The Constitutional Court obliges the State to pay processing salaries to a worker who was fired while pregnant

The jurisdiction’s courts recognized that the dismissal was not objective and They therefore had to be compensated, without being able to reinstate them in their jobs because the company had ceased its activity. Subsequently, both the administration and the courts They denied the appellant her right to claim from the State, as part of that compensation, the so-called “processing salaries.” in case of insolvency of the businessman. These are those salaries not paid to the worker from the date on which the claim for dismissal was considered to have been filed, until the court ruling that declared it inadmissible, once 9 business days have elapsed from this last date, and from at that time those that exceeded that period of ninety days.

The ruling indicates that the resolutions challenged in this protection affirmed that the right to collect processing salaries from the State only accrued when the dismissal is declared unfair.. That is, because the reasons alleged by the employer for her dismissal are not true, as happened with the colleagues of the protection claimant, but not when the dismissal is declared null, which was the case of the latter as she was pregnant. . Furthermore, the employer also did not prove the objective justification for her dismissal.

Discrimination based on sex

With this approach, the ruling, of which Judge Ricardo Enríquez was the rapporteur, resolves the claim of the appellant, recalling above all its reiterated doctrine on the constitutional proscription of the discrimination based on sex, which includes in the workplace the biological fact of pregnancy as an element or differential factor that exclusively affects women, which requires an area of ​​reinforced protection that translates into the preservation of their professional rights for pregnant working women.

Applying constitutional doctrine to this case, the First Chamber of the Constitutional Court has confirmed that, both the administration and the judicial bodies that intervened in the procedure for payment of processing salaries, by denying the plaintiff her right to this payment because she had been declared Her dismissal was null and void and not unfair like that of her colleagues—who were recognized as having such a right to payment—“placed her in a worse situation than that of workers, finally operating her pregnancy situation as a pernicious element (…), instead of providing the worker with a ‘protective bonus’ due to their biological state.

They point out in the ruling that the conjunction with art. 116.2 of the Law regulating social jurisdiction, a provision that regulates the collection of processing salaries from the State in the event of the employer’s insolvency, had the opposite effect: a evident and unjustified pejorative treatment in relation to the rest of the dismissed colleagues (…).

“Literal and formalist interpretation”

“In this way, the reinforced protection mechanism for pregnant workers legally provided for in article 53.4 b) (of the Workers’ Statute), in order to promote equal opportunities at work and avoid discrimination based on sex, turned against her, because, instead of benefiting, she was placed in a worse condition than the rest of her co-workers, by denying her the right to obtain from the State the part of the salaries that she was legally entitled to assume. , he indicates.

The Court considers that the interpretation made by the appealed resolutions are the result of a “rigorous, literal and formalistic interpretation of ordinary legality”, which, in its consideration, is contrary to the constitutional prohibition of discrimination based on sex included in article 14 of the Constitution.

Consequently, they grant him the requested protection and, as measures to repair his right, they oblige the competent administration to adopt a new decision that is respectful of the fundamental right recognized in that article 14 or, in other words, obliges you to pay those processing salaries