Effects of Dismissal Without Cause of a Woman Exercising Maternity Leave
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Background
The legal team at LEXINCORP in El Salvador has been asked to provide an opinion on the effects of the wrongful dismissal of a woman exercising her maternity leave. This refers to a labor termination with employer responsibility, and this document outlines the specifics of the case.
Factual and Legal Situation
Article 113 of the Labor Code states that both wrongful dismissal and dismissal with prior legal proceedings will not terminate the employment contract of a female employee from the time she becomes pregnant until six months after her postnatal leave. In other words, the female worker has protection against dismissal without cause or employer responsibility during this period.
Previously, this protection was applicable from the start of pregnancy until the maternity leave ended. However, following reforms made in 2018 to the aforementioned article, the period was extended to six months after the postnatal leave, thus providing a guarantee of extended job stability.
Therefore, we know that dismissal causes harm to the employee, which is compensated through the payment of economic compensation, proportional vacation days, and the proportional Christmas bonus. These economic concepts, paid in favor of the employee, serve to repair the damage caused by the unilateral termination by the employer. It is important to clarify that all dismissals are presumed to be wrongful if no justified cause exists. Thus, even if the dismissal does not fall under the specific causes of employer responsibility outlined in Article 53 of the Labor Code, the employee’s right to indemnification, proportional vacation days, and Christmas bonus arises without dispute.
In any case, and as mentioned earlier, as long as the female worker is within the window of time indicated in Article 113 of the Labor Code, such a dismissal does not have legal effect, and therefore, the employment contract cannot be considered terminated. However, the employer may reach an agreement with the worker whereby, if the worker is satisfied with the payment of all calculable amounts up to the completion of the extended stability guarantee period, the employer is absolved of all responsibility in this regard and a full settlement is granted to the employer and any other natural or legal person involved in the employment relationship.
It is important to note that workers’ rights are inalienable, as indicated in Article 52 of the Constitution of the Republic. Therefore, the calculation should not only include indemnification, proportional vacation, and Christmas bonus but also the wages that the worker would have earned if not for the employer’s actions during the extended stability period.
As a law firm, we recommend adhering to the provisions of the Labor Code and the other relevant labor laws in the country. However, if an agreement is deemed favorable for both parties, it is possible to correctly document the agreement and payment, ensuring that the worker’s rights are preserved and the employer has a legally binding document to protect against any future claims. Ultimately, such an arrangement is based on good faith and understanding in terms of justice and fairness.
For any questions or further information, you can contact us at +503 2250-7800 or by email at rbolanos@lexincorp.com.
Written by: Lic. Ricardo Bolaños
