terminate employment after maternity protection

susanne-ataraza said:

Dear Senor Guzman,
I need to terminate the contract of an employee at the end of her maternity protection.
What is the correct time, at the end of maternity leave or 3 months after she gave birth?
I read in the labour law, that I need permission from the secretar?a de trabajo to terminate the contract between 3 and 6 months after birth. Nobody I talked to seemed to know about this ( including my lawyer!). Is that a serious issue and under which conditions can I get the permisssion?
What is the correct procedure?
Thank you
Susanne

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5.5.Maternity Protection

The Labor Code provides special protection for employees who are pregnant or have recently given birth (Arts. 231 to 243). At will termination by the employer is strictly forbidden during the pregnancy of the employee and up to three months after birth (Art. 232). The pregnant employee has the right to paid maternity leave during the six weeks that precede the probable birth date and the six weeks that follow it (Art. 236). The employee has also the right to three rest periods of 20 minutes each per workday to breast-feed her child (Art. 240).

An employer who terminates a pregnant employee at will or without justifying cause for dismissal will be liable to pay the employee, in addition to the standard severance, the equivalent of five months? salary (Art. 233).

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Conchman said:

I caution everyone for firing any employee here in the DR on 'cause.' You're better off just paying severance pay instead of facing big lawsuit which always happen. Even if you catch employee stealing, unless you get conviction in court of law you will lose the lawsuit that will be 10 times the amount of the severance pay. Lawyers will add up over time hours not paid over years and come up with all kinds of charges. Fighting it alone will cost you more in lawyers fees than severance pay, even if you win.

Not to mention that in many areas like Puerto Plata the judges and lawyers decide how to split up the pot before the case even starts. EMPLOYERS ALWAYS LOSE, very rare exceptions.

Just my 2 cents.

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HOWMAR said:

The tactic we use most sucessfully is to have a representitive from the Labor Department review the matter and documentation before we fire the employee. We have already submitted all documentation to the Labor Dept. as they occur, i.e. excess absence, insubordination, etc. The rep. then questions the employee and asks what their defense is. We then get written permission to fire the employee for cause. Many have tried to fight this to get liquidation, but the judge has always agreed with the finding of the Labor Dept. Rep.
I don't know about your 10 times the severence penalty statement. In the few cases we have lost we were required to pay the person his normal salary from the date he was fired until the case was finally resolved, plus liquidation then due at that point plus attorney fees.
Back to the OP question. We have received permission to fire a pregnant employee for cause. In the case of the OP where the termination will be "at will" the employee must receive the three months salary after the birth and then normal liquidation at that point. No permission is needed as long as you pay the three months post-natal salary.

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Conchman said:

Please note that we once had labour department approval to fire someone on cause, only to find out from our lawyers that we should settle the case (for much more than the initial liquidation) as our case was 'hopeless.'

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HOWMAR said:

Did you ever find out how much the other side's lawyer split with your lawyer? Time to find another lawyer if he said pay after followiing procedures he advised.

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