense work environment.
Dominican labor laws recognize multiple forms of ending a contract, among them firing and eviction. With eviction, equally for the employer and employee, the employer can choose to simply terminate the work contract out of will of terminating contact, without arguing any cause to explain their decision, nevertheless under no circumstances can it be done this way for the pregnant employee. With regards to firing, contrary to eviction, and on the employers, sole discretion, the decision must be based on a fault from the employee. The legislator takes into account the necessity of the employer who can chose to fire and the particularity surrounding the firing or termination while considering the factors surrounding the working woman, and it is determined that this termination can only occur when faults have been committed.
Article 233 of The Labor Code states that a “woman cannot be fired from her job for being pregnant. All firing, with pregnancy as the reason, is null and void”. From this article we can in effect deduce that the termination of work of the pregnant woman is justified if it is the direct result of a fault committed by said woman; therefore the firing is a direct consequence of the fault not the status of the pregnant woman and her condition.
Women, in general, tend to occupy certain positions, due to the ability to portray trust. Consequently, at times they are put aside, due to their absence at work, often times the result of family-oriented decisions like the ability to carry a child.
Becoming pregnant which in economical terms translates to losses for the company, due to absences that comes with maternity leave (pre and post birth); This equally includes Doctor approved visits and absences that are associated with the pregnancy, which among things places the employee in said circumstances.
Considering these circumstances, it seems logical that the legislator has provisioned the protection of maternity, allowing the firing due to a fault, but subjecting the same said firing to conditions that guarantees the fault has generated the termination of contract and therefore the firing.
This process begins once the fault has been determined, like in any similar case with any other employer who has a fault. The employer has 15 days to exercise their right to fire the employee. During this time-frame, it is within the employers obligations to contact the Department of Labor or local authority to help exercise their rights.
At the same time the employer must submit their intention of firing or terminating the employment contract in such way that the institutions determine if the firing is a result of the pregnancy. Once the solicitation has been made, the employer must wait for the response of the Department of Labor authorizing or denying the firing claim. A negative resolution sanctions the employer by imposing, in the case of exercising their right to fire under any circumstances, what is stated in Article 233 of the Code of Labor. Should the resolution turn out positive the employee has the right to act against the employer at fault.
It is important to mention that by not soliciting the corresponding authorization, the employee doesn’t imply the nullity of the firing, rather it economically sanctions the employer due to the fact of the pregnancy, applying an indemnification payment equivalent to 5 months of the average salary. Contrary to the case of the eviction of a pregnant woman, the law expressly states that with the nullity, the parts, employer and employee, return to preexisting conditions prior to the eviction, maintaining the work link and obligating the employer to restore the corresponding salary.