Firing a nursing mother costs employer a year’s pay

The Sala Segunda, the high labor court, has awarded a nursing mother 12 months pay because she was laid off from her job. The court said the labor termination was discriminatory.

The case involved an unnamed mother and an employer in southern Costa Rica. The original case was heard in the Juzgado de Trabajo of the I Circuito Judicial de la Zona Sur in Pérez Zeledón.

The woman received maternity leave in May 2010. When she returned to work she was fired in September for what the company said was a reorganization of personnel, according to a Poder Judicial summary.

The majority of the Sala Segunda panel determined that the amount due the woman was changed by Ley Nº 8107, which introduced reforms to the labor code and prohibited acts of discrimination.

The court also cited international agreements that protect workers so that they are not objects of arbitrary and irrational exclusion in the workplace.

The Sala Segunda also cited an international Labor Organization agreement that protects nursing mothers.

The Poder Judicial summary did not clarify if discrimination had been established or if the Sala Segunda just assumed that this existed because the woman had been fired while nursing. The labor code provides time off with pay so that working mothers can nurse their newborns. The amount of time depends on the work schedule.

The Ministerio de Trabajo y Seguridad Social defines this period of lactancia as three months after
returning from maternity leave. But the time can be extended on the order of a physician. New mothers are allowed 15 minutes every three working hours or a half hour twice a work day to nurse their infant.

Traditionally women are actually allowed an hour a day at the beginning or end of the work day to do so, the ministry noted.

The labor court in Pérez Zeledón originally awarded the woman nine months pay of about 3 million colons or about $6,000, but the employer’s lawyers appealed to a higher tribunal. That panel awarded the woman just 10 days salary for her dismissal.

The woman’s lawyers appealed to the Sala Segunda, which basically reinstated the lower court decision. In addition, the woman had received three months pay upon dismissal, the Poder Judicial noted.

The labor ministry has said for a long time to employers that nursing mothers cannot be terminated in their job unless there is a just cause, such as a disciplinary violation.  In that case, employers usually first seek approval from the labor ministry.

What is new in this case is the amount of compensation if mothers are fired illegally.

Because women are entitled to four months of paid leave to give birth, employers frequently try to get rid of pregnant workers when they learn of the condition. Although this is clearly illegal, many woman do not contest the firing.

An employer only pays half the salary during the four months. The remainder is picked up by the Caja Costarricense de Seguro Social if the worker is enrolled legally.

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